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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/5983-h.zip b/5983-h.zip Binary files differnew file mode 100644 index 0000000..0bbfd0c --- /dev/null +++ b/5983-h.zip diff --git a/5983-h/5983-h.htm b/5983-h/5983-h.htm new file mode 100644 index 0000000..974643c --- /dev/null +++ b/5983-h/5983-h.htm @@ -0,0 +1,10808 @@ +<?xml version="1.0" encoding="us-ascii"?> + +<!DOCTYPE html + PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd" > + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en"> + <head> + <title> + The Institutes of Justinian, by Justinian + </title> + <style type="text/css" xml:space="preserve"> + + body { margin:5%; background:#faebd0; text-align:justify} + P { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + blockquote {font-size: 97%; font-style: italic; margin-left: 10%; margin-right: 10%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; margin-left: 10%; margin-right: 10%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 10%; margin-bottom: .75em;} + .toc2 { margin-left: 20%;} + div.fig { display:block; margin:0 auto; text-align:center; } + div.middle { margin-left: 20%; margin-right: 20%; text-align: justify; } + .figleft {float: left; margin-left: 0%; margin-right: 1%;} + .figright {float: right; margin-right: 0%; margin-left: 1%;} + .pagenum {display:inline; font-size: 70%; font-style:normal; + margin: 0; padding: 0; position: absolute; right: 1%; + text-align: right;} + pre { font-style: italic; font-size: 90%; margin-left: 10%;} + +</style> + </head> + <body> +<pre xml:space="preserve"> + +Project Gutenberg's The Institutes of Justinian, by Caesar Flavius Justinian + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Institutes of Justinian + +Author: Caesar Flavius Justinian + +Translator: J.B. Moyle + +Release Date: April 11, 2009 [EBook #5983] +Last Updated: February 6, 2013 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN *** + + + + +Produced by Howard Sauertieg, and David Widger + + + + + + +</pre> + <p> + <br /><br /> + </p> + <h1> + THE INSTITUTES OF JUSTINIAN + </h1> + <p> + <br /><br /> + </p> + <h3> + Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn,<br /> + Barrister-at-Law, Fellow and Late Tutor of New College, Oxford + </h3> + <p> + <br /> + </p> + <h4> + Fifth Edition (1913) + </h4> + <p> + <br /> <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + PROOEMIVM + </h2> + <p> + In the name of Our Lord, Jesus Christ. + </p> + <p> + The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the + Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the + Africans, pious, prosperous, renowned, victorious, and triumphant, ever + august, + </p> + <p> + To the youth desirous of studying the law: + </p> + <p> + The imperial majesty should be armed with laws as well as glorified with + arms, that there may be good government in times both of war and of peace, + and the ruler of Rome may not only be victorious over his enemies, but may + show himself as scrupulously regardful of justice as triumphant over his + conquered foes. + </p> + <p> + With deepest application and forethought, and by the blessing of God, we + have attained both of these objects. The barbarian nations which we have + subjugated know our valour, Africa and other provinces without number + being once more, after so long an interval, reduced beneath the sway of + Rome by victories granted by Heaven, and themselves bearing witness to our + dominion. All peoples too are ruled by laws which we have either enacted + or arranged. Having removed every inconsistency from the sacred + constitutions, hitherto inharmonious and confused, we extended our care to + the immense volumes of the older jurisprudence; and, like sailors crossing + the mid-ocean, by the favour of Heaven have now completed a work of which + we once despaired. When this, with God's blessing, had been done, we + called together that distinguished man Tribonian, master and exquaestor of + our sacred palace, and the illustrious Theophilus and Dorotheus, + professors of law, of whose ability, legal knowledge, and trusty + observance of our orders we have received many and genuine proofs, and + especially commissioned them to compose by our authority and advice a book + of Institutes, whereby you may be enabled to learn your first lessons in + law no longer from ancient fables, but to grasp them by the brilliant + light of imperial learning, and that your ears and minds may receive + nothing useless or incorrect, but only what holds good in actual fact. And + thus whereas in past time even the foremost of you were unable to read the + imperial constitutions until after four years, you, who have been so + honoured and fortunate as to receive both the beginning and the end of + your legal teaching from the mouth of the Emperor, can now enter on the + study of them without delay. After the completion therefore of the fifty + books of the Digest or Pandects, in which all the earlier law has been + collected by the aid of the said distinguished Tribonian and other + illustrious and most able men, we directed the division of these same + Institutes into four books, comprising the first elements of the whole + science of law. In these the law previously obtaining has been briefly + stated, as well as that which after becoming disused has been again + brought to light by our imperial aid. Compiled from all the Institutes of + our ancient jurists, and in particular from the commentaries of our Gaius + on both the Institutes and the common cases, and from many other legal + works, these Institutes were submitted to us by the three learned men + aforesaid, and after reading and examining them we have given them the + fullest force of our constitutions. + </p> + <p> + Receive then these laws with your best powers and with the eagerness of + study, and show yourselves so learned as to be encouraged to hope that + when you have compassed the whole field of law you may have ability to + govern such portion of the state as may be entrusted to you. + </p> + <p> + Given at Constantinople the 21st day of November, in the third consulate + of the Emperor Justinian, Father of his Country, ever august. + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + Contents + </h2> + <table summary="" style="margin-right: auto; margin-left: auto"> + <tr> + <td> + <a href="#link2H_4_0001"> <b>BOOK I.</b> </a> + </td> + <td> + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0002"> TITLE I. </a> + </td> + <td> + OF JUSTICE AND LAW + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0003"> TITLE II. </a> + </td> + <td> + OF THE LAW OF NATURE, THE LAW OF NATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0004"> TITLE III. </a> + </td> + <td> + OF THE LAW OF PERSONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0005"> TITLE IV. </a> + </td> + <td> + OF MEN FREE BORN + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0006"> TITLE V. </a> + </td> + <td> + OF FREEDMEN + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0007"> TITLE VI. </a> + </td> + <td> + OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0008"> TITLE VII. </a> + </td> + <td> + OF THE REPEAL OF THE LEX FUFIA CANINIA + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0009"> TITLE VIII. </a> + </td> + <td> + OF PERSONS INDEPENDENT OR DEPENDENT + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0010"> TITLE IX. </a> + </td> + <td> + OF PATERNAL POWER + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0011"> TITLE X. </a> + </td> + <td> + OF MARRIAGE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0012"> TITLE XI. </a> + </td> + <td> + OF ADOPTIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0013"> TITLE XII. </a> + </td> + <td> + OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0014"> TITLE XIII. </a> + </td> + <td> + OF GUARDIANSHIPS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0015"> TITLE XIV. </a> + </td> + <td> + WHO CAN BE APPOINTED GUARDIANS BY WILL + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0016"> TITLE XV. </a> + </td> + <td> + OF THE STATUTORY GUARDIANSHIP OF AGNATES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0017"> TITLE XVI. </a> + </td> + <td> + OF LOSS OF STATUS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0018"> TITLE XVII. </a> + </td> + <td> + OF THE STATUTORY GUARDIANSHIP OF PATRONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0019"> TITLE XVIII. </a> + </td> + <td> + OF THE STATUTORY GUARDIANSHIP OF PARENTS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0020"> TITLE XIX. </a> + </td> + <td> + OF FIDUCIARY GUARDIANSHIP + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0021"> TITLE XX. </a> + </td> + <td> + OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0022"> TITLE XXI. </a> + </td> + <td> + OF THE AUTHORITY OF GUARDIANS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0023"> TITLE XXII. </a> + </td> + <td> + OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0024"> TITLE XXIII. </a> + </td> + <td> + OF CURATORS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0025"> TITLE XXIV. </a> + </td> + <td> + OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0026"> TITLE XXV. </a> + </td> + <td> + OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0027"> TITLE XXVI. </a> + </td> + <td> + OF GUARDIANS OR CURATORS WHO ARE SUSPECTED + </td> + </tr> + <tr> + <td> + + </td> + <td> + + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0028"> <b>BOOK II.</b> </a> + </td> + <td> + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0029"> TITLE I. </a> + </td> + <td> + OF THE DIFFERENT KINDS OF THINGS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0030"> TITLE II. </a> + </td> + <td> + OF INCORPOREAL THINGS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0031"> TITLE III. </a> + </td> + <td> + OF SERVITUDES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0032"> TITLE IV. </a> + </td> + <td> + OF USUFRUCT + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0033"> TITLE V. </a> + </td> + <td> + OF USE AND HABITATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0034"> TITLE VI. </a> + </td> + <td> + OF USUCAPION AND LONG POSSESSION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0035"> TITLE VII. </a> + </td> + <td> + OF GIFTS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0036"> TITLE VIII. </a> + </td> + <td> + OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0037"> TITLE IX. </a> + </td> + <td> + OF PERSONS THROUGH WHOM WE ACQUIRE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0038"> TITLE X. </a> + </td> + <td> + OF THE EXECUTION OF WILLS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0039"> TITLE XI. </a> + </td> + <td> + OF SOLDIERS' WILLS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0040"> TITLE XII. </a> + </td> + <td> + OF PERSONS INCAPABLE OF MAKING WILLS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0041"> TITLE XIII. </a> + </td> + <td> + OF THE DISINHERISON OF CHILDREN + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0042"> TITLE XIV. </a> + </td> + <td> + OF THE INSTITUTION OF THE HEIR + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0043"> TITLE XV. </a> + </td> + <td> + OF ORDINARY SUBSTITUTION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0044"> TITLE XVI. </a> + </td> + <td> + OF PUPILLARY SUBSTITUTION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0045"> TITLE XVII. </a> + </td> + <td> + OF THE MODES IN WHICH WILLS BECOME VOID + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0046"> TITLE XVIII. </a> + </td> + <td> + OF AN UNDUTEOUS WILL + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0047"> TITLE XIX. </a> + </td> + <td> + OF THE KINDS AND DIFFERENCES BETWEEN HEIRS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0048"> TITLE XX. </a> + </td> + <td> + OF LEGACIES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0049"> TITLE XXI. </a> + </td> + <td> + OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0050"> TITLE XXII. </a> + </td> + <td> + OF THE LEX FALCIDIA + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0051"> TITLE XXIII. </a> + </td> + <td> + OF TRUST INHERITANCES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0052"> TITLE XXIV. </a> + </td> + <td> + OF TRUST BEQUESTS OF SINGLE THINGS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0053"> TITLE XXV. </a> + </td> + <td> + OF CODICILS + </td> + </tr> + <tr> + <td> + + </td> + <td> + + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0054"> <b>BOOK III.</b> </a> + </td> + <td> + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0055"> TITLE I. </a> + </td> + <td> + OF THE DEVOLUTION OF INHERITANCES ON INTESTACY + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0056"> TITLE II. </a> + </td> + <td> + OF THE STATUTORY SUCCESSION OF AGNATES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0057"> TITLE III. </a> + </td> + <td> + OF THE SENATUSCONSULTUM TERTULLIANUM + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0058"> TITLE IV. </a> + </td> + <td> + OF THE SENATUSCONSULTUM ORFITIANUM + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0059"> TITLE V. </a> + </td> + <td> + OF THE SUCCESSION OF COGNATES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0060"> TITLE VI. </a> + </td> + <td> + OF THE DEGREES OF COGNATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0061"> TITLE VII. </a> + </td> + <td> + OF THE SUCCESSION TO FREEDMEN + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0062"> TITLE VIII. </a> + </td> + <td> + OF THE ASSIGNMENT OF FREEDMEN + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0063"> TITLE IX. </a> + </td> + <td> + OF POSSESSION OF GOODS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0064"> TITLE X. </a> + </td> + <td> + OF ACQUISITION BY ADROGATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0065"> TITLE XI. </a> + </td> + <td> + OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0066"> TITLE XII. </a> + </td> + <td> + OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0067"> TITLE XIII. </a> + </td> + <td> + OF OBLIGATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0068"> TITLE XIV. </a> + </td> + <td> + OF REAL CONTRACTS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0069"> TITLE XV. </a> + </td> + <td> + OF VERBAL OBLIGATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0070"> TITLE XVI. </a> + </td> + <td> + OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0071"> TITLE XVII. </a> + </td> + <td> + OF STIPULATIONS MADE BY SLAVES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0072"> TITLE XVIII. </a> + </td> + <td> + OF THE DIFFERENT KINDS OF STIPULATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0073"> TITLE XIX. </a> + </td> + <td> + OF INVALID STIPULATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0074"> TITLE XX. </a> + </td> + <td> + OF FIDEJUSSORS OR SURETIES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0075"> TITLE XXI. </a> + </td> + <td> + OF LITERAL OBLIGATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0076"> TITLE XXII. </a> + </td> + <td> + OF OBLIGATION BY CONSENT + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0077"> TITLE XXIII. </a> + </td> + <td> + OF PURCHASE AND SALE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0078"> TITLE XXIV. </a> + </td> + <td> + OF LETTING AND HIRING + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0079"> TITLE XXV. </a> + </td> + <td> + OF PARTNERSHIP + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0080"> TITLE XXVI. </a> + </td> + <td> + OF AGENCY + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0081"> TITLE XXVII. </a> + </td> + <td> + OF QUASI-CONTRACTUAL OBLIGATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0082"> TITLE XXVIII. </a> + </td> + <td> + OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0083"> TITLE XXIX. </a> + </td> + <td> + OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED + </td> + </tr> + <tr> + <td> + + </td> + <td> + + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0084"> <b>BOOK IV.</b> </a> + </td> + <td> + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0085"> TITLE I. </a> + </td> + <td> + OF OBLIGATIONS ARISING FROM DELICT + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0086"> TITLE II. </a> + </td> + <td> + OF ROBBERY + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0087"> TITLE III. </a> + </td> + <td> + OF THE LEX AQUILIA + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0088"> TITLE IV. </a> + </td> + <td> + OF INJURIES + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0089"> TITLE V. </a> + </td> + <td> + OF QUASI-DELICTAL OBLIGATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0090"> TITLE VI. </a> + </td> + <td> + OF ACTIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0091"> TITLE VII. </a> + </td> + <td> + OF CONTRACTS MADE WITH PERSONS IN POWER + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0092"> TITLE VIII. </a> + </td> + <td> + OF NOXAL ACTIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0093"> TITLE IX. </a> + </td> + <td> + OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0094"> TITLE X. </a> + </td> + <td> + OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0095"> TITLE XI. </a> + </td> + <td> + OF SECURITY + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0096"> TITLE XII. </a> + </td> + <td> + OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0097"> TITLE XIII. </a> + </td> + <td> + OF EXCEPTIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0098"> TITLE XIV. </a> + </td> + <td> + OF REPLICATIONS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0099"> TITLE XV. </a> + </td> + <td> + OF INTERDICTS + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0100"> TITLE XVI. </a> + </td> + <td> + OF THE PENALTIES FOR RECKLESS LITIGATION + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0101"> TITLE XVII. </a> + </td> + <td> + OF THE DUTIES OF A JUDGE + </td> + </tr> + <tr> + <td> + <a href="#link2H_4_0102"> TITLE XVIII. </a> + </td> + <td> + OF PUBLIC PROSECUTIONS + </td> + </tr> + <tr> + <td> + </td> + </tr> + </table> + <p> + <a name="link2H_4_0001" id="link2H_4_0001"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + BOOK I. + </h2> +<pre xml:space="preserve"> + TITLES + I. Of Justice and Law + II. Of the law of nature, the law of nations, + and the civil law + III. Of the law of persons + IV. Of men free born + V. Of freedmen + VI. Of persons unable to manumit, and the + causes of their incapacity + VII. Of the repeal of the lex Fufia Caninia + VIII. Of persons independent or dependent + IX. Of paternal power + X. Of marriage + XI. Of adoptions + XII. Of the modes in which paternal power + is extinguished + XIII. Of guardianships + XIV. Who can be appointed guardians by will + XV. Of the statutory guardianship of agnates + XVI. Of loss of status + XVII. Of the statutory guardianship of patrons + XVIII. Of the statutory guardianship of parents + XIX. Of fiduciary guardianship + XX. Of Atilian guardians, and those appointed + under the lex Iulia et Titia + XXI. Of the authority of guardians + XXII. Of the modes in which guardianship + is terminated + XXIII. Of curators + XXIV. Of the security to be given by guardians + and curators + XXV. Of guardians' and curators' grounds + of exemption + XXVI. Of guardians or curators who are + suspected +</pre> + <p> + <a name="link2H_4_0002" id="link2H_4_0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE I. OF JUSTICE AND LAW + </h2> + <p> + Justice is the set and constant purpose which gives to every man his due. + </p> + <p> + 1 Jurisprudence is the knowledge of things divine and human, the science + of the just and the unjust. + </p> + <p> + 2 Having laid down these general definitions, and our object being the + exposition of the law of the Roman people, we think that the most + advantageous plan will be to commence with an easy and simple path, and + then to proceed to details with a most careful and scrupulous exactness of + interpretation. Otherwise, if we begin by burdening the student's memory, + as yet weak and untrained, with a multitude and variety of matters, one of + two things will happen: either we shall cause him wholly to desert the + study of law, or else we shall bring him at last, after great labour, and + often, too, distrustful of his own powers (the commonest cause, among the + young, of ill-success), to a point which he might have reached earlier, + without such labour and confident in himself, had he been led along a + smoother path. + </p> + <p> + 3 The precepts of the law are these: to live honestly, to injure no one, + and to give every man his due. + </p> + <p> + 4 The study of law consists of two branches, law public, and law private. + The former relates to the welfare of the Roman State; the latter to the + advantage of the individual citizen. Of private law then we may say that + it is of threefold origin, being collected from the precepts of nature, + from those of the law of nations, or from those of the civil law of Rome. + </p> + <p> + <a name="link2H_4_0003" id="link2H_4_0003"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW + </h2> + <p> + 1 The law of nature is that which she has taught all animals; a law not + peculiar to the human race, but shared by all living creatures, whether + denizens of the air, the dry land, or the sea. Hence comes the union of + male and female, which we call marriage; hence the procreation and rearing + of children, for this is a law by the knowledge of which we see even the + lower animals are distinguished. The civil law of Rome, and the law of all + nations, differ from each other thus. The laws of every people governed by + statutes and customs are partly peculiar to itself, partly common to all + mankind. Those rules which a state enacts for its own members are peculiar + to itself, and are called civil law: those rules prescribed by natural + reason for all men are observed by all peoples alike, and are called the + law of nations. Thus the laws of the Roman people are partly peculiar to + itself, partly common to all nations; a distinction of which we shall take + notice as occasion offers. + </p> + <p> + 2 Civil law takes its name from the state wherein it binds; for instance, + the civil law of Athens, it being quite correct to speak thus of the + enactments of Solon or Draco. So too we call the law of the Roman people + the civil law of the Romans, or the law of the Quirites; the law, that is + to say, which they observe, the Romans being called Quirites after + Quirinus. Whenever we speak, however, of civil law, without any + qualification, we mean our own; exactly as, when 'the poet' is spoken of, + without addition or qualification, the Greeks understand the great Homer, + and we understand Vergil. But the law of nations is common to the whole + human race; for nations have settled certain things for themselves as + occasion and the necessities of human life required. For instance, wars + arose, and then followed captivity and slavery, which are contrary to the + law of nature; for by the law of nature all men from the beginning were + born free. The law of nations again is the source of almost all contracts; + for instance, sale, hire, partnership, deposit, loan for consumption, and + very many others. + </p> + <p> + 3 Our law is partly written, partly unwritten, as among the Greeks. The + written law consists of statutes, plebiscites, senatusconsults, enactments + of the Emperors, edicts of the magistrates, and answers of those learned + in the law. + </p> + <p> + 4 A statute is an enactment of the Roman people, which it used to make on + the motion of a senatorial magistrate, as for instance a consul. A + plebiscite is an enactment of the commonalty, such as was made on the + motion of one of their own magistrates, as a tribune. The commonalty + differs from the people as a species from its genus; for 'the people' + includes the whole aggregate of citizens, among them patricians and + senators, while the term 'commonalty' embraces only such citizens as are + not patricians or senators. After the passing, however, of the statute + called the lex Hortensia, plebiscites acquired for the first time the + force of statutes. + </p> + <p> + 5 A senatusconsult is a command and ordinance of the senate, for when the + Roman people had been so increased that it was difficult to assemble it + together for the purpose of enacting statutes, it seemed right that the + senate should be consulted instead of the people. + </p> + <p> + 6 Again, what the Emperor determines has the force of a statute, the + people having conferred on him all their authority and power by the 'lex + regia,' which was passed concerning his office and authority. + Consequently, whatever the Emperor settles by rescript, or decides in his + judicial capacity, or ordains by edicts, is clearly a statute: and these + are what are called constitutions. Some of these of course are personal, + and not to be followed as precedents, since this is not the Emperor's + will; for a favour bestowed on individual merit, or a penalty inflicted + for individual wrongdoing, or relief given without a precedent, do not go + beyond the particular person: though others are general, and bind all + beyond a doubt. + </p> + <p> + 7 The edicts of the praetors too have no small legal authority, and these + we are used to call the 'ius honorarium,' because those who occupy posts + of honour in the state, in other words the magistrates, have given + authority to this branch of law. The curule aediles also used to issue an + edict relating to certain matters, which forms part of the ius honorarium. + </p> + <p> + 8 The answers of those learned in the law are the opinions and views of + persons authorized to determine and expound the law; for it was of old + provided that certain persons should publicly interpret the laws, who were + called jurisconsults, and whom the Emperor privileged to give formal + answers. If they were unanimous the judge was forbidden by imperial + constitution to depart from their opinion, so great was its authority. + </p> + <p> + 9 The unwritten law is that which usage has approved: for ancient customs, + when approved by consent of those who follow them, are like statute. + </p> + <p> + 10 And this division of the civil law into two kinds seems not + inappropriate, for it appears to have originated in the institutions of + two states, namely Athens and Lacedaemon; it having been usual in the + latter to commit to memory what was observed as law, while the Athenians + observed only what they had made permanent in written statutes. + </p> + <p> + 11 But the laws of nature, which are observed by all nations alike, are + established, as it were, by divine providence, and remain ever fixed and + immutable: but the municipal laws of each individual state are subject to + frequent change, either by the tacit consent of the people, or by the + subsequent enactment of another statute. + </p> + <p> + 12 The whole of the law which we observe relates either to persons, or to + things, or to actions. And first let us speak of persons: for it is + useless to know the law without knowing the persons for whose sake it was + established. + </p> + <p> + <a name="link2H_4_0004" id="link2H_4_0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE III. OF THE LAW OF PERSONS + </h2> + <p> + In the law of persons, then, the first division is into free men and + slaves. + </p> + <p> + 1 Freedom, from which men are called free, is a man's natural power of + doing what he pleases, so far as he is not prevented by force or law: + </p> + <p> + 2 slavery is an institution of the law of nations, against nature + subjecting one man to the dominion of another. + </p> + <p> + 3 The name 'slave' is derived from the practice of generals to order the + preservation and sale of captives, instead of killing them; hence they are + also called mancipia, because they are taken from the enemy by the strong + hand. + </p> + <p> + 4 Slaves are either born so, their mothers being slaves themselves; or + they become so, and this either by the law of nations, that is to say by + capture in war, or by the civil law, as when a free man, over twenty years + of age, collusively allows himself to be sold in order that he may share + the purchase money. + </p> + <p> + 5 The condition of all slaves is one and the same: in the conditions of + free men there are many distinctions; to begin with, they are either free + born, or made free. + </p> + <p> + <a name="link2H_4_0005" id="link2H_4_0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IV. OF MEN FREE BORN + </h2> + <p> + A freeborn man is one free from his birth, being the offspring of parents + united in wedlock, whether both be free born or both made free, or one + made free and the other free born. He is also free born if his mother be + free even though his father be a slave, and so also is he whose paternity + is uncertain, being the offspring of promiscuous intercourse, but whose + mother is free. It is enough if the mother be free at the moment of birth, + though a slave at that of conception: and conversely if she be free at the + time of conception, and then becomes a slave before the birth of the + child, the latter is held to be free born, on the ground that an unborn + child ought not to be prejudiced by the mother's misfortune. Hence arose + the question of whether the child of a woman is born free, or a slave, + who, while pregnant, is manumitted, and then becomes a slave again before + delivery. Marcellus thinks he is born free, for it is enough if the mother + of an unborn infant is free at any moment between conception and delivery: + and this view is right. + </p> + <p> + 1 The status of a man born free is not prejudiced by his being placed in + the position of a slave and then being manumitted: for it has been decided + that manumission cannot stand in the way of rights acquired by birth. + </p> + <p> + <a name="link2H_4_0006" id="link2H_4_0006"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE V. OF FREEDMEN + </h2> + <p> + Those are freedmen, or made free, who have been manumitted from legal + slavery. Manumission is the giving of freedom; for while a man is in + slavery he is subject to the power once known as 'manus'; and from that + power he is set free by manumission. All this originated in the law of + nations; for by natural law all men were born free—slavery, and by + consequence manumission, being unknown. But afterwards slavery came in by + the law of nations; and was followed by the boon of manumission; so that + though we are all known by the common name of 'man,' three classes of men + came into existence with the law of nations, namely men free born, slaves, + and thirdly freedmen who had ceased to be slaves. + </p> + <p> + 1 Manumission may take place in various ways; either in the holy church, + according to the sacred constitutions, or by default in a fictitious + vindication, or before friends, or by letter, or by testament or any other + expression of a man's last will: and indeed there are many other modes in + which freedom may be acquired, introduced by the constitutions of earlier + emperors as well as by our own. + </p> + <p> + 2 It is usual for slaves to be manumitted by their masters at any time, + even when the magistrate is merely passing by, as for instance while the + praetor or proconsul or governor of a province is going to the baths or + the theatre. + </p> + <p> + 3 Of freedmen there were formerly three grades; for those who were + manumitted sometimes obtained a higher freedom fully recognised by the + laws, and became Roman citizens; sometimes a lower form, becoming by the + lex Iunia Norbana Latins; and sometimes finally a liberty still more + circumscribed, being placed by the lex Aelia Sentia on the footing of + enemies surrendered at discretion. This last and lowest class, however, + has long ceased to exist, and the title of Latin also had become rare: and + so in our goodness, which desires to raise and improve in every matter, we + have amended this in two constitutions, and reintroduced the earlier + usage; for in the earliest infancy of Rome there was but one simple type + of liberty, namely that possessed by the manumitter, the only distinction + possible being that the latter was free born, while the manumitted slave + became a freedman. We have abolished the class of 'dediticii,' or enemies + surrendered at discretion, by our constitution, published among those our + decisions, by which, at the suggestion of the eminent Tribonian, our + quaestor, we have set at rest the disputes of the older law. By another + constitution, which shines brightly among the imperial enactments, and + suggested by the same quaestor, we have altered the position of the + 'Latini Iuniani,' and dispensed with all the rules relating to their + condition; and have endowed with the citizenship of Rome all freedmen + alike, without regard to the age of the person manuumitted, and nature of + the master's ownership, or the mode of manumission, in accordance with the + earlier usage; with the addition of many new modes in which freedom + coupled with the Roman citizenship, the only kind of freedom now known may + be bestowed on slaves. + </p> + <p> + <a name="link2H_4_0007" id="link2H_4_0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR INCAPACITY + </h2> + <p> + In some cases, however, manumission is not permitted; for an owner who + would defraud his creditors by an intended manumission attempts in vain to + manumit, the act being made of no effect by the lex Aelia Sentia. + </p> + <p> + 1 A master, however, who is insolvent may institute one of his slaves heir + in his will, conferring freedom on him at the same time, so that he may + become free and his sole and necessary heir, provided no one else takes as + heir under the will, either because no one else was instituted at all, or + because the person instituted for some reason or other does not take the + inheritance. And this was a judicious provision of the lex Aelia Sentia, + for it was most desirable that persons in embarrassed circumstances, who + could get no other heir, should have a slave as necessary heir to satisfy + their creditors' claims, or that at least (if he did not do this) the + creditors might sell the estate in the slave's name, so as to save the + memory of the deceased from disrepute. + </p> + <p> + 2 The law is the same if a slave be instituted heir without liberty being + expressly given him, this being enacted by our constitution in all cases, + and not merely where the master is insolvent; so that in accordance with + the modern spirit of humanity, institution will be equivalent to a gift of + liberty; for it is unlikely, in spite of the omission of the grant of + freedom, that one should have wished the person whom one has chosen as + one's heir to remain a slave, so that one should have no heir at all. + </p> + <p> + 3 If a person is insolvent at the time of a manumission, or becomes so by + the manumission itself, this is manumission in fraud of creditors. It is, + however, now settled law, that the gift of liberty is not avoided unless + the intention of the manumitter was fraudulent, even though his property + is in fact insufficient to meet his creditors' claims; for men often hope + and believe that they are better off than they really are. Consequently, + we understand a gift of liberty to be avoided only when the creditors are + defrauded both by the intention of the manumitter, and in fact: that is to + say, by his property being insufficient to meet their claims. + </p> + <p> + 4 The same lex Aelia Sentia makes it unlawful for a master under twenty + years of age to manumit, except in the mode of fictitious vindication, + preceded by proof of some legitimate motive before the council. + </p> + <p> + 5 It is a legitimate motive of manumission if the slave to be manumitted + be, for instance, the father or mother of the manumitter, or his son or + daughter, or his natural brother or sister, or governor or nurse or + teacher, or fosterson or fosterdaughter or fosterbrother, or a slave whom + he wishes to make his agent, or a female slave whom he intends to marry; + provided he marry her within six months, and provided that the slave + intended as an agent is not less than seventeen years of age at the time + of manumission. + </p> + <p> + 6 When a motive for manumission, whether true or false, has once been + proved, the council cannot withdraw its sanction. + </p> + <p> + 7 Thus the lex Aelia Sentia having prescribed a certain mode of + manumission for owners under twenty, it followed that though a person + fourteen years of age could make a will, and therein institute an heir and + leave legacies, yet he could not confer liberty on a slave until he had + completed his twentieth year. But it seemed an intolerable hardship that a + man who had the power of disposing freely of all his property by will + should not be allowed to give his freedom to a single slave: wherefore we + allow him to deal in his last will as he pleases with his slaves as with + the rest of his property, and even to give them their liberty if he will. + But liberty being a boon beyond price, for which very reason the power of + manumission was denied by the older law to owners under twenty years of + age, we have as it were selected a middle course, and permitted persons + under twenty years of age to manumit their slaves by will, but not until + they have completed their seventeenth and entered on their eighteenth + year. For when ancient custom allowed persons of this age to plead on + behalf of others, why should not their judgement be deemed sound enough to + enable them to use discretion in giving freedom to their own slaves? + </p> + <p> + <a name="link2H_4_0008" id="link2H_4_0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA + </h2> + <p> + Moreover, by the lex Fufia Caninia a limit was placed on the number of + slaves who could be manumitted by their master's testament: but this law + we have thought fit to repeal, as an obstacle to freedom and to some + extent invidious, for it was certainly inhuman to take away from a man on + his deathbed the right of liberating the whole of his slaves, which he + could have exercised at any moment during his lifetime, unless there were + some other obstacle to the act of manumission. + </p> + <p> + <a name="link2H_4_0009" id="link2H_4_0009"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT + </h2> + <p> + Another division of the law relating to persons classifies them as either + independent or dependent. Those again who are dependent are in the power + either of parents or of masters. Let us first then consider those who are + dependent, for by learning who these are we shall at the same time learn + who are independent. And first let us look at those who are in the power + of masters. + </p> + <p> + 1 Now slaves are in the power of masters, a power recognised by the law of + all nations, for all nations present the spectacle of masters invested + with power of life and death over slaves; and to whatever is acquired + through a slave his owner is entitled. + </p> + <p> + 2 But in the present day no one under our sway is permitted to indulge in + excessive harshness towards his slaves, without some reason recognised by + law; for, by a constitution of the Emperor Antoninus Pius, a man is made + as liable to punishment for killing his own slave as for killing the slave + of another person; and extreme severity on the part of masters is checked + by another constitution whereby the same Emperor, in answer to inquiries + from presidents of provinces concerning slaves who take refuge at churches + or statues of the Emperor, commanded that on proof of intolerable cruelty + a master should be compelled to sell his slaves on fair terms, so as to + receive their value. And both of these are reasonable enactments, for the + public interest requires that no one should make an evil use of his own + property. The terms of the rescript of Antoninus to Aelius Marcianus are + as follow:—'The powers of masters over their slaves ought to + continue undiminished, nor ought any man to be deprived of his lawful + rights; but it is the master's own interest that relief justly sought + against cruelty, insufficient sustenance, or intolerable wrong, should not + be denied. I enjoin you then to look into the complaints of the slaves of + Iulius Sabinus, who have fled for protection to the statue of the Emperor, + and if you find them treated with undue harshness or other ignominious + wrong, order them to be sold, so that they may not again fall under the + power of their master; and the latter will find that if he attempts to + evade this my enactment, I shall visit his offence with severe + punishment.' + </p> + <p> + <a name="link2H_4_0010" id="link2H_4_0010"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IX. OF PATERNAL POWER + </h2> + <h3> + Our children whom we have begotten in lawful wedlock are in our power. + </h3> + <p> + 1 Wedlock or matrimony is the union of male and female, involving the + habitual intercourse of daily life. + </p> + <p> + 2 The power which we have over our children is peculiar to Roman citizens, + and is found in no other nation. + </p> + <p> + 3 The offspring then of you and your wife is in your power, and so too is + that of your son and his wife, that is to say, your grandson and + granddaughter, and so on. But the offspring of your daughter is not in + your power, but in that of its own father. + </p> + <p> + <a name="link2H_4_0011" id="link2H_4_0011"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE X. OF MARRIAGE + </h2> + <p> + Roman citizens are joined together in lawful wedlock when they are united + according to law, the man having reached years of puberty, and the woman + being of a marriageable age, whether they be independent or dependent: + provided that, in the latter case, they must have the consent of the + parents in whose power they respectively are, the necessity of which, and + even of its being given before the marriage takes place, is recognised no + less by natural reason than by law. Hence the question has arisen, can the + daughter or son of a lunatic lawfully contract marriage? and as the doubt + still remained with regard to the son, we decided that, like the daughter, + the son of a lunatic might marry even without the intervention of his + father, according to the mode prescribed by our constitution. + </p> + <p> + 1 It is not every woman that can be taken to wife: for marriage with + certain classes of persons is forbidden. Thus, persons related as + ascendant and descendant are incapable of lawfully intermarrying; for + instance, father and daughter, grandfather and granddaughter, mother and + son, grandmother and grandson, and so on ad infinitum; and the union of + such persons is called criminal and incestuous. And so absolute is the + rule, that persons related as ascendant and descendant merely by adoption + are so utterly prohibited from intermarriage that dissolution of the + adoption does not dissolve the prohibition: so that an adoptive daughter + or granddaughter cannot be taken to wife even after emancipation. + </p> + <p> + 2 Collateral relations also are subject to similar prohibitions, but not + so stringent. Brother and sister indeed are prohibited from intermarriage, + whether they are both of the same father and mother, or have only one + parent in common: but though an adoptive sister cannot, during the + subsistence of the adoption, become a man's wife, yet if the adoption is + dissolved by her emancipation, or if the man is emancipated, there is no + impediment to their intermarriage. Consequently, if a man wished to adopt + his son-in-law, he ought first to emancipate his daughter: and if he + wished to adopt his daughter-in-law, he ought first to emancipate his son. + </p> + <p> + 3 A man may not marry his brother's or his sister's daughter, or even his + or her granddaughter, though she is in the fourth degree; for when we may + not marry a person's daughter, we may not marry the granddaughter either. + But there seems to be no obstacle to a man's marrying the daughter of a + woman whom his father has adopted, for she is no relation of his by either + natural or civil law. + </p> + <p> + 4 The children of two brothers or sisters, or of a brother and sister, may + lawfully intermarry. + </p> + <p> + 5 Again, a man may not marry his father's sister, even though the tie be + merely adoptive, or his mother's sister: for they are considered to stand + in the relation of ascendants. For the same reason too a man may not marry + his great-aunt either paternal or maternal. + </p> + <p> + 6 Certain marriages again are prohibited on the ground of affinity, or the + tie between a man or his wife and the kin of the other respectively. For + instance, a man may not marry his wife's daughter or his son's wife, for + both are to him in the position of daughters. By wife's daughter or son's + wife we must be understood to mean persons who have been thus related to + us; for if a woman is still your daughterinlaw, that is, still married to + your son, you cannot marry her for another reason, namely, because she + cannot be the wife of two persons at once. So too if a woman is still your + stepdaughter, that is, if her mother is still married to you, you cannot + marry her for the same reason, namely, because a man cannot have two wives + at the same time. + </p> + <p> + 7 Again, it is forbidden for a man to marry his wife's mother or his + father's wife, because to him they are in the position of a mother, though + in this case too our statement applies only after the relationship has + finally terminated; otherwise, if a woman is still your stepmother, that + is, is married to your father, the common rule of law prevents her from + marrying you, because a woman cannot have two husbands at the same time: + and if she is still your wife's mother, that is, if her daughter is still + married to you, you cannot marry her because you cannot have two wives at + the same time. + </p> + <p> + 8 But a son of the husband by another wife, and a daughter of the wife by + another husband, and vice versa, can lawfully intermarry, even though they + have a brother or sister born of the second marriage. + </p> + <p> + 9 If a woman who has been divorced from you has a daughter by a second + husband, she is not your stepdaughter, but Iulian is of opinion that you + ought not to marry her, on the ground that though your son's betrothed is + not your daughterinlaw, nor your father's betrothed you stepmother, yet it + is more decent and more in accordance with what is right to abstain from + intermarrying with them. + </p> + <p> + 10 It is certain that the rules relating to the prohibited degrees of + marriage apply to slaves: supposing, for instance, that a father and + daughter, or a brother and sister, acquired freedom by manumission. + </p> + <p> + 11 There are also other persons who for various reasons are forbidden to + intermarry, a list of whom we have permitted to be inserted in the books + of the Digest or Pandects collected from the older law. + </p> + <p> + 12 Alliances which infringe the rules here stated do not confer the status + of husband and wife, nor is there in such case either wedlock or marriage + or dowry. Consequently children born of such a connexion are not in their + father's power, but as regards the latter are in the position of children + born of promiscuous intercourse, who, their paternity being uncertain, are + deemed to have no father at all, and who are called bastards, either from + the Greek word denoting illicit intercourse, or because they are + fatherless. Consequently, on the dissolution of such a connexion there can + be no claim for return of dowry. Persons who contract prohibited marriages + are subjected to penalties set forth in our sacred constitutions. + </p> + <p> + 13 Sometimes it happens that children who are not born in their father's + power are subsequently brought under it. Such for instance is the case of + a natural son made subject to his father's power by being inscribed a + member of the curia; and so too is that of a child of a free woman with + whom his father cohabited, though he could have lawfully married her, who + is subjected to the power of his father by the subsequent execution of a + dowry deed according to the terms of our constitution: and the same boon + is in effect bestowed by that enactment on children subsequently born of + the same marriage. + </p> + <p> + <a name="link2H_4_0012" id="link2H_4_0012"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XI. OF ADOPTIONS + </h2> + <p> + Not only natural children are subject, as we said, to paternal power, but + also adoptive children. + </p> + <p> + 1 Adoption is of two forms, being effected either by rescript of the + Emperor, or by the judicial authority of a magistrate. The first is the + mode in which we adopt independent persons, and this form of adoption is + called adrogation: the second is the mode in which we adopt a person + subject to the power of an ascendant, whether a descendant in the first + degree, as a son or daughter, or in a remoter degree, as a grandson, + granddaughter, great-grandson, or great-granddaughter. + </p> + <p> + 2 But by the law, as now settled by our constitution, when a child in + power is given in adoption to a stranger by his natural father, the power + of the latter is not extinguished; no right passes to the adoptive father, + nor is the person adopted in his power, though we have given a right of + succession in case of the adoptive father dying intestate. But if the + person to whom the child is given in adoption by its natural father is not + a stranger, but the child's own maternal grandfather, or, supposing the + father to have been emancipated, its paternal grandfather, or its + great-grandfather paternal or maternal, in this case, because the rights + given by nature and those given by adoption are vested in one and the same + person, the old power of the adoptive father is left unimpaired, the + strength of the natural bond of blood being augmented by the civil one of + adoption, so that the child is in the family and power of an adoptive + father, between whom and himself there existed antecedently the + relationship described. + </p> + <p> + 3 When a child under the age of puberty is adopted by rescript of the + Emperor, the adrogation is only permitted after cause shown, the goodness + of the motive and the expediency of the step for the pupil being inquired + into. The adrogation is also made under certain conditions; that is to + say, the adrogator has to give security to a public agent or attorney of + the people, that if the pupil should die within the age of puberty, he + will return his property to the persons who would have succeeded him had + no adoption taken place. The adoptive father again may not emancipate them + unless upon inquiry they are found deserving of emancipation, or without + restoring them their property. Finally, if he disinherits him at death, or + emancipates him in his lifetime without just cause, he is obliged to leave + him a fourth of his own property, besides that which he brought him when + adopted, or by subsequent acquisition. + </p> + <p> + 4 It is settled that a man cannot adopt another person older than himself, + for adoption imitates nature, and it would be unnatural for a son to be + older than his father. Consequently a man who desires either to adopt or + to adrogate a son ought to be older than the latter by the full term of + puberty, or eighteen years. + </p> + <p> + 5 A man may adopt a person as grandson or granddaughter, or as + great-grandson or great-granddaughter, and so on, without having a son at + all himself; 6 and similarly he may adopt another man's son as grandson, + or another man's grandson as son. + </p> + <p> + 7 If he wishes to adopt some one as grandson, whether as the son of an + adoptive son of his own, or of a natural son who is in his power, the + consent of this son ought to be obtained, lest a family heir be thrust + upon him against his will: but on the other hand, if a grandfather wishes + to give a grandson by a son in adoption to some one else, the son's + consent is not requisite. + </p> + <p> + 8 An adoptive child is in most respects in the same position, as regards + the father, as a natural child born in lawful wedlock. Consequently a man + can give in adoption to another a person whom he has adopted by imperial + rescript, or before the praetor or governor of a province, provided that + in this latter case he was not a stranger (i.e. was a natural descendant) + before he adopted him himself. + </p> + <p> + 9 Both forms of adoption agree in this point, that persons incapable of + procreation by natural impotence are permitted to adopt, whereas castrated + persons are not allowed to do so. + </p> + <p> + 10 Again, women cannot adopt, for even their natural children are not + subject to their power; but by the imperial clemency they are enabled to + adopt, to comfort them for the loss of children who have been taken from + them. + </p> + <p> + 11 It is peculiar to adoption by imperial rescript, that children in the + power of the person adrogated, as well as their father, fall under the + power of the adrogator, assuming the position of grandchildren. Thus + Augustus did not adopt Tiberius until Tiberius had adopted Germanicus, in + order that the latter might become his own grandson directly the second + adoption was made. + </p> + <p> + 12 The old writers record a judicious opinion contained in the writings of + Cato, that the adoption of a slave by his master is equivalent to + manumission. In accordance with this we have in our wisdom ruled by a + constitution that a slave to whom his master gives the title of son by the + solemn form of a record is thereby made free, although this is not + sufficient to confer on him the rights of a son. + </p> + <p> + <a name="link2H_4_0013" id="link2H_4_0013"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED + </h2> + <p> + Let us now examine the modes in which persons dependent on a superior + become independent. How slaves are freed from the power of their masters + can be gathered from what has already been said respecting their + manumission. Children under paternal power become independent at the + parent's death, subject, however, to the following distinction. The death + of a father always releases his sons and daughters from dependence; the + death of a grandfather releases his grandchildren from dependence only + provided that it does not subject them to the power of their father. Thus, + if at the death of the grandfather the father is alive and in his power, + the grandchildren, after the grandfather's death, are in the power of the + father; but if at the time of the grandfather's death the father is dead, + or not subject to the grandfather, the grandchildren will not fall under + his power, but become independent. + </p> + <p> + 1 As deportation to an island for some penal offence entails loss of + citizenship, such removal of a man from the list of Roman citizens has, + like his death, the effect of liberating his children from his power; and + conversely, the deportation of a person subject to paternal power + terminates the power of the parent. In either case, however, if the + condemned person is pardoned by the grace of the Emperor, he recovers all + his former rights. + </p> + <p> + 2 Relegation to an island does not extinguish paternal power, whether it + is the parent or the child who is relegated. + </p> + <p> + 3 Again, a father's power is extinguished by his becoming a 'slave of + punishment,' for instance, by being condemned to the mines or exposed to + wild beasts. + </p> + <p> + 4 A person in paternal power does not become independent by entering the + army or becoming a senator, for military service or consular dignity does + not set a son free from the power of his father. But by our constitution + the supreme dignity of the patriciate frees a son from power immediately + on the receipt of the imperial patent; for who would allow anything so + unreasonable as that, while a father is able by emancipation to release + his son from the tie of his power, the imperial majesty should be unable + to release from dependence on another the man whom it has selected as a + father of the State? 5 Again, capture of the father by the enemy makes him + a slave of the latter; but the status of his children is suspended by his + right of subsequent restoration by postliminium; for on escape from + captivity a man recovers all his former rights, and among them the right + of paternal power over his children, the law of postliminium resting on a + fiction that the captive has never been absent from the state. But if he + dies in captivity the son is reckoned to have been independent from the + moment of his father's capture. So too, if a son or a grandson is captured + by the enemy, the power of his ascendant is provisionally suspended, + though he may again be subjected to it by postliminium. This term is + derived from 'limen' and 'post,' which explains why we say that the person + who has been captured by the enemy and has come back into our territories + has returned by postliminium: for just as the threshold forms the boundary + of a house, so the ancients represented the boundaries of the empire as a + threshold; and this is also the origin of the term 'limes, signifying a + kind of end and limit. Thus postliminium means that the captive returns by + the same threshold at which he was lost. A captive who is recovered after + a victory over the enemy is deemed to have returned by postliminium. + </p> + <p> + 6 Emancipation also liberates children from the power of the parent. + Formerly it was effected either by the observance of an old form + prescribed by statute by which the son was fictitiously sold and then + manumitted, or by imperial rescript. Our forethought, however, has amended + this by a constitution, which has abolished the old fictitious form, and + enabled parents to go directly to a competent judge or magistrate, and in + his presence release their sons or daughters, grandsons or granddaughters, + and so on, from their power. After this, the father has by the praetor's + edict the same rights over the property of the emancipated child as a + patron has over the property of his freedman: and if at the time of + emancipation the child, whether son or daughter, or in some remoter degree + of relationship, is beneath the age of puberty, the father becomes by the + emancipation his or her guardian. + </p> + <p> + 7 It is to be noted, however, that a grandfather who has both a son, and + by that son a grandson or granddaughter, in his power, may either release + the son from his power and retain the grandson or granddaughter, or + emancipate both together; and a great-grandfather has the same latitude of + choice. + </p> + <p> + 8 Again, if a father gives a son whom he has in his power in adoption to + the son's natural grandfather or great-grandfather, in accordance with our + constitution on this subject, that is to say, by declaring his intention, + before a judge with jurisdiction in the matter, in the official records, + and in the presence and with the consent of the person adopted, the + natural father's power is thereby extinguished, and passes to the adoptive + father, adoption by whom under these circumstances retains, as we said, + all its old legal consequences. + </p> + <p> + 9 It is to be noted, that if your daughterinlaw conceives by your son, and + you emancipate or give the latter in adoption during her pregnancy, the + child when born will be in your power; but if the child is conceived after + its father's emancipation or adoption, it is in the power of its natural + father or its adoptive grandfather, as the case may be. + </p> + <p> + 10 Children, whether natural or adoptive, are only very rarely able to + compel their parent to release them from his power. + </p> + <p> + <a name="link2H_4_0014" id="link2H_4_0014"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIII. OF GUARDIANSHIPS + </h2> + <p> + Let us now pass on to another classification of persons. Persons not + subject to power may still be subject either to guardians or to curators, + or may be exempt from both forms of control. We will first examine what + persons are subject to guardians and curators, and thus we shall know who + are exempt from both kinds of control. And first of persons subject to + guardianship or tutelage. + </p> + <p> + 1 Guardianship, as defined by Servius, is authority and control over a + free person, given and allowed by the civil law, in order to protect one + too young to defend himself: + </p> + <p> + 2 and guardians are those persons who possess this authority and control, + their name being derived from their very functions; for they are called + guardians as being protectors and defenders, just as those entrusted with + the care of sacred buildings are called 'aeditui.' + </p> + <p> + 3 The law allows a parent to appoint guardians in his will for those + children in his power who have not attained the age of puberty, without + distinction between sons and daughters; but a grandson or granddaughter + can receive a testamentary guardian only provided that the death of the + testator does not bring them under the power of their own father. Thus, if + your son is in your power at the time of your death, your grandchildren by + him cannot have a guardian given them by your will, although they are in + your power, because your death leaves them in the power of their father. + </p> + <p> + 4 And as in many other matters afterborn children are treated on the + footing of children born before the execution of the will, so it is ruled + that afterborn children, as well as children born before the will was + made, may have guardians therein appointed to them, provided that if born + in the testator's lifetime they would be family heirs and in his power. + </p> + <p> + 5 If a testamentary guardian be given by a father to his emancipated son, + he must be approved by the governor in all cases, though inquiry into the + case is unnecessary. + </p> + <p> + <a name="link2H_4_0015" id="link2H_4_0015"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL + </h2> + <p> + 1 Persons who are in the power of others may be appointed testamentary + guardians no less than those who are independent; and a man can also + validly appoint one of his own slaves as testamentary guardian, giving him + at the same time his liberty; and even in the absence of express + manumission his freedom is to be presumed to have been tacitly conferred + on him, whereby his appointment becomes a valid act, although of course it + is otherwise if the testator appointed him guardian in the erroneous + belief that he was free. The appointment of another man's slave as + guardian, without any addition or qualification, is void, though valid if + the words 'when he shall be free' are added: but this latter form is + ineffectual if the slave is the testator's own, the appointment being void + from the beginning. + </p> + <p> + 2 If a lunatic or minor is appointed testamentary guardian, he cannot act + until, if a lunatic, he recovers his faculties, and, if a minor, he + attains the age of twentyfive years. + </p> + <p> + 3 There is no doubt that a guardian may be appointed for and from a + certain time, or conditionally, or before the institution of the heir. + </p> + <p> + 4 A guardian cannot, however, be appointed for a particular matter or + business, because his duties relate to the person, and not merely to a + particular business or matter. + </p> + <p> + 5 If a man appoints a guardian to his sons or daughters, he is held to + have intended them also for such as may be afterborn, for the latter are + included in the terms son and daughter. In the case of grandsons, a + question may arise whether they are implicitly included in an appointment + of guardians to sons; to which we reply, that they are included in an + appointment of guardians if the term used is 'children,' but not if it is + 'sons': for the words son and grandson have quite different meanings. Of + course an appointment to afterborn children includes all children, and not + sons only. + </p> + <p> + <a name="link2H_4_0016" id="link2H_4_0016"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES + </h2> + <p> + In default of a testamentary guardian, the statute of the Twelve Tables + assigns the guardianship to the nearest agnates, who are hence called + statutory guardians. + </p> + <p> + 1 Agnates are persons related to one another by males, that is, through + their male ascendants; for instance, a brother by the same father, a + brother's son, or such son's son, a father's brother, his son or son's + son. But persons related only by blood through females are not agnates, + but merely cognates. Thus the son of your father's sister is no agnate of + yours, but merely your cognate, and vice versa; for children are member's + of their father's family, and not of your mother's. + </p> + <p> + 2 It was said that the statute confers the guardianship, in case of + intestacy, on the nearest agnates; but by intestacy here must be + understood not only complete intestacy of a person having power to appoint + a testamentary guardian, but also the mere omission to make such + appointment, and also the case of a person appointed testamentary guardian + dying in the testator's lifetime. + </p> + <p> + 3 Loss of status of any kind ordinarily extinguishes rights by agnation, + for agnation is a title of civil law. Not every kind of loss of status, + however, affects rights by cognation; because civil changes cannot affect + rights annexed to a natural title to the same extent that they can affect + those annexed to a civil one. + </p> + <p> + <a name="link2H_4_0017" id="link2H_4_0017"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVI. OF LOSS OF STATUS + </h2> + <p> + Loss of status, or change in one's previous civil rights, is of three + orders, greatest, minor or intermediate, and least. + </p> + <p> + 1 The greatest loss of status is the simultaneous loss of citizenship and + freedom, exemplified in those persons who by a terrible sentence are made + 'slaves of punishment,' in freedmen condemned for ingratitude to their + patrons, and in those who allow themselves to be sold in order to share + the purchase money when paid. + </p> + <p> + 2 Minor or intermediate loss of status is loss of citizenship + unaccompanied by loss of liberty, and is incident to interdiction of fire + and water and to deportation to an island. + </p> + <p> + 3 The least loss of status occurs when citizenship and freedom are + retained, but a man's domestic position is altered, and is exemplified by + adrogation and emancipation. + </p> + <p> + 4 A slave does not suffer loss of status by being manumitted, for while a + slave he had no civil rights: + </p> + <p> + 5 and where the change is one of dignity, rather than of civil rights, + there is no loss of status; thus it is no loss of status to be removed + from the senate. + </p> + <p> + 6 When it was said that rights by cognation are not affected by loss of + status, only the least loss of status was meant; by the greatest loss of + status they are destroyed—for instance, by a cognate's becoming a + slave—and are not recovered even by subsequent manumission. Again, + deportation to an island, which entails minor or intermediate loss of + status, destroys rights by cognation. + </p> + <p> + 7 When agnates are entitled to be guardians, it is not all who are so + entitled, but only those of the nearest degree, though if all are in the + same degree, all are entitled. + </p> + <p> + <a name="link2H_4_0018" id="link2H_4_0018"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS + </h2> + <p> + The same statute of the Twelve Tables assigns the guardianship of freedmen + and freedwomen to the patron and his children, and this guardianship, like + that of agnates, is called statutory guardianship; not that it is anywhere + expressly enacted in that statute, but because its interpretation by the + jurists has procured for it as much reception as it could have obtained + from express enactment: the fact that the inheritance of a freedman or + freedwoman, when they die intestate, was given by the statute to the + patron and his children, being deemed a proof that they were intended to + have the guardianship also, partly because in dealing with agnates the + statute coupled guardianship with succession, and partly on the principle + that where the advantage of the succession is, there, as a rule, ought too + to be the burden of the guardianship. We say 'as a rule,' because if a + slave below the age of puberty is manumitted by a woman, though she is + entitled, as patroness, to the succession, another person is guardian. + </p> + <p> + <a name="link2H_4_0019" id="link2H_4_0019"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS + </h2> + <p> + The analogy of the patron guardian led to another kind of socalled + statutory guardianship, namely that of a parent over a son or daughter, or + a grandson or granddaughter by a son, or any other descendant through + males, whom he emancipates below the age of puberty: in which case he will + be statutory guardian. + </p> + <p> + <a name="link2H_4_0020" id="link2H_4_0020"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIX. OF FIDUCIARY GUARDIANSHIP + </h2> + <p> + There is another kind of guardianship known as fiduciary guardianship, + which arises in the following manner. If a parent emancipates a son or + daughter, a grandson or granddaughter, or other descendant while under the + age of puberty, he becomes their statutory guardian: but if at his death + he leaves male children, they become fiduciary guardians of their own + sons, or brothers and sisters, or other relatives who had been thus + emancipated. But on the decease of a patron who is statutory guardian his + children become statutory guardians also; for a son of a deceased person, + supposing him not to have been emancipated during his father's lifetime, + becomes independent at the latter's death, and does not fall under the + power of his brothers, nor, consequently, under their guardianship; + whereas a freedman, had he remained a slave, would at his master's death + have become the slave of the latter's children. The guardianship, however, + is not cast on these persons unless they are of full age, which indeed has + been made a general rule in guardianship and curatorship of every kind by + our constitution. + </p> + <p> + <a name="link2H_4_0021" id="link2H_4_0021"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA + </h2> + <p> + ET TITIA + </p> + <p> + Failing every other kind of guardian, at Rome one used to be appointed + under the lex Atilia by the praetor of the city and the majority of the + tribunes of the people; in the provinces one was appointed under the lex + Iulia et Titia by the president of the province. + </p> + <p> + 1 Again, on the appointment of a testamentary guardian subject to a + condition, or on an appointment limited to take effect after a certain + time, a substitute could be appointed under these statutes during the + pendency of the condition, or until the expiration of the term: and even + if no condition was attached to the appointment of a testamentary + guardian, a temporary guardian could be obtained under these statutes + until the succession had vested. In all these cases the office of the + guardian so appointed determined as soon as the condition was fulfilled, + or the term expired, or the succession vested in the heir. + </p> + <p> + 2 On the capture of a guardian by the enemy, the same statutes regulated + the appointment of a substitute, who continued in office until the return + of the captive; for if he returned, he recovered the guardianship by the + law of postliminium. + </p> + <p> + 3 But guardians have now ceased to be appointed under these statutes, the + place of the magistrates directed by them to appoint being taken, first, + by the consuls, who began to appoint guardians to pupils of either sex + after inquiry into the case, and then by the praetors, who were + substituted for the consuls by the imperial constitutions; for these + statutes contained no provisions as to security to be taken from guardians + for the safety of their pupils' property, or compelling them to accept the + office in case of disinclination. + </p> + <p> + 4 Under the present law, guardians are appointed at Rome by the prefect of + the city, and by the praetor when the case falls within his jurisdiction; + in the provinces they are appointed, after inquiry, by the governor, or by + inferior magistrates at the latter's behest if the pupil's property is of + no great value. + </p> + <p> + 5 By our constitution, however, we have done away with all difficulties of + this kind relating to the appointing person, and dispensed with the + necessity of waiting for an order from the governor, by enacting that if + the property of the pupil or adult does not exceed five hundred solidi, + guardians or curators shall be appointed by the officers known as + defenders of the city, along with the holy bishop of the place, or in the + presence of other public persons, or by the magistrates, or by the judge + of the city of Alexandria; security being given in the amounts required by + the constitution, and those who take it being responsible if it be + insufficient. + </p> + <p> + 6 The wardship of children below the age of puberty is in accordance with + the law of nature, which prescribes that persons of immature years shall + be under another's guidance and control. + </p> + <p> + 7 As guardians have the management of their pupils' business, they are + liable to be sued on account of their administration as soon as the pupil + attains the age of puberty. + </p> + <p> + <a name="link2H_4_0022" id="link2H_4_0022"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXI. OF THE AUTHORITY OF GUARDIANS + </h2> + <p> + In some cases a pupil cannot lawfully act without the authority of his + guardian, in others he can. Such authority, for instance, is not necessary + when a pupil stipulates for the delivery of property, though it is + otherwise where he is the promisor; for it is an established rule that the + guardian's authority is not necessary for any act by which the pupil + simply improves his own position, though it cannot be dispensed with where + he proposes to make it worse. Consequently, unless the guardian authorizes + all transactions generating bilateral obligations, such as sale, hire, + agency, and deposit, the pupil is not bound, though he can compel the + other contracting party to discharge his own obligation. + </p> + <p> + 1 Pupils, however, require their guardian's authority before they can + enter on an inheritance, demand the possession of goods, or accept an + inheritance by way of trust, even though such act be advantageous to them, + and involves no chance of loss. + </p> + <p> + 2 If the guardian thinks the transaction will be beneficial to his pupil, + his authority should be given presently and on the spot. Subsequent + ratification, or authority given by letter, has no effect. + </p> + <p> + 3 In case of a suit between guardian and pupil, as the former cannot + lawfully authorize an act in which he is personally concerned or + interested, a curator is now appointed, in lieu of the old praetorian + guardian, with whose cooperation the suit is carried on, his office + determining as soon as it is decided. + </p> + <p> + <a name="link2H_4_0023" id="link2H_4_0023"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED + </h2> + <p> + Pupils of either sex are freed from guardianship when they reach the age + of puberty, which the ancients were inclined to determine, in the case of + males, not only by age, but also by reference to the physical development + of individuals. Our majesty, however, has deemed it not unworthy of the + purity of our times to apply in the case of males also the moral + considerations which, even among the ancients, forbade in the case of + females as indecent the inspection of the person. Consequently by the + promulgation of our sacred constitution we have enacted that puberty in + males shall be considered to commence immediately on the completion of the + fourteenth year, leaving unaltered the rule judiciously laid down by the + ancients as to females, according to which they are held fit for marriage + after completing their twelfth year. + </p> + <p> + 1 Again, tutelage is terminated by adrogation or deportation of the pupil + before he attains the age of puberty, or by his being reduced to slavery + or taken captive by the enemy. + </p> + <p> + 2 So too if a testamentary guardian be appointed to hold office until the + occurrence of a condition, on this occurrence his office determines. + </p> + <p> + 3 Similarly tutelage is terminated by the death either of pupil or of + guardian. + </p> + <p> + 4 If a guardian suffers such a loss of status as entails loss of either + liberty or citizenship, his office thereby completely determines. It is, + however, only the statutory kind of guardianship which is destroyed by a + guardian's undergoing the least loss of status, for instance, by his + giving himself in adoption. Tutelage is in every case put an end to by the + pupil's suffering loss of status, even of the lowest order. + </p> + <p> + 5 Testamentary guardians appointed to serve until a certain time lay down + their office when that time arrives. + </p> + <p> + 6 Finally, persons cease to be guardians who are removed from their office + on suspicion, or who are enabled to lay down the burden of the tutelage by + a reasonable ground of excuse, according to the rules presently stated. + </p> + <p> + <a name="link2H_4_0024" id="link2H_4_0024"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIII. OF CURATORS + </h2> + <p> + Males, even after puberty, and females after reaching marriageable years, + receive curators until completing their twenty-fifth year, because, though + past the age fixed by law as the time of puberty, they are not yet old + enough to administer their own affairs. + </p> + <p> + 1 Curators are appointed by the same magistrates who appoint guardians. + They cannot legally be appointed by will, though such appointment, if + made, is usually confirmed by an order of the praetor or governor of the + province. + </p> + <p> + 2 A person who has reached the age of puberty cannot be compelled to have + a curator, except for the purpose of conducting a suit: for curators, + unlike guardians, can be appointed for a particular matter. + </p> + <p> + 3 Lunatics and prodigals, even though more than twentyfive years of age, + are by the statute of the Twelve Tables placed under their agnates as + curators; but now, as a rule, curators are appointed for them at Rome by + the prefect of the city or praetor, and in the provinces by the governor, + after inquiry into the case. + </p> + <p> + 4 Curators should also be given to persons of weak mind, to the deaf, the + dumb, and those suffering from chronic disease, because they are not + competent to manage their own affairs. + </p> + <p> + 5 Sometimes even pupils have curators, as, for instance, when a statutory + guardian is unfit for his office: for if a pupil already has one guardian, + he cannot have another given him. Again, if a testamentary guardian, or + one appointed by the praetor or governor, is not a good man of business, + though perfectly honest in his management of the pupil's affairs, it is + usual for a curator to be appointed to act with him. Again, curators are + usually appointed in the room of guardians temporarily excused from the + duties of their office. + </p> + <p> + 6 If a guardian is prevented from managing his pupil's affairs by + illhealth or other unavoidable cause, and the pupil is absent or an + infant, the praetor or governor of the province will, at the guardian's + risk, appoint by decree a person selected by the latter to act as agent of + the pupil. + </p> + <p> + <a name="link2H_4_0025" id="link2H_4_0025"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS + </h2> + <p> + To prevent the property of pupils and of persons under curators from being + wasted or diminished by their curators or guardians the praetor provides + for security being given by the latter against maladministration. This + rule, however, is not without exceptions, for testamentary guardians are + not obliged to give security, the testator having had full opportunities + of personally testing their fidelity and carefulness, and guardians and + curators appointed upon inquiry are similarly exempted, because they have + been expressly chosen as the best men for the place. + </p> + <p> + 1 If two or more are appointed by testament, or by a magistrate upon + inquiry, any one of them may offer security for indemnifying the pupil or + person to whom he is curator against loss, and be preferred to his + colleague, in order that he may either obtain the sole administration, or + else induce his colleague to offer larger security than himself, and so + become sole administrator by preference. Thus he cannot directly call upon + his colleague to give security; he ought to offer it himself, and so give + his colleague the option of receiving security on the one hand, or of + giving it on the other. If none of them offer security, and the testator + left directions as to which was to administer the property, this person + must undertake it: in default of this, the office is cast by the praetor's + edict on the person whom the majority of guardians or curators shall + choose. If they cannot agree, the praetor must interpose. The same rule, + authorizing a majority to elect one to administer the property, is to be + applied where several are appointed after inquiry by a magistrate. + </p> + <p> + 2 It is to be noted that, besides the liability of guardians and curators + to their pupils, or the persons for whom they act, for the management of + their property, there is a subsidiary action against the magistrate + accepting the security, which may be resorted to where all other remedies + prove inadequate, and which lies against those magistrates who have either + altogether omitted to take security from guardians or curators, or taken + it to an insufficient amount. According to the doctrines stated by the + jurists, as well as by imperial constitutions, this action may be brought + against the magistrate's heirs as well as against him personally; + </p> + <p> + 3 and these same constitutions ordain that guardians or curators who make + default in giving security may be compelled to do so by legal distraint of + their goods. + </p> + <p> + 4 This action, however, will not lie against the prefect of the city, the + praetor, or the governor of a province, or any other magistrate authorized + to appoint guardians, but only against those to whose usual duties the + taking of security belongs. + </p> + <p> + <a name="link2H_4_0026" id="link2H_4_0026"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION + </h2> + <p> + There are various grounds on which persons are exempted from serving the + office of guardian or curator, of which the most common is their having a + certain number of children, whether in power or emancipated. If, that is + to say, a man has, in Rome, three children living, in Italy four, or in + the provinces five, he may claim exemption from these, as from other + public offices; for it is settled that the office of a guardian or curator + is a public one. Adopted children cannot be reckoned for this purpose, + though natural children given in adoption to others may: similarly + grandchildren by a son may be reckoned, so as to represent their father, + while those by a daughter may not. It is, however, only living children + who avail to excuse their fathers from serving as guardian or curator; + such as have died are of no account, though the question has arisen + whether this rule does not admit of an exception where they have died in + war; and it is agreed that this is so, but only where they have fallen on + the field of battle: for these, because they have died for their country, + are deemed to live eternally in fame. + </p> + <p> + 1 The Emperor Marcus, too, replied by rescript, as is recorded in his + Semestria, that employment in the service of the Treasury is a valid + excuse from serving as guardian or curator so long as that employment + lasts. + </p> + <p> + 2 Again, those are excused from these offices who are absent in the + service of the state; and a person already guardian or curator who has to + absent himself on public business is excused from acting in either of + these capacities during such absence, a curator being appointed to act + temporarily in his stead. On his return, he has to resume the burden of + tutelage, without being entitled to claim a year's exemption, as has been + settled since the opinion of Papinian was delivered in the fifth book of + his replies; for the year's exemption or vacation belongs only to such as + are called to a new tutelage. + </p> + <p> + 3 By a rescript of the Emperor Marcus persons holding any magistracy may + plead this as a ground of exemption, though it will not enable them to + resign an office of this kind already entered upon. + </p> + <p> + 4 No guardian or curator can excuse himself on the ground of an action + pending between himself and his ward, unless it relates to the latter's + whole estate or to an inheritance. + </p> + <p> + 5 Again, a man who is already guardian or curator to three persons without + having sought after the office is entitled to exemption from further + burdens of the kind so long as he is actually engaged with these, provided + that the joint guardianship of several pupils, or administration of an + undivided estate, as where the wards are brothers, is reckoned as one + only. + </p> + <p> + 6 If a man can prove that through poverty he is unequal to the burden of + the office, this, according to rescripts of the imperial brothers and of + the Emperor Marcus, is a valid ground of excuse. + </p> + <p> + 7 Illhealth again is a sufficient excuse if it be such as to prevent a man + from attending to even his own affairs: + </p> + <p> + 8 and the Emperor Pius decided by a rescript that persons unable to read + ought to be excused, though even these are not incapable of transacting + business. + </p> + <p> + 9 A man too is at once excused if he can show that a father has appointed + him testamentary guardian out of enmity, while conversely no one can in + any case claim exemption who promised the ward's father that he would act + as guardian to them: + </p> + <p> + 10 and it was settled by a rescript of M. Aurelius and L. Verus that the + allegation that one was unacquainted with the pupil's father cannot be + admitted as a ground of excuse. + </p> + <p> + 11 Enmity against the ward's father, if extremely bitter, and if there was + no reconciliation, is usually accepted as a reason for exemption from the + office of guardian; + </p> + <p> + 12 and similarly a person can claim to be excused whose status or civil + rights have been disputed by the father of the ward in an action. + </p> + <p> + 13 Again, a person over seventy years of age can claim to be excused from + acting as guardian or curator, and by the older law persons less than + twentyfive were similarly exempted. But our constitution, having forbidden + the latter to aspire to these functions, has made excuses unnecessary. The + effect of this enactment is that no pupil or person under twentyfive years + of age is to be called to a statutory guardianship; for it was most + incongruous to place persons under the guardianship or administration of + those who are known themselves to need assistance in the management of + their own affairs, and are themselves governed by others. + </p> + <p> + 14 The same rule is to be observed with soldiers, who, even though they + desire it, may not be admitted to the office of guardian: + </p> + <p> + 15 and finally grammarians, rhetoricians, and physicians at Rome, and + those who follow these callings in their own country and are within the + number fixed by law, are exempted from being guardians or curators. + </p> + <p> + 16 If a person who has several grounds of excuse wishes to obtain + exemption, and some of them are not allowed, he is not prohibited from + alleging others, provided he does this within the time prescribed. Those + desirous of excusing themselves do not appeal, but ought to allege their + grounds of excuse within fifty days next after they hear of their + appointment, whatever the form of the latter, and whatever kind of + guardians they may be, if they are within a hundred miles of the place + where they were appointed: if they live at a distance of more than a + hundred miles, they are allowed a day for every twenty miles, and thirty + days in addition, but this time, as Scaevola has said, must never be so + reckoned as to amount to less than fifty days. + </p> + <p> + 17 A person appointed guardian is deemed to be appointed to the whole + patrimony; + </p> + <p> + 18 and after he has once acted as guardian he cannot be compelled against + his will to become the same person's curator—not even if the father + who appointed him testamentary guardian added in the will that he made him + curator, too, as soon as the ward reached fourteen years of age—this + having been decided by a rescript of the Emperors Severus and Antoninus. + </p> + <p> + 19 Another rescript of the same emperors settled that a man is entitled to + be excused from becoming his own wife's curator, even after intermeddling + with her affairs. + </p> + <p> + 20 No man is discharged from the burden of guardianship who has procured + exemption by false allegations. + </p> + <p> + <a name="link2H_4_0027" id="link2H_4_0027"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED + </h2> + <p> + The accusation of guardians or curators on suspicion originated in the + statute of the Twelve Tables; + </p> + <p> + 1 the removal of those who are accused on suspicion is part of the + jurisdiction, at Rome, of the praetor, and in the provinces of their + governors and of the proconsul's legate. + </p> + <p> + 2 Having shown what magistrates can take cognizance of this subject, let + us see what persons are liable to be accused on suspicion. All guardians + are liable, whether appointed by testament or otherwise; consequently even + a statutory guardian may be made the object of such an accusation. But + what is to be said of a patron guardian? Even here we must reply that he + too is liable; though we must remember that his reputation must be spared + in the event of his removal on suspicion. + </p> + <p> + 3 The next point is to see what persons may bring this accusation; and it + is to be observed that the action partakes of a public character, that is + to say, is open to all. Indeed, by a rescript of Severus and Antoninus + even women are made competent to bring it, but only those who can allege a + close tie of affection as their motive; for instance, a mother, nurse, + grandmother, or sister. And the praetor will allow any woman to prefer the + accusation in whom he finds an affection real enough to induce her to save + a pupil from suffering harm, without seeming to be more forward than + becomes her sex. + </p> + <p> + 4 Persons below the age of puberty cannot accuse their guardians on + suspicion; but by a rescript of Severus and Antoninus it has been + permitted to those who have reached that age to deal thus with their + curators, after taking the advice of their nearest relations. + </p> + <p> + 5 A guardian is 'suspected' who does not faithfully discharge his tutorial + functions, though he may be perfectly solvent, as was the opinion also of + Julian. Indeed, Julian writes that a guardian may be removed on suspicion + before he commences his administration, and a constitution has been issued + in accordance with this view. + </p> + <p> + 6 A person removed from office on suspicion incurs infamy if his offence + was fraud, but not if it was merely negligence. + </p> + <p> + 7 As Papinian held, on a person being accused on suspicion he is suspended + from the administration until the action is decided. + </p> + <p> + 8 If a guardian or curator who is accused on suspicion dies after the + commencement of the action, but before it has been decided, the action is + thereby extinguished; + </p> + <p> + 9 and if a guardian fails to appear to a summons of which the object is to + fix by judicial order a certain rate of maintenance for the pupil, the + rescript of the Emperors Severus and Antoninus provides that the pupil may + be put in possession of the guardian's property, and orders the sale of + the perishable portions thereof after appointment of a curator. + Consequently, a guardian may be removed as suspected who does not provide + his pupil with sufficient maintenance. + </p> + <p> + 10 If, on the other hand, the guardian appears, and alleges that the + pupil's property is too inconsiderable to admit of maintenance being + decreed, and it is shown that the allegation is false, the proper course + is for him to be sent for punishment to the prefect of the city, like + those who purchase a guardianship with bribery. + </p> + <p> + 11 So too a freedman, convicted of having acted fraudulently as guardian + of the sons or grandsons of his patron, should be sent to the prefect of + the city for punishment. + </p> + <p> + 12 Finally, it is to be noted, that guardians or curators who are guilty + of fraud in their administration must be removed from their office even + though they offer to give security, for giving security does not change + the evil intent of the guardian, but only gives him a larger space of time + wherein he may injure the pupil's property: 13 for a man's mere character + or conduct may be such as to justify one's deeming him 'suspected.' No + guardian or curator, however, may be removed on suspicion merely because + he is poor, provided he is also faithful and diligent. + </p> + <p> + <a name="link2H_4_0028" id="link2H_4_0028"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + BOOK II. + </h2> +<pre xml:space="preserve"> + TITLES + I. Of the different kinds of Things + II. Of incorporeal Things + III. Of servitudes + IV. Of usufruct + V. Of use and habitation + VI. Of usucapion and long possession + VII. Of gifts + VIII. Of persons who may, and who may + not alienate + IX. Of persons through whom we acquire + X. Of the execution of wills + XI. Of soldiers' wills + XII. Of persons incapable of making wills + XIII. Of the disinherison of children + XIV. Of the institution of the heir + XV. Of ordinary substitution + XVI. Of pupillary substitution + XVII. Of the modes in which wills become + void + XVIII. Of an unduteous will + XIX. Of the kinds of and differences + between heirs + XX. Of legacies + XXI. Of the ademption and transference + of legacies + XXII. Of the lex Falcidia + XXIII. Of trust inheritances + XXIV. Of trust bequests of single things + XXV. Of codicils +</pre> + <p> + <a name="link2H_4_0029" id="link2H_4_0029"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE I. OF THE DIFFERENT KINDS OF THINGS + </h2> + <p> + In the preceding book we have expounded the law of Persons: now let us + proceed to the law of Things. Of these, some admit of private ownership, + while others, it is held, cannot belong to individuals: for some things + are by natural law common to all, some are public, some belong to a + society or corporation, and some belong to no one. But most things belong + to individuals, being acquired by various titles, as will appear from what + follows. + </p> + <p> + 1 Thus, the following things are by natural law common to all—the + air, running water, the sea, and consequently the seashore. No one + therefore is forbidden access to the seashore, provided he abstains from + injury to houses, monuments, and buildings generally; for these are not, + like the sea itself, subject to the law of nations. + </p> + <p> + 2 On the other hand, all rivers and harbours are public, so that all + persons have a right to fish therein. + </p> + <p> + 3 The seashore extends to the limit of the highest tide in time of storm + or winter. + </p> + <p> + 4 Again, the public use of the banks of a river, as of the river itself, + is part of the law of nations; consequently every one is entitled to bring + his vessel to the bank, and fasten cables to the trees growing there, and + use it as a resting-place for the cargo, as freely as he may navigate the + river itself. But the ownership of the bank is in the owner of the + adjoining land, and consequently so too is the ownership of the trees + which grow upon it. + </p> + <p> + 5 Again, the public use of the seashore, as of the sea itself, is part of + the law of nations; consequently every one is free to build a cottage upon + it for purposes of retreat, as well as to dry his nets and haul them up + from the sea. But they cannot be said to belong to any one as private + property, but rather are subject to the same law as the sea itself, with + the soil or sand which lies beneath it. + </p> + <p> + 6 As examples of things belonging to a society or corporation, and not to + individuals, may be cited buildings in cities—theatres, racecourses, + and such other similar things as belong to cities in their corporate + capacity. + </p> + <p> + 7 Things which are sacred, devoted to superstitious uses, or sanctioned, + belong to no one, for what is subject to divine law is no one's property. + </p> + <p> + 8 Those things are sacred which have been duly consecrated to God by His + ministers, such as churches and votive offerings which have been properly + dedicated to His service; and these we have by our constitution forbidden + to be alienated or pledged, except to redeem captives from bondage. If any + one attempts to consecrate a thing for himself and by his own authority, + its character is unaltered, and it does not become sacred. The ground on + which a sacred building is erected remains sacred even after the + destruction of the building, as was declared also by Papinian. + </p> + <p> + 9 Any one can devote a place to superstitious uses of his own free will, + that is to say, by burying a dead body in his own land. It is not lawful, + however, to bury in land which one owns jointly with some one else, and + which has not hitherto been used for this purpose, without the other's + consent, though one may lawfully bury in a common sepulchre even without + such consent. Again, the owner may not devote a place to superstitious + uses in which another has a usufruct, without the consent of the latter. + It is lawful to bury in another man's ground, if he gives permission, and + the ground thereby becomes religious even though he should not give his + consent to the interment till after it has taken place. + </p> + <p> + 10 Sanctioned things, too, such as city walls and gates, are, in a sense, + subject to divine law, and therefore are not owned by any individual. Such + walls are said to be 'sanctioned,' because any offence against them is + visited with capital punishment; for which reason those parts of the laws + in which we establish a penalty for their transgressors are called + sanctions. + </p> + <p> + 11 Things become the private property of individuals in many ways; for the + titles by which we acquire ownership in them are some of them titles of + natural law, which, as we said, is called the law of nations, while some + of them are titles of civil law. It will thus be most convenient to take + the older law first: and natural law is clearly the older, having been + instituted by nature at the first origin of mankind, whereas civil laws + first came into existence when states began to be founded, magistrates to + be created, and laws to be written. + </p> + <p> + 12 Wild animals, birds, and fish, that is to say all the creatures which + the land, the sea, and the sky produce, as soon as they are caught by any + one become at once the property of their captor by the law of nations; for + natural reason admits the title of the first occupant to that which + previously had no owner. So far as the occupant's title is concerned, it + is immaterial whether it is on his own land or on that of another that he + catches wild animals or birds, though it is clear that if he goes on + another man's land for the sake of hunting or fowling, the latter may + forbid him entry if aware of his purpose. An animal thus caught by you is + deemed your property so long as it is completely under your control; but + so soon as it has escaped from your control, and recovered its natural + liberty, it ceases to be yours, and belongs to the first person who + subsequently catches it. It is deemed to have recovered its natural + liberty when you have lost sight of it, or when, though it is still in + your sight, it would be difficult to pursue it. + </p> + <p> + 13 It has been doubted whether a wild animal becomes your property + immediately you have wounded it so severely as to be able to catch it. + Some have thought that it becomes yours at once, and remains so as long as + you pursue it, though it ceases to be yours when you cease the pursuit, + and becomes again the property of any one who catches it: others have been + of opinion that it does not belong to you till you have actually caught + it. And we confirm this latter view, for it may happen in many ways that + you will not capture it. + </p> + <p> + 14 Bees again are naturally wild; hence if a swarm settles on your tree, + it is no more considered yours, until you have hived it, than the birds + which build their nests there, and consequently if it is hived by some one + else, it becomes his property. So too any one may take the honeycombs + which bees may chance to have made, though, of course, if you see some one + coming on your land for this purpose, you have a right, to forbid him + entry before that purpose is effected. A swarm which has flown from your + hive is considered to remain yours so long as it is in your sight and easy + of pursuit: otherwise it belongs to the first person who catches it. + </p> + <p> + 15 Peafowl too and pigeons are naturally wild, and it is no valid + objection that they are used to return to the same spots from which they + fly away, for bees do this, and it is admitted that bees are wild by + nature; and some people have deer so tame that they will go into the woods + and yet habitually come back again, and still no one denies that they are + naturally wild. With regard, however, to animals which have this habit of + going away and coming back again, the rule has been established that they + are deemed yours so long as they have the intent to return: for if they + cease to have this intention they cease to be yours, and belong to the + first person who takes them; and when they lose the habit they seem also + to have lost the intention of returning. + </p> + <p> + 16 Fowls and geese are not naturally wild, as is shown by the fact that + there are some kinds of fowls and geese which we call wild kinds. Hence if + your geese or fowls are frightened and fly away, they are considered to + continue yours wherever they may be, even though you have lost sight of + them; and any one who keeps them intending thereby to make a profit is + held guilty of theft. + </p> + <p> + 17 Things again which we capture from the enemy at once become ours by the + law of nations, so that by this rule even free men become our slaves, + though, if they escape from our power and return to their own people, they + recover their previous condition. + </p> + <p> + 18 Precious stones too, and gems, and all other things found on the + seashore, become immediately by natural law the property of the finder: + </p> + <p> + 19 and by the same law the young of animals of which you are the owner + become your property also. + </p> + <p> + 20 Moreover, soil which a river has added to your land by alluvion becomes + yours by the law of nations. Alluvion is an imperceptible addition; and + that which is added so gradually that you cannot perceive the exact + increase from one moment of time to another is added by alluvion. + </p> + <p> + 21 If, however, the violence of the stream sweeps away a parcel of your + land and carries it down to the land of your neighbour it clearly remains + yours; though of course if in the process of time it becomes firmly + attached to your neighbour's land, they are deemed from that time to have + become part and parcel thereof. + </p> + <p> + 22 When an island rises in the sea, though this rarely happens, it belongs + to the first occupant; for, until occupied, it is held to belong to no + one. If, however (as often occurs), an island rises in a river, and it + lies in the middle of the stream, it belongs in common to the landowners + on either bank, in proportion to the extent of their riparian interest; + but if it lies nearer to one bank than to the other, it belongs to the + landowners on that bank only. If a river divides into two channels, and by + uniting again these channels transform a man's land into an island, the + ownership of that land is in no way altered: + </p> + <p> + 23 but if a river entirely leaves its old channel, and begins to run in a + new one, the old channel belongs to the landowners on either side of it in + proportion to the extent of their riparian interest, while the new one + acquires the same legal character as the river itself, and becomes public. + But if after a while the river returns to its old channel, the new channel + again becomes the property of those who possess the land along its banks. + </p> + <p> + 24 It is otherwise if one's land is wholly flooded, for a flood does not + permanently alter the nature of the land, and consequently if the water + goes back the soil clearly belongs to its previous owner. + </p> + <p> + 25 When a man makes a new object out of materials belonging to another, + the question usually arises, to which of them, by natural reason, does + this new object belong—to the man who made it, or to the owner of + the materials? For instance, one man may make wine, or oil, or corn, out + of another man's grapes, olives, or sheaves; or a vessel out of his gold, + silver, or bronze; or mead of his wine and honey; or a plaster or eyesalve + out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair + out of his timber. After many controversies between the Sabinians and + Proculians, the law has now been settled as follows, in accordance with + the view of those who followed a middle course between the opinions of the + two schools. If the new object can be reduced to the materials out of + which it was made, it belongs to the owner of the materials; if not, it + belongs to the person who made it. For instance, a vessel can be melted + down, and so reduced to the rude material—bronze, silver, or gold—of + which it is made: but it is impossible to reconvert wine into grapes, oil + into olives, or corn into sheaves, or even mead into the wine and honey + out of which it was compounded. But if a man makes a new object out of + materials which belong partly to him and partly to another—for + instance, mead of his own wine and another's honey, or a plaster or + eyesalve of drugs which are not all his own, or cloth of wool which + belongs only in part to him—in this case there can be no doubt that + the new object belongs to its creator, for he has contributed not only + part of the material, but the labour by which it was made. + </p> + <p> + 26 If, however, a man weaves into his own cloth another man's purple, the + latter, though the more valuable, becomes part of the cloth by accession; + but its former owner can maintain an action of theft against the + purloiner, and also a condiction, or action for reparative damages, + whether it was he who made the cloth, or some one else; for although the + destruction of property is a bar to a real action for its recovery, it is + no bar to a condiction against the thief and certain other possessors. + </p> + <p> + 27 If materials belonging to two persons are mixed by consent—for + instance, if they mix their wines, or melt together their gold or their + silver—the result of the mixture belongs to them in common. And the + law is the same if the materials are of different kinds, and their mixture + consequently results in a new object, as where mead is made by mixing wine + and honey, or electrum by mixing gold and silver; for even here it is not + doubted that the new object belongs in common to the owners of the + materials. And if it is by accident, and not by the intention of the + owners, that materials have become mixed, the law is the same, whether + they were of the same or of different kinds. + </p> + <p> + 28 But if the corn of Titius has become mixed with yours, and this by + mutual consent, the whole will belong to you in common, because the + separate bodies or grains, which before belonged to one or the other of + you in severalty, have by consent on both sides been made your joint + property. If, however, the mixture was accidental, or if Titius mixed the + two parcels of corn without your consent, they do not belong to you in + common, because the separate grains remain distinct, and their substance + is unaltered; and in such cases the corn no more becomes common property + than does a flock formed by the accidental mixture of Titius's sheep with + yours. But if either of you keeps the whole of the mixed corn, the other + can bring a real action for the recovery of such part of it as belongs to + him, it being part of the province of the judge to determine the quality + of the wheat which belonged to each. + </p> + <p> + 29 If a man builds upon his own ground with another's materials, the + building is deemed to be his property, for buildings become a part of the + ground on which they stand. And yet he who was owner of the materials does + not cease to own them, but he cannot bring a real action for their + recovery, or sue for their production, by reason of a clause in the Twelve + Tables providing that no one shall be compelled to take out of his house + materials (tignum), even though they belong to another, which have once + been built into it, but that double their value may be recovered by the + action called 'de tigno iniuncto.' The term tignum includes every kind of + material employed in building, and the object of this provision is to + avoid the necessity of having buildings pulled down; but if through some + cause or other they should be destroyed, the owner of the materials, + unless he has already sued for double value, may bring a real action for + recovery, or a personal action for production. + </p> + <p> + 30 On the other hand, if one man builds a house on another's land with his + own materials, the house belongs to the owner of the land. In this case, + however, the right of the previous owner in the materials is extinguished, + because he is deemed to have voluntarily parted with them, though only, of + course, if he was aware that the land on which he was building belonged to + another man. Consequently, though the house should be destroyed, he cannot + claim the materials by real action. Of course, if the builder of the house + has possession of the land, and the owner of the latter claims the house + by real action, but refuses to pay for the materials and the workmen's + wages, he can be defeated by the plea of fraud, provided the builder's + possession is in good faith: for if he knew that the land belonged to some + one else it may be urged against him that he was to blame for rashly + building on land owned to his knowledge by another man. + </p> + <p> + 31 If Titius plants another man's shrub in land belonging to himself, the + shrub will become his; and, conversely, if he plants his own shrub in the + land of Maevius, it will belong to Maevius. In neither case, however, will + the ownership be transferred until the shrub has taken root: for, until it + has done this, it continues to belong to the original owner. So strict + indeed is the rule that the ownership of the shrub is transferred from the + moment it has taken root, that if a neighbour's tree grows so close to the + land of Titius that the soil of the latter presses round it, whereby it + drives its roots entirely into the same, we say the tree becomes the + property of Titius, on the ground that it would be unreasonable to allow + the owner of a tree to be a different person from the owner of the land in + which it is rooted. Consequently, if a tree which grows on the boundaries + of two estates drives its roots even partially into the neighbour's soil, + it becomes the common property of the two landowners. + </p> + <p> + 32 On the same principle corn is reckoned to become a part of the soil in + which it is sown. But exactly as (according to what we said) a man who + builds on another's land can defend himself by the plea of fraud when sued + for the building by the owner of the land, so here too one who has in good + faith and at his own expense put crops into another man's soil can shelter + himself behind the same plea, if refused compensation for labour and + outlay. + </p> + <p> + 33 Writing again, even though it be in letters of gold, becomes a part of + the paper or parchment, exactly as buildings and sown crops become part of + the soil, and consequently if Titius writes a poem, or a history, or a + speech on your paper and parchment, the whole will be held to belong to + you, and not to Titius. But if you sue Titius to recover your books or + parchments, and refuse to pay the value of the writing, he will be able to + defend himself by the plea of fraud, provided that he obtained possession + of the paper or parchment in good faith. + </p> + <p> + 34 Where, on the other hand, one man paints a picture on another's board, + some think that the board belongs, by accession, to the painter, others, + that the painting, however great its excellence, becomes part of the + board. The former appears to us the better opinion, for it is absurd that + a painting by Apelles or Parrhasius should be an accessory of a board + which, in itself, is thoroughly worthless. Hence, if the owner of the + board has possession of the picture, and is sued for it by the painter, + who nevertheless refuses to pay the cost of the board, he will be able to + repel him by the plea of fraud. If, on the other hand, the painter has + possession, it follows from what has been said that the former owner of + the board, [if he is to be able to sue at all], must claim it by a + modified and not by a direct action; and in this case, if he refuses to + pay the cost of the picture, he can be repelled by the plea of fraud, + provided that the possession of the painter be in good faith; for it is + clear, that if the board was stolen by the painter, or some one else, from + its former owner, the latter can bring the action of theft. + </p> + <p> + 35 If a man in good faith buys land from another who is not its owner, + though he believed he was, or acquires it in good faith by gift or some + other lawful title, natural reason directs that the fruits which he has + gathered shall be his, in consideration of his care and cultivation: + consequently if the owner subsequently appears and claims the land by real + action, he cannot sue for fruits which the possessor has consumed. This, + however, is not allowed to one who takes possession of land which to his + knowledge belongs to another person, and therefore he is obliged not only + to restore the land, but to make compensation for fruits even though they + have been consumed. + </p> + <p> + 36 A person who has a usufruct in land does not become owner of the fruits + which grow thereon until he has himself gathered them; consequently fruits + which, at the moment of his decease, though ripe, are yet ungathered, do + not belong to his heir, but to the owner of the land. What has been said + applies also in the main to the lessee of land. + </p> + <p> + 37 The term 'fruits,' when used of animals, comprises their young, as well + as milk, hair, and wool; thus lambs, kids, calves, and foals, belong at + once, by the natural law of ownership, to the fructuary. But the term does + not include the offspring of a female slave, which consequently belongs to + her master; for it seemed absurd to reckon human beings as fruits, when it + is for their sake that all other fruits have been provided by nature. + </p> + <p> + 38 The usufructuary of a flock, as Julian held, ought to replace any of + the animals which die from the young of the rest, and, if his usufruct be + of land, to replace dead vines or trees; for it is his duty to cultivate + according to law and use them like a careful head of a family. + </p> + <p> + 39 If a man found treasure in his own land, the Emperor Hadrian, following + natural equity, adjudged to him the ownership of it, as he also did to a + man who found one by accident in soil which was sacred or religious. If he + found it in another man's land by accident, and without specially + searching for it, he gave half to the finder, half to the owner of the + soil; and upon this principle, if a treasure were found in land belonging + to the Emperor, he decided that half should belong to the latter, and half + to the finder; and consistently with this, if a man finds one in land + which belongs to the imperial treasury or the people, half belongs to him, + and half to the treasury or the State. + </p> + <p> + 40 Delivery again is a mode in which we acquire things by natural law; for + it is most agreeable to natural equity that where a man wishes to transfer + his property to another person his wish should be confirmed. Consequently + corporeal things, whatever be their nature, admit of delivery, and + delivery by their owner makes them the property of the alienee; this, for + instance, is the mode of alienating stipendiary and tributary estates, + that is to say, estates lying in provincial soil; between which, however, + and estates in Italy there now exists, according to our constitution, no + difference. + </p> + <p> + 41 And ownership is transferred whether the motive of the delivery be the + desire to make a gift, to confer a dowry, or any other motive whatsoever. + When, however, a thing is sold and delivered, it does not become the + purchaser's property until he has paid the price to the vendor, or + satisfied him in some other way, as by getting some one else to accept + liability for him, or by pledge. And this rule, though laid down also in + the statute of the Twelve Tables, is rightly said to be a dictate of the + law of all nations, that is, of natural law. But if the vendor gives the + purchaser credit, the goods sold belong to the latter at once. + </p> + <p> + 42 It is immaterial whether the person who makes delivery is the owner + himself, or some one else acting with his consent. + </p> + <p> + 43 Consequently, if any one is entrusted by an owner with the management + of his business at his own free discretion, and in the execution of his + commission sells and delivers any article, he makes the receiver its + owner. + </p> + <p> + 44 In some cases even the owner's bare will is sufficient, without + delivery, to transfer ownership. For instance, if a man sells or makes you + a present of a thing which he has previously lent or let to you or placed + in your custody, though it was not from that motive he originally + delivered it to you, yet by the very fact that he suffers it to be yours + you at once become its owner as fully as if it had been originally + delivered for the purpose of passing the property. + </p> + <p> + 45 So too if a man sells goods lying in a warehouse, he transfers the + ownership of them to the purchaser immediately he has delivered to the + latter the keys of the warehouse. + </p> + <p> + 46 Nay, in some cases the will of the owner, though directly only towards + an uncertain person, transfers the ownership of the thing, as for instance + when praetors and consuls throw money to a crowd: here they know not which + specific coin each person will get, yet they make the unknown recipient + immediately owner, because it is their will that each shall have what he + gets. + </p> + <p> + 47 Accordingly, it is true that if a man takes possession of property + abandoned by its previous owner, he at once becomes its owner himself: and + a thing is said to be abandoned which its owner throws away with the + deliberate intention that it shall no longer be part of his property, and + of which, consequently, he immediately ceases to be the owner. + </p> + <p> + 48 It is otherwise with things which are thrown overboard during a storm, + in order to lighten the ship; in the ownership of these things there is no + change, because the reason for which they are thrown overboard is + obviously not that the owner does not care to own them any longer, but + that he and the ship besides may be more likely to escape the perils of + the sea. Consequently any one who carries them off after they are washed + on shore, or who picks them up at sea and keeps them, intending to make a + profit thereby, commits a theft; for such things seem to be in much the + same position as those which fall out of a carriage in motion unknown to + their owners. + </p> + <p> + <a name="link2H_4_0030" id="link2H_4_0030"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE II. OF INCORPOREAL THINGS + </h2> + <h3> + Some things again are corporeal, and others incorporeal. + </h3> + <p> + 1 Those are corporeal which in their own nature are tangible, such as + land, slaves, clothing, gold, silver, and others innumerable. + </p> + <p> + 2 Things incorporeal are such as are intangible: rights, for instance, + such as inheritance, usufruct, and obligations, however acquired. And it + is no objection to this definition that an inheritance comprises things + which are corporeal; for the fruits of land enjoyed by a usufructuary are + corporeal too, and obligations generally relate to the conveyance of + something corporeal, such as land, slaves, or money, and yet the right of + succession, the right of usufruct, and the right existing in every + obligation, are incorporeal. + </p> + <p> + 3 So too the rights appurtenant to land, whether in town or country, which + are usually called servitudes, are incorporeal things. + </p> + <p> + <a name="link2H_4_0031" id="link2H_4_0031"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE III. OF SERVITUDES + </h2> + <p> + The following are rights appurtenant to country estates: 'iter,' the right + of passage at will for a man only, not of driving beast or vehicles; + 'actus,' the right of driving beasts or vehicles (of which two the latter + contains the former, though the former does not contain the latter, so + that a man who has iter has not necessarily actus, while if he has actus + he has also iter, and consequently can pass himself even though + unaccompanied by cattle); 'via,' which is the right of going, of driving + any thing whatsoever, and of walking, and which thus contains both iter + and actus; and fourthly, 'aquaeductus,' the right of conducting water over + another man's land. + </p> + <p> + 1 Servitudes appurtenant to town estates are rights which are attached to + buildings; and they are said to appertain to town estates because all + buildings are called 'town estates,' even though they are actually in the + country. The following are servitudes of this kind—the obligation of + a man to support the weight of his neighbour's house, to allow a beam to + be let into his wall, or to receive the rain from his neighbour's roof on + to his own either in drops or from a shoot, or from a gutter into his + yard; the converse right of exemption from any of these obligations; and + the right of preventing a neighbour from raising his buildings, lest + thereby one's ancient lights be obstructed. + </p> + <p> + 2 Some think that among servitudes appurtenant to country estates ought + properly to be reckoned the rights of drawing water, of watering cattle, + of pasture, of burning lime, and of digging sand. + </p> + <p> + 3 These servitudes are called rights attached to estates, because without + estates they cannot come into existence; for no one can acquire or own a + servitude attached to a town or country estate unless he has an estate for + it to be attached to. + </p> + <p> + 4 When a landowner wishes to create any of these rights in favour of his + neighbour, the proper mode of creation is agreement followed by + stipulation. By testament too one can impose on one's heir an obligation + not to raise the height of his house so as to obstruct his neighbour's + ancient lights, or bind him to allow a neighbour to let a beam into his + wall, to receive the rain water from a neighbour's pipe, or allow a + neighbour a right of way, of driving cattle or vehicles over his land, or + conducting water over it. + </p> + <p> + <a name="link2H_4_0032" id="link2H_4_0032"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IV. OF USUFRUCT + </h2> + <p> + Usufruct is the right of using and taking the fruits of property not one's + own, without impairing the substance of that property; for being a right + over a corporeal thing, it is necessarily extinguished itself along with + the extinction of the latter. + </p> + <p> + 1 Usufruct is thus a right detached from the aggregate of rights involved + in ownership, and this separation can be effected in very many ways: for + instance, if one man gives another a usufruct by legacy, the legatee has + the usufruct, while the heir has merely the bare ownership; and, + conversely, if a man gives a legacy of an estate, reserving the usufruct, + the usufruct belongs to the heir, while only the bare ownership is vested + in the legatee. Similarly, he can give to one man a legacy of the + usufruct, to another one of the estate, subject to the other's usufruct. + If it is wished to create a usufruct in favour of another person otherwise + than by testament, the proper mode is agreement followed by stipulation. + However, lest ownership should be entirely valueless through the permanent + separation from it of the usufruct, certain modes have been approved in + which usufruct may be extinguished, and thereby revert to the owner. + </p> + <p> + 2 A usufruct may be created not only in land or buildings, but also in + slaves, cattle, and other objects generally, except such as are actually + consumed by being used, of which a genuine usufruct is impossible by both + natural and civil law. Among them are wine, oil, grain, clothing, and + perhaps we may also say coined money; for a sum of money is in a sense + extinguished by changing hands, as it constantly does in simply being + used. For convenience sake, however, the senate enacted that a usufruct + could be created in such things, provided that due security be given to + the heir. Thus if a usufruct of money be given by legacy, that money, on + being delivered to the legatee, becomes his property, though he has to + give security to the heir that he will repay an equivalent sum on his + dying or undergoing a loss of status. And all things of this class, when + delivered to the legatee, become his property, though they are first + appraised, and the legatee then gives security that if he dies or + undergoes a loss of status he will ay the value which was put upon them. + Thus in point of fact the senate did not introduce a usufruct of such + things, for that was beyond its power, but established a right analogous + to usufruct by requiring security. + </p> + <p> + 3 Usufruct determines by the death of the usufructuary, by his undergoing + either of the greater kinds of loss of status, by its improper exercise, + and by its nonexercise during the time fixed by law; all of which points + are settled by our constitution. It is also extinguished when surrendered + to the owner by the usufructuary (though transfer to a third person is + inoperative); and again, conversely, by the fructuary becoming owner of + the thing, this being called consolidation. Obviously, a usufruct of a + house is extinguished by the house being burnt down, or falling through an + earthquake or faulty construction; and in such case a usufruct of the site + cannot be claimed. + </p> + <p> + 4 When a usufruct determines, it reverts to and is reunited with the + ownership; and from that moment he who before was but bare owner of the + thing begins to have full power over it. + </p> + <p> + <a name="link2H_4_0033" id="link2H_4_0033"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE V. OF USE AND HABITATION + </h2> + <p> + A bare use, or right of using a thing, is created in the same mode as a + usufruct, and the modes in which it may determine are the same as those + just described. + </p> + <p> + 1 A use is a less right than a usufruct; for if a man has a bare use of an + estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, + straw, and wood upon it only so far as his daily needs require: he may + remain on the land only so long as he does not inconvenience its owner, or + impede those who are engaged in its cultivation; but he cannot let or sell + or give away his right to a third person, whereas a usufructuary may. + </p> + <p> + 2 Again, a man who has the use of a house is deemed entitled only to live + in it himself; he cannot transfer his right to a third person, and it + scarcely seems to be agreed that he may take in a guest; but besides + himself he may lodge there his wife, children, and freedmen, and other + free persons who form as regular a part of his establishment as his + slaves. Similarly, if a woman has the use of a house, her husband may + dwell there with her. + </p> + <p> + 3 When a man has the use of a slave, he has only the right of personally + using his labour and services; in no way is he allowed to transfer his + right to a third person, and the same applies to the use of beasts of + burden. + </p> + <p> + 4 If a legacy be given of the use of a herd or of a flock of sheep, the + usuary may not use the milk, lambs, or wool, for these are fruits; but of + course he may use the animals for the purpose of manuring his land. + </p> + <p> + 5 If a right of habitation be given to a man by legacy or in some other + mode, this seems to be neither a use nor a usufruct, but a distinct and as + it were independent right; and by a constitution which we have published + in accordance with the opinion of Marcellus, and in the interests of + utility, we have permitted persons possessed of this right not only to + live in the building themselves, but also to let it out to others. + </p> + <p> + 6 What we have here said concerning servitudes, and the rights of + usufruct, use, and habitation, will be sufficient; of inheritance and + obligations we will treat in their proper places respectively. And having + now briefly expounded the modes in which we acquire things by the law of + nations, let us turn and see in what modes they are acquired by statute or + by civil law. + </p> + <p> + <a name="link2H_4_0034" id="link2H_4_0034"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VI. OF USUCAPION AND LONG POSSESSION + </h2> + <p> + It was a rule of the civil law that if a man in good faith bought a thing, + or received it by way of gift, or on any other lawful ground, from a + person who was not its owner, but whom he believed to be such, he should + acquire it by usucapion—if a movable, by one year's possession, and + by two years' possession if an immovable, though in this case only if it + were in Italian soil;—the reason of the rule being the inexpediency + of allowing ownership to be long unascertained. The ancients thus + considered that the periods mentioned were sufficient to enable owners to + look after their property; but we have arrived at a better opinion, in + order to save people from being overquickly defrauded of their own, and to + prevent the benefit of this institution from being confined to only a + certain part of the empire. We have consequently published a constitution + on the subject, enacting that the period of usucapion for movables shall + be three years, and that ownership of immovables shall be acquired by long + possession—possession, that is to say, for ten years, if both + parties dwell in the same province, and for twenty years if in different + provinces; and things may in these modes be acquired in full ownership, + provided the possession commences on a lawful ground, not only in Italy + but in every land subject to our sway. + </p> + <p> + 1 Some things, however, not withstanding the good faith of the possessor, + and the duration of his possession, cannot be acquired by usucapion; as is + the case, for instance, if one possesses a free man, a thing sacred or + religious, or a runaway slave. + </p> + <p> + 2 Things again of which the owner lost possession by theft, or possession + of which was gained by violence, cannot be acquired by usucapion, even by + a person who has possessed them in good faith for the specified period: + for stolen things are declared incapable of usucapion by the statute of + the Twelve Tables and by the lex Atinia, and things taken with violence by + the lex Iulia et Plautia. + </p> + <p> + 3 The statement that things stolen or violently possessed cannot, by + statute, be acquired by usucapion, means, not that the thief or violent + dispossessor is incapable of usucapion—for these are barred by + another reason, namely the fact that their possession is not in good + faith; but that even a person who has purchased the thing from them in + good faith, or received it on some other lawful ground, is incapable of + acquiring by usucapion. Consequently, in things movable even a person who + possesses in good faith can seldom acquire ownership by usucapion, for he + who sells, or on some other ground delivers possession of a thing + belonging to another, commits a theft. + </p> + <p> + 4 However, this admits of exception; for if an heir, who believes a thing + lent or let to, or deposited with, the person whom he succeeds, to be a + portion of the inheritance, sells or gives it by way of dowry to another + who receives it in good faith, there is no doubt that the latter can + acquire the ownership of it by usucapion; for the thing is here not + tainted with the flaw attaching to stolen property, because an heir does + not commit a theft who in good faith conveys a thing away believing it to + be his own. + </p> + <p> + 5 Again, the usufructuary of a female slave, who believes her offspring to + be his property, and sells or gives it away, does not commit a theft: for + theft implies unlawful intention. + </p> + <p> + 6 There are also other ways in which one man can transfer to another + property which is not his own, without committing a theft, and thereby + enable the receiver to acquire by usucapion. + </p> + <p> + 7 Usucapion of property classed among things immovable is an easier + matter; for it may easily happen that a man may, without violence, obtain + possession of land which, owing to the absence or negligence of its owner, + or to his having died and left no successor, is presently possessed by no + one. Now this man himself does not possess in good faith, because he knows + the land on which he has seized is not his own: but if he delivers it to + another who receives it in good faith, the latter can acquire it by long + possession, because it has neither been stolen nor violently possessed; + for the idea held by some of the ancients, that a piece of land or a place + can be stolen, has now been exploded, and imperial constitutions have been + enacted in the interests of persons possessing immovables, to the effect + that no one ought to be deprived of a thing of which he has had long and + unquestioned possession. + </p> + <p> + 8 Sometimes indeed even things which have been stolen or violently + possessed can be acquired by usucapion, as for instance after they have + again come under the power of their real owner: for by this they are + relieved from the taint which had attached to them, and so become capable + of usucapion. + </p> + <p> + 9 Things belonging to our treasury cannot be acquired by usucapion. But + there is on record an opinion of Papinian, supported by the rescripts of + the Emperors Pius, Severus, and Antoninus, that if, before the property of + a deceased person who has left no heir is reported to the exchequer, some + one has bought or received some part thereof, he can acquire it by + usucapion. + </p> + <p> + 10 Finally, it is to be observed that things are incapable of being + acquired through usucapion by a purchaser in good faith, or by one who + possesses on some other lawful ground, unless they are free from all flaws + which vitiate the usucapion. + </p> + <p> + 11 If there be a mistake as to the ground on which possession is acquired, + and which it is wrongly supposed will support usucapion, usucapion cannot + take place. Thus a man's possession may be founded on a supposed sale or + gift, whereas in point of fact there has been no sale or gift at all. + </p> + <p> + 12 Long possession which has begun to run in favour of a deceased person + continues to run on in favour of his heir or praetorian successor, even + though he knows that the land belongs to another person. But if the + deceased's possession had not a lawful inception, it is not available to + the heir or praetorian successor, although ignorant of this. Our + constitution has enacted that in usucapion too a similar rule shall be + observed, and that the benefit of the possession shall continue in favour + of the successor. + </p> + <p> + 13 The Emperors Severus and Antoninus have decided by a rescript that a + purchaser too may reckon as his own the time during which his vendor has + possessed the thing. + </p> + <p> + 14 Finally, it is provided by an edict of the Emperor Marcus that after an + interval of five years a purchaser from the treasury of property belonging + to a third person may repel the owner, if sued by him, by an exception. + But a constitution issued by Zeno of sacred memory has protected persons + who acquire things from the treasury by purchase, gift, or other title, + affording them complete security from the moment of transfer, and + guaranteeing their success in any action relating thereto, whether they be + plaintiffs or defendants; while it allows those who claim any action in + respect of such property as owners or pledges to sue the imperial treasury + at any time within four years from the transaction. A divine constitution + which we ourselves have lately issued has extended the operation of Zeno's + enactment, respecting conveyances by the treasury, to persons who have + acquired anything from our palace or that of the Empress. + </p> + <p> + <a name="link2H_4_0035" id="link2H_4_0035"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VII. OF GIFTS + </h2> + <p> + Another mode in which property is acquired is gift. Gifts are of two + kinds; those made in contemplation of death, and those not so made. + </p> + <p> + 1 Gifts of the first kind are those made in view of approaching death, the + intention of the giver being that in the event of his decease the thing + given should belong to the donee, but that if he should survive or should + desire to revoke the gift, or if the donee should die first, the thing + should be restored to him. These gifts in contemplation of death now stand + on exactly the same footing as legacies; for as in some respects they were + more like ordinary gifts, in others more like legacies, the jurists + doubted under which of these two classes they should be placed, some being + for gift, others for legacy: and consequently we have enacted by + constitution that in nearly every respect they shall be treated like + legacies, and shall be governed by the rules laid down respecting them in + our constitution. In a word, a gift in contemplation of death is where the + donor would rather have the thing himself than that the donee should have + it, and that the latter should rather have it than his own heir. An + illustration may be found in Homer, where Telemachus makes a gift to + Piraeus. + </p> + <p> + 2 Gifts which are made without contemplation of death, which we call gifts + between the living, are of another kind, and have nothing in common with + legacies. If the transaction be complete, they cannot be revoked at + pleasure; and it is complete when the donor has manifested his intention, + whether in writing or not. Our constitution has settled that such a + manifestation of intention binds the donor to deliver, exactly as in the + case of sale; so that even before delivery gifts are completely effectual, + and the donor is under a legal obligation to deliver the object. + Enactments of earlier emperors required that such gifts, if in excess of + two hundred solidi, should be officially registered; but our constitution + has raised this maximum to five hundred solidi, and dispensed with the + necessity of registering gifts of this or of a less amount; indeed it has + even specified some gifts which are completely valid, and require no + registration, irrespective of their amount. We have devised many other + regulations in order to facilitate and secure gifts, all of which may be + gathered from the constitutions which we have issued on this topic. It is + to be observed, however, that even where gifts have been completely + executed we have by our constitution under certain circumstances enabled + donors to revoke them, but only on proof of ingratitude on the part of the + recipient of the bounty; the aim of this reservation being to protect + persons, who have given their property to others, from suffering at the + hands of the latter injury or loss in any of the modes detailed in our + constitution. + </p> + <p> + 3 There is another specific kind of gift between the living, with which + the earlier jurists were quite unacquainted, and which owed its later + introduction to more recent emperors. It was called gift before marriage, + and was subject to the implied condition that it should not be binding + until the marriage had taken place; its name being due to the fact that it + was always made before the union of the parties, and could never take + place after the marriage had once been celebrated. The first change in + this matter was made by our imperial father Justin, who, as it had been + allowed to increase dowries even after marriage, issued a constitution + authorizing the increase of gifts before marriage during the continuance + of the marriage tie in cases where an increase had been made to the dowry. + The name 'gift before marriage' was, however, still retained, though now + inappropriate, because the increase was made to it after the marriage. We, + however, in our desire to perfect the law, and to make names suit the + things which they are used to denote, have by a constitution permitted + such gifts to be first made, and not merely increased, after the + celebration of the marriage, and have directed that they shall be called + gifts 'on account of' (and not 'before') marriage, thereby assimilating + them to dowries; for as dowries are not only increased, but actually + constituted, during marriage, so now gifts on account of marriage may be + not only made before the union of the parties, but may be first made as + well as increased during the continuance of that union. + </p> + <p> + 4 There was formerly too another civil mode of acquisition, namely, by + accrual, which operated in the following way: if a person who owned a + slave jointly with Titius gave him his liberty himself alone by + vindication or by testament, his share in the slave was lost, and went to + the other joint owner by accrual. But as this rule was very bad as a + precedent—for both the slave was cheated of his liberty, and the + kinder masters suffered all the loss while the harsher ones reaped all the + gain—we have deemed it necessary to suppress a usage which seemed so + odious, and have by our constitution provided a merciful remedy, by + discovering a means by which the manumitter, the other joint owner, and + the liberated slave, may all alike be benefited. Freedom, in whose behalf + even the ancient legislators clearly established many rules at variance + with the general principles of law, will be actually acquired by the + slave; the manumitter will have the pleasure of seeing the benefit of his + kindness undisturbed; while the other joint owner, by receiving a money + equivalent proportionate to his interest, and on the scale which we have + fixed, will be indemnified against all loss. + </p> + <p> + <a name="link2H_4_0036" id="link2H_4_0036"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE + </h2> + <p> + It sometimes happens that an owner cannot alienate, and that a nonowner + can. Thus the alienation of dowry land by the husband, without the consent + of the wife, is prohibited by the lex Iulia, although, since it has been + given to him as dowry, he is its owner. We, however, have amended the lex + Iulia, and thus introduced an improvement; for that statute applied only + to land in Italy, and though it prohibited a mortgage of the land even + with the wife's consent, it forbade it to be alienated only without her + concurrence. To correct these two defects we have forbidden mortgages as + well as alienations of dowry land even when it is situated in the + provinces, so that such land can now be dealt with in neither of these + ways, even if the wife concurs, lest the weakness of the female sex should + be used as a means to the wasting of their property. + </p> + <p> + 1 Conversely, a pledgee, in pursuance of his agreement, may alienate the + pledge, though not its owner; this, however, may seem to rest on the + assent of the pledgor given at the inception of the contract, in which it + was agreed that the pledgee should have a power of sale in default of + repayment. But in order that creditors may not be hindered from pursuing + their lawful rights, or debtors be deemed to be overlightly deprived of + their property, provisions have been inserted in our constitution and a + definite procedure established for the sale of pledges, by which the + interests of both creditors and debtors have been abundantly guarded. + </p> + <p> + 2 We must next observe that no pupil of either sex can alienate anything + without his or her guardian's authority. Consequently, if a pupil attempts + to lend money without such authority, no property passes, and he does not + impose a contractual obligation; hence the money, if it exists, can be + recovered by real action. If the money which he attempted to lend has been + spent in good faith by the wouldbe borrower, it can be sued for by the + personal action called condiction; if it has been fraudulently spent, the + pupil can sue by personal action for its production. On the other hand, + things can be validly conveyed to pupils of either sex without the + guardian's authority; accordingly, if a debtor wishes to pay a pupil, he + must obtain the sanction of the guardian to the transaction, else he will + not be released. In a constitution which we issued to the advocates of + Caesarea at the instance of the distinguished Tribonian, quaestor of our + most sacred palace, it has with the clearest reason been enacted, that the + debtor of a pupil may safely pay a guardian or curator by having first + obtained permission by the order of a judge, for which no fee is to be + payable: and if the judge makes the order, and the debtor in pursuance + thereof makes payment, he is completely protected by this form of + discharge. Supposing, however, that the form of payment be other than that + which we have fixed, and that the pupil, though he still has the money in + his possession, or has been otherwise enriched by it, attempts to recover + the debt by action, he can be repelled by the plea of fraud. If on the + other hand he has squandered the money or had it stolen from him, the plea + of fraud will not avail the debtor, who will be condemned to pay again, as + a penalty for having carelessly paid without the guardian's authority, and + not in accordance with our regulation. Pupils of either sex cannot validly + satisfy a debt without their guardian's authority, because the money paid + does not become the creditor's property; the principle being that no pupil + is capable of alienation without his guardian's sanction. + </p> + <p> + <a name="link2H_4_0037" id="link2H_4_0037"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE + </h2> + <p> + We acquire property not only by our own acts, but also by the acts of + persons in our power, of slaves in whom we have a usufruct, and of freemen + and slaves belonging to another but whom we possess in good faith. Let us + now examine these cases in detail. + </p> + <p> + 1 Formerly, whatever was received by a child in power of either sex, with + the exception of military peculium, was acquired for the parent without + any distinction; and the parent was entitled to give away or sell to one + child, or to a stranger, what had been acquired through another, or + dispose of it in any other way that he pleased. This, however, seemed to + us to be a cruel rule, and consequently by a general constitution which we + have issued we have improved the children's position, and yet reserved to + parents all that was their due. This enacts that whatever a child gains by + and through property, of which his father allows him the control, is + acquired, according to the old practice, for the father alone; for what + unfairness is there in property derived from the father returning to him? + But of anything which the child derives from any source other than his + father, though his father will have a usufruct therein, the ownership is + to belong to the child, that he may not have the mortification of seeing + the gains which he has made by his own toil or good fortune transferred to + another. + </p> + <p> + 2 We have also made a new rule relating to the right which a father had + under earlier constitutions, when he emancipated a child, of retaining + absolutely, if he pleased, a third part of such property of the child as + he himself had no ownership in, as a kind of consideration for + emancipating him. The harsh result of this was that a son was by + emancipation deprived of the ownership of a third of his property; and + thus the honour which he got by being emancipated and made independent was + balanced by the diminution of his fortune. We have therefore enacted that + the parent, in such a case, shall no longer retain the ownership of a + third of the child's property, but, in lieu thereof, the usufruct of one + half; and thus the son will remain absolute owner of the whole of his + fortune, while the father will reap a greater benefit than before, by + being entitled to the enjoyment of a half instead of a third. + </p> + <p> + 3 Again, all rights which your slaves acquire by tradition, stipulation, + or any other title, are acquired for you, even though the acquisition be + without your knowledge, or even against your will; for a slave, who is in + the power of another person, can have nothing of his own. Consequently, if + he is instituted heir, he must, in order to be able to accept the + inheritance, have the command of his master; and if he has that command, + and accepts the inheritance, it is acquired for his master exactly as if + the latter had himself been instituted heir; and it is precisely the same + with a legacy. And not only is ownership acquired for you by those in your + power, but also possession; for you are deemed to possess everything of + which they have obtained detention, and thus they are to you instruments + through whom ownership may be acquired by usucapion or long possession. + </p> + <p> + 4 Respecting slaves in whom a person has only a usufruct, the rule is, + that what they acquire by means of the property of the usufructuary, or by + their own work, is acquired for him; but what they acquire by any other + means belongs to their owner, to whom they belong themselves. Accordingly, + if such a slave is instituted heir, or made legatee or donee, the + succession, legacy, or gift is acquired, not for the usufructuary, but for + the owner. And a man who in good faith possesses a free man or a slave + belonging to another person has the same rights as a usufructuary; what + they acquire by any other mode than the two we have mentioned belongs in + the one case to the free man, in the other to the slave's real master. + After a possessor in good faith has acquired the ownership of a slave by + usucapion, everything which the slave acquires belongs to him without + distinction; but a fructuary cannot acquire ownership of a slave in this + way, because in the first place he does not possess the slave at all, but + has merely a right of usufruct in him, and because in the second place he + is aware of the existence of another owner. Moreover, you can acquire + possession as well as ownership through slaves in whom you have a usufruct + or whom you possess in good faith, and through free persons whom in good + faith you believe to be your slaves, though as regards all these classes + we must be understood to speak with strict reference to the distinction + drawn above, and to mean only detention which they have obtained by means + of your property or their own work. + </p> + <p> + 5 From this it appears that free men not subject to your power, or whom + you do not possess in good faith, and other persons' slaves, of whom you + are neither usufructuaries nor just possessors, cannot under any + circumstances acquire for you; and this is the meaning of the maxim that a + man cannot be the means of acquiring anything for one who is a stranger in + relation to him. To this maxim there is but one exception—namely, + that, as is ruled in a constitution of the Emperor Severus, a free person, + such as a general agent, can acquire possession for you, and that not only + when you know, but even when you do not know of the fact of the + acquisition: and through this possession ownership can be immediately + acquired also, if it was the owner who delivered the thing; and if it was + not, it can be acquired ultimately by usucapion or by the plea of long + possession. + </p> + <p> + 6 So much at present concerning the modes of acquiring rights over single + things: for direct and fiduciary bequests, which are also among such + modes, will find a more suitable place in a later portion of our treatise. + We proceed therefore to the titles whereby an aggregate of rights is + acquired. If you become the successors, civil or praetorian, of a person + deceased, or adopt an independent person by adrogation, or become + assignees of a deceased's estate in order to secure their liberty to + slaves manumitted by his will, the whole estate of those persons is + transferred to you in an aggregate mass. Let us begin with inheritances, + whose mode of devolution is twofold, according as a person dies testate or + intestate; and of these two modes we will first treat of acquisition by + will. The first point which here calls for exposition is the mode in which + wills are made. + </p> + <p> + <a name="link2H_4_0038" id="link2H_4_0038"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE X. OF THE EXECUTION OF WILLS + </h2> + <p> + The term testament is derived from two words which mean a signifying of + intention. + </p> + <p> + 1 Lest the antiquities of this branch of law should be entirely forgotten, + it should be known that originally two kinds of testaments were in use, + one of which our ancestors employed in times of peace and quiet, and which + was called the will made in the comitia calata, while the other was + resorted to when they were setting out to battle, and was called + procinctum. More recently a third kind was introduced, called the will by + bronze and balance, because it was made by mancipation, which was a sort + of fictitious sale, in the presence of five witnesses and a balance + holder, all Roman citizens above the age of puberty, together with the + person who was called the purchaser of the family. The two first-mentioned + kinds of testament, however, went out of use even in ancient times, and + even the third, or will by bronze and balance, though it has remained in + vogue longer than they, has become partly disused. + </p> + <p> + 2 All these three kinds of will which we have mentioned belonged to the + civil law, but later still a fourth form was introduced by the praetor's + edict; for the new law of the praetor, or ius honorarium, dispensed with + mancipation, and rested content with the seals of seven witnesses, whereas + the seals of witnesses were not required by the civil law. + </p> + <p> + 3 When, however, by a gradual process the civil and praetorian laws, + partly by usage, partly by definite changes introduced by the + constitution, came to be combined into a harmonious whole, it was enacted + that a will should be valid which was wholly executed at one time and in + the presence of seven witnesses (these two points being required, in a + way, by the old civil law), to which the witnesses signed their names—a + new formality imposed by imperial legislation—and affixed their + seals, as had been required by the praetor's edict. Thus the present law + of testament seems to be derived from three distinct sources; the + witnesses, and the necessity of their all being present continuously + through the execution of the will in order that the execution may be + valid, coming from the civil law: the signing of the document by the + testator and the witnesses being due to imperial constitutions, and the + exact number of witnesses, and the sealing of the will by them, to the + praetor's edict. + </p> + <p> + 4 An additional requirement imposed by our constitution, in order to + secure the genuineness of testaments and prevent forgery, is that the name + of the heir shall be written by either the testator or the witnesses, and + generally that everything shall be done according to the tenor of that + enactment. + </p> + <p> + 5 The witnesses may all seal the testament with the same seal; for, as + Pomponius remarks, what if the device on all seven seals were the same? It + is also lawful for a witness to use a seal belonging to another person. + </p> + <p> + 6 Those persons only can be witnesses who are legally capable of + witnessing a testament. Women, persons below the age of puberty, slaves, + lunatics, persons dumb or deaf, and those who have been interdicted from + the management of their property, or whom the law declares worthless and + unfitted to perform this office, cannot witness a will. + </p> + <p> + 7 In cases where one of the witnesses to a will was thought free at the + time of its execution, but was afterwards discovered to be a slave, the + Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the + Emperors Severus and Antoninus declared that of their goodness they would + uphold such a will as validly made; for, at the time when it was sealed, + this witness was admitted by all to be free, and, as such, had had his + civil position called in question by no man. + </p> + <p> + 8 A father and a son in his power, or two brothers who are both in the + power of one father, can lawfully witness the same testament, for there + can be no harm in several persons of the same family witnessing together + the act of a man who is to them a stranger. + </p> + <p> + 9 No one, however, ought to be among the witnesses who is in the + testator's power, and if a son in power makes a will of military peculium + after his discharge, neither his father nor any one in his father's power + is qualified to be a witness; for it is not allowed to support a will by + the evidence of persons in the same family with the testator. + </p> + <p> + 10 No will, again, can be witnessed by the person instituted heir, or by + any one in his power, or by a father in whose power he is, or by a brother + under the power of the same father: for the execution of a will is + considered at the present day to be purely and entirely a transaction + between the testator and the heir. Through mistaken ideas on this matter + the whole law of testamentary evidence fell into confusion: for the + ancients, though they rejected the evidence of the purchaser of the family + and of persons connected with him by the tie of power, allowed a will to + be witnessed by the heir and persons similarly connected with him, though + it must be admitted that they accompanied this privilege with urgent + cautions against its abuse. We have, however, amended this rule, and + enacted in the form of law what the ancients expressed in the form only of + advice, by assimilating the heir to the old purchaser of the family, and + have rightly forbidden the heir, who now represents that character, and + all other persons connected with him by the tie referred to, to bear + witness in a matter in which, in a sense, they would be witnesses in their + own behalf. Accordingly, we have not allowed earlier constitutions on this + subject to be inserted in our Code. + </p> + <p> + 11 Legatees, and persons who take a benefit under a will by way of trust, + and those connected with them, we have not forbidden to be witnesses, + because they are not universal successors of the deceased: indeed, by one + of our constitutions we have specially granted this privilege to them, + and, a fortiori, to persons in their power, or in whose power they are. + </p> + <p> + 12 It is immaterial whether the will be written on a tablet, paper, + parchment, or any other substance: and a man may execute any number of + duplicates of his will, for this is sometimes necessary, though in each of + them the usual formalities must be observed. For instance, a person + setting out upon a voyage may wish to take a statement of his last wishes + along with him, and also to leave one at home; and numberless other + circumstances which happen to a man, and over which he has no control, + will make this desirable. + </p> + <p> + 14 So far of written wills. When, however, one wishes to make a will + binding by the civil law, but not in writing, he may summon seven + witnesses, and in their presence orally declare his wishes; this, it + should be observed, being a form of will which has been declared by + constitutions to be perfectly valid by civil law. + </p> + <p> + <a name="link2H_4_0039" id="link2H_4_0039"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XI. OF SOLDIERS' WILLS + </h2> + <p> + Soldiers, in consideration of their extreme ignorance of law, have been + exempted by imperial constitutions from the strict rules for the execution + of a testament which have been described. Neither the legal number of + witnesses, nor the observance of the other rules which have been stated, + is necessary to give force to their wills, provided, that is to say, that + they are made by them while on actual service; this last qualification + being a new though wise one introduced by our constitution. Thus, in + whatever mode a soldier's last wishes are declared, whether in writing or + orally, this is a binding will, by force of his mere intention. At times, + however, when they are not employed on actual service, but are living at + home or elsewhere, they are not allowed to claim this privilege: they may + make a will, even though they be sons in power, in virtue of their + service, but they must observe the ordinary rules, and are bound by the + forms which we described above as requisite in the execution of wills of + civilians. + </p> + <p> + 1 Respecting the testaments of soldiers the Emperor Trajan sent a rescript + to Statilius Severus in the following terms: 'The privilege allowed to + soldiers of having their wills upheld, in whatever manner they are made, + must be understood to be limited by the necessity of first proving that a + will has been made at all; for a will can be made without writing even by + civilians. Accordingly, with reference to the inheritance which is the + subject of the action before you, if it can be shown that the soldier who + left it, did in the presence of witnesses, collected expressly for this + purpose, declare orally who he wished to be his heir, and on what slaves + he wished to confer liberty, it may well be maintained that in this way he + made an unwritten testament, and his wishes therein declared ought to be + carried out. But if, as is so common in ordinary conversation, he said to + some one, I make you my heir, or, I leave you all my property, such + expressions cannot be held to amount to a testament, and the interest of + the very soldiers, who are privileged in the way described, is the + principal ground for rejecting such a precedent. For if it were admitted, + it would be easy, after a soldier's death, to procure witnesses to affirm + that they had heard him say he left his property to any one they pleased + to name, and in this way it would be impossible to discover the true + intentions of the deceased.' + </p> + <p> + 2 A soldier too may make a will though dumb and deaf. + </p> + <p> + 3 This privilege, however, which we have said soldiers enjoy, is allowed + them by imperial constitutions only while they are engaged on actual + service, and in camp life. Consequently, if veterans wish to make a will + after their discharge, or if soldiers actually serving wish to do this + away from camp, they must observe the forms prescribed for all citizens by + the general law; and a testament executed in camp without formalities, + that is to say, not according to the form prescribed by law, will remain + valid only for one year after the testator's discharge. Supposing then + that the testator died within a year, but that a condition, subject to + which the heir was instituted, was not fulfilled within the year, would it + be feigned that the testator was a soldier at the date of his decease, and + the testament consequently upheld? and this question we answer in the + affirmative. + </p> + <p> + 4 If a man, before going on actual service, makes an invalid will, and + then during a campaign opens it, and adds some new disposition, or cancels + one already made, or in some other way makes it clear that he wishes it to + be his testament, it must be pronounced valid, as being, in fact, a new + will made by the man as a soldier. + </p> + <p> + 5 Finally, if a soldier is adrogated, or, being a son in power, is + emancipated, his previously executed will remains good by the fiction of a + new expression of his wishes as a soldier, and is not deemed to be avoided + by his loss of status. + </p> + <p> + 6 It is, however, to be observed that earlier statutes and imperial + constitutions allowed to children in power in certain cases a civil + peculium after the analogy of the military peculium, which for that reason + was called quasimilitary, and of which some of them were permitted to + dispose by will even while under power. By an extension of this principle + our constitution has allowed all persons who have a peculium of this + special kind to dispose of it by will, though subject to the ordinary + forms of law. By a perusal of this constitution the whole law relating to + this privilege may be ascertained. + </p> + <p> + <a name="link2H_4_0040" id="link2H_4_0040"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS + </h2> + <p> + Certain persons are incapable of making a lawful will. For instance, those + in the power of others are so absolutely incapable that they cannot make a + testament even with the permission of their parents, with the exception of + those whom we have enumerated, and particularly of children in power who + are soldiers, and who are permitted by imperial constitution to dispose by + will of all they may acquire while on actual service. This was allowed at + first only to soldiers on active service, by the authority of the Emperors + Augustus and Nerva, and of the illustrious Emperor Trajan; afterwards, it + was extended by an enactment of the Emperor Hadrian to veterans, that is, + soldiers who had received their discharge. Accordingly, if a son in power + makes a will of his military peculium, it will belong to the person whom + he institutes as heir: but if he dies intestate, leaving no children or + brothers surviving him, it will go to the parent in whose power he is, + according to the ordinary rule. From this it can be understood that a + parent has no power to deprive a son in his power of what he has acquired + on service, nor can the parent's creditors sell or otherwise touch it; and + when the parent dies it is not shared between the soldier's son and his + brothers, but belongs to him alone, although by the civil law the peculium + of a person in power is always reckoned as part of the property of the + parent, exactly as that of a slave is deemed part of the property of his + master, except of course such property of the son as by imperial + constitutions, and especially our own, the parent is unable to acquire in + absolute ownership. Consequently, if a son in power, not having a military + or quasimilitary peculium, makes a will, it is invalid, even though he is + released from power before his decease. + </p> + <p> + 1 Again, a person under the age of puberty is incapable of making a will, + because he has no judgement, and so too is a lunatic, because he has lost + his reason; and it is immaterial that the one reaches the age of puberty, + and the other recovers his faculties, before his decease. If, however, a + lunatic makes a will during a lucid interval, the will is deemed valid, + and one is certainly valid which he made before he lost his reason: for + subsequent insanity never avoids a duly executed testament or any other + disposition validly made. + </p> + <p> + 2 So too a spendthrift, who is interdicted from the management of his own + affairs, is incapable of making a valid will, though one made by him + before being so interdicted holds good. + </p> + <p> + 3 The deaf, again, and the dumb cannot always make a will, though here we + are speaking not of persons merely hard of hearing, but of total deafness, + and similarly by a dumb person is meant one totally dumb, and not one who + merely speaks with difficulty; for it often happens that even men of + culture and learning by some cause or other lose the faculties of speech + and hearing. Hence relief has been afforded them by our constitution, + which enables them, in certain cases and in certain modes therein + specified, to make a will and other lawful dispositions. If a man, after + making his will, becomes deaf or dumb through ill health or any other + cause, it remains valid notwithstanding. + </p> + <p> + 4 A blind man cannot make a will, except by observing the forms introduced + by a law of our imperial father Justin. + </p> + <p> + 5 A will made by a prisoner while in captivity with the enemy is invalid, + even though he subsequently returns. One made, however, while he was in + his own state is valid, if he returns, by the law of postliminium; if he + dies in captivity it is valid by the lex Cornelia. + </p> + <p> + <a name="link2H_4_0041" id="link2H_4_0041"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIII. OF THE DISINHERISON OF CHILDREN + </h2> + <p> + The law, however, is not completely satisfied by the observance of the + rules hereinbefore explained. A testator who has a son in his power must + take care either to institute him heir, or to specially disinherit him, + for passing him over in silence avoids the will; and this rule is so + strict, that even if the son die in the lifetime of the father no heir can + take under the will, because of its original nullity. As regards daughters + and other descendants of either sex by the male line, the ancients did not + observe this rule in all its strictness; for if these persons were neither + instituted nor disinherited, the will was not avoided, but they were + entitled to come in with the instituted heirs, and to take a certain + portion of the inheritance. And these persons the ascendant was not + obliged to specially disinherit; he could disinherit them collectively by + a general clause. + </p> + <p> + 1 Special disinherison may be expressed in these terms—'Be Titius my + son disinherited,' or in these, 'Be my son disinherited,' without + inserting the name, supposing there is no other son. Children born after + the making of the will must also be either instituted heirs or + disinherited, and in this respect are similarly privileged, that if a son + or any other family heir, male or female, born after the making of the + will, be passed over in silence, the will, though originally valid, is + invalidated by the subsequent birth of the child, and so becomes + completely void. Consequently, if the woman from whom a child was expected + to have an abortive delivery, there is nothing to prevent the instituted + heirs from taking the inheritance. It was immaterial whether the female + family heirs born after the making of the will were disinherited specially + or by a general clause, but if the latter mode be adopted, some legacy + must be left them in order that they may not seem to have been passed over + merely through inadvertence: but male family heirs born after the making + of the will, sons and other lineal descendants, are held not to be + properly disinherited unless they are disinherited specially, thus: 'Be + any son that shall be born to me disinherited.' + </p> + <p> + 2 With children born after the making of the will are classed children who + succeed to the place of a family heir, and who thus, by an event analogous + to subsequent birth, become family heirs to an ancestor. For instance, if + a testator have a son, and by him a grandson or granddaughter in his + power, the son alone, being nearer in degree, has the right of a family + heir, although the grandchildren are in the testator's power equally with + him. But if the son die in the testator's lifetime, or is in some other + way released from his power, the grandson and granddaughter succeed to his + place, and thus, by a kind of subsequent birth, acquire the rights of + family heirs. To prevent this subsequent avoidance of one's will, + grandchildren by a son must be either instituted heirs or disinherited, + exactly as, to secure the original validity of a testament, a son must be + either instituted or specially disinherited; for if the son die in the + testator's lifetime, the grandson and granddaughter take his place, and + avoid the will just as if they were children born after its execution. And + this disinherison was first allowed by the lex Iunia Vallaea, which + explains the form which is to be used, and which resembles that employed + in disinheriting family heirs born after the making of a will. + </p> + <p> + 3 It is not necessary, by the civil law, to either institute or disinherit + emancipated children, because they are not family heirs. But the praetor + requires all, females as well as males, unless instituted, to be + disinherited, males specially, females collectively; and if they are + neither appointed heirs nor disinherited as described, the praetor + promises them possession of goods against the will. + </p> + <p> + 4 Adopted children, so long as they are in the power of their adoptive + father, are in precisely the same legal position as children born in + lawful wedlock; consequently they must be either instituted or + disinherited according to the rules stated for the disinherison of natural + children. When, however, they have been emancipated by their adoptive + father, they are no longer regarded as his children either by the civil + law or by the praetor's edict. Conversely, in relation to their natural + father, so long as they remain in the adoptive family they are strangers, + so that he need neither institute nor disinherit them: but when + emancipated by their adoptive father, they have the same rights in the + succession to their natural father as they would have had if it had been + he by whom they were emancipated. Such was the law introduced by our + predecessors. + </p> + <p> + 5 Deeming, however, that between the sexes, to each of which nature + assigns an equal share in perpetuating the race of man, there is in this + matter no real ground of distinction, and marking that, by the ancient + statute of the Twelve Tables, all were called equally to the succession on + the death of their ancestor intestate (which precedent the praetors also + seem to have subsequently followed), we have by our constitution + introduced a simple system of the same kind, applying uniformly to sons, + daughters, and other descendants by the male line, whether born before or + after the making of the will. This requires that all children, whether + family heirs or emancipated, shall be specially disinherited, and declares + that their pretermission shall have the effect of avoiding the will of + their parent, and depriving the instituted heirs of the inheritance, no + less than the pretermission of children who are family heirs or who have + been emancipated, whether already born, or born after, though conceived + before the making of the will. In respect of adoptive children we have + introduced a distinction, which is explained in our constitution on + adoptions. + </p> + <p> + 6 If a soldier engaged on actual service makes a testament without + specially disinheriting his children, whether born before or after the + making of the will, but simply passing over them in silence, though he + knows that he has children, it is provided by imperial constitutions that + his silent pretermission of them shall be equivalent to special + disinherison. + </p> + <p> + 7 A mother or maternal grandfather is not bound to institute her or his + children or grandchildren; they may simply omit them, for silence on the + part of a mother, or of a maternal grandfather or other ascendant, has the + same effect as actual disinherison by a father. For neither by the civil + law, nor by that part of the praetor's edict in which he promises children + who are passed over possession of goods against the will, is a mother + obliged to disinherit her son or daughter if she does not institute them + heirs, or a maternal grandfather to be equally precise with reference to + grandchildren by a daughter: though such children and grandchildren, if + omitted, have another remedy, which will shortly be explained. + </p> + <p> + <a name="link2H_4_0042" id="link2H_4_0042"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIV. OF THE INSTITUTION OF THE HEIR + </h2> + <p> + A man may institute as his heirs either free men or slaves, and either his + own slaves or those of another man. If he wished to institute his own + slave it was formerly necessary, according to the more common opinion, + that he should expressly give him his liberty in the will: but now it is + lawful, by our constitution, to institute one's own slave without this + express manumission—a change not due to any spirit of innovation, + but to a sense of equity, and one whose principle was approved by + Atilicinus, as it is stated by Seius in his books on Masurius Sabinus and + on Plautius. Among a testator's own slaves is to be reckoned one of whom + he is bare owner, the usufruct being vested in some other person. There + is, however, one case in which the institution of a slave by his mistress + is void, even though freedom be given him in the will, as is provided by a + constitution of the Emperors Severus and Antoninus in these terms: 'Reason + demands that no slave, accused of criminal intercourse with his mistress, + shall be capable of being manumitted, before his sentence is pronounced, + by the will of the woman who is accused of participating in his guilt: + accordingly if he be instituted heir by that mistress, the institution is + void.' Among 'other persons' slaves' is reckoned one in whom the testator + has a usufruct. + </p> + <p> + 1 If a slave is instituted heir by his own master, and continues in that + condition until his master's decease, he becomes by the will both free, + and necessary heir. But if the testator himself manumits him in his + lifetime, he may use his own discretion about acceptance; for he is not a + necessary heir, because, though he is named heir to the testament, it was + not by that testament that he became free. If he has been alienated, he + must have the order of his new master to accept, and then his master + becomes heir through him, while he personally becomes neither heir nor + free, even though his freedom was expressly given him in the testament, + because by alienating him his former master is presumed to have renounced + the intention of enfranchising him. When another person's slave is + instituted heir, if he continues in the same condition he must have the + order of his master to accept; if alienated by him in the testator's + lifetime, or after the testator's death but before acceptance, he must + have the order of the alienee to accept; finally, if manumitted in the + testator's lifetime, or after the testator's death but before acceptance, + he may accept or not at his own discretion. + </p> + <p> + 2 A slave who does not belong to the testator may be instituted heir even + after his master's decease, because slaves who belong to an inheritance + are capable of being instituted or made legatees; for an inheritance not + yet accepted represents not the future heir but the person deceased. + Similarly, the slave of a child conceived but not yet born may be + instituted heir. + </p> + <p> + 3 If a slave belonging to two or more joint owners, both or all of whom + are legally capable of being made heirs or legatees, is instituted heir by + a stranger, he acquires the inheritance for each and all of the joint + owners by whose orders he accepts it in proportion to the respective + shares in which they own him. + </p> + <p> + 4 A testator may institute either a single heir, or as many as he pleases. + </p> + <p> + 5 An inheritance is usually divided into twelve ounces, and is denoted in + the aggregate by the term as, and each fraction of this aggregate, ranging + from the ounce up to the as or pound, has its specific name, as follows: + sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12), semis (1/2), + septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6), deunx (11/12), + and as it is not necessary, however, that there should always be twelve + ounces, for for the purposes of testamentary distribution an as may + consist of as many ounces as the testator pleases; for instance, if a + testator institutes only a single heir, but declares that he is to be heir + ex semisse, or to one half of the inheritance, this half will really be + the whole, for no one can die partly testate and partly intestate, except + soldiers, in the carrying out of whose wills the intention is the only + thing regarded. Conversely, a testator may divide his inheritance into as + large a number of ounces as he pleases. + </p> + <p> + 6 If more heirs than one are instituted, it is unnecessary for the + testator to assign a specific share in the inheritance to each, unless he + intends that they shall not take in equal portions; for it is obvious that + if no shares are specified they divide the inheritance equally between + them. Supposing, however, that specific shares are assigned to all the + instituted heirs except one, who is left without any express share at all, + this last heir will be entitled to any fraction of the as which has not + been disposed of; and if there are two or more heirs to whom no specific + shares have been assigned, they will divide this unassigned fraction + equally between them. Finally, if the whole as has been assigned in + specific shares to some of the heirs, the one or more who have no specific + shares take half of the inheritance, while the other half is divided among + the rest according to the shares assigned to them; and it is immaterial + whether the heir who has no specified share come first or last in the + institution, or occupies some intermediate place; for such share is + presumed to be given to him as is not in some other way disposed of. + </p> + <p> + 7 Let us now see how the law stands if some part remains undisposed of, + and yet each heir has his share assigned to him—if, for instance + there are three heirs instituted, and each is assigned a quarter of the + inheritance. It is evident that in this case the part undisposed of will + go to them in proportion to the share each has assigned to him by the + will, and it will be exactly as if they had each been originally + instituted to a third. Conversely, if each heir is given so large a + fraction that the as will be exceeded, each must suffer a proportionate + abatement; thus if four heirs are instituted, and to each is assigned a + third of the inheritance, it will be the same as if each had been + originally instituted to a quarter. + </p> + <p> + 8 If more than twelve ounces are distributed among some of the heirs only, + one being left without a specific share, he will have what is wanting to + complete the second as; and the same will be done if more than twenty-four + ounces are distributed, leaving him shareless; but all these ideal sums + are afterwards reduced to the single as, whatever be the number of ounces + they comprise. + </p> + <p> + 9 The institution of the heir may be either absolute or conditional, but + no heir can be instituted from, or up to, some definite date, as, for + instance, in the following form—'be so and so my heir after five + years from my decease,' or 'after the calends of such a month,' or 'up to + and until such calends'; for a time limitation in a will is considered a + superfluity, and an heir instituted subject to such a time limitation is + treated as heir absolutely. + </p> + <p> + 10 If the institution of an heir, a legacy, a fiduciary bequest, or a + testamentary manumission is made to depend on an impossible condition, the + condition is deemed unwritten, and the disposition absolute. + </p> + <p> + 11 If an institution is made to depend on two or more conditions, + conjunctively expressed,—as, for instance, 'if this and that shall + be done'—all the conditions must be satisfied: if they are expressed + in the alternative, or disjunctively—as 'if this or that shall be + done'—it is enough if one of them alone is satisfied. + </p> + <p> + 12 A testator may institute as his heir a person whom he has never seen, + for instance, nephews who have been born abroad and are unknown to him: + for want of this knowledge does not invalidate the institution. + </p> + <p> + <a name="link2H_4_0043" id="link2H_4_0043"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XV. OF ORDINARY SUBSTITUTION + </h2> + <p> + A testator may institute his heirs, if he pleases, in two or more degrees, + as, for instance, in the following form: 'If A shall not be my heir, then + let B be my heir'; and in this way he can make as many substitutions as he + likes, naming in the last place one of his own slaves as necessary heir, + in default of all others taking. + </p> + <p> + 1 Several may be substituted in place of one, or one in place of several, + or to each heir may be substituted a new and distinct person, or, finally, + the instituted heirs may be substituted reciprocally in place of one + another. + </p> + <p> + 2 If heirs who are instituted in equal shares are reciprocally substituted + to one another, and the shares which they are to have in the substitution + are not specified, it is presumed (as was settled by a rescript of the + Emperor Pius) that the testator intended them to take the same shares in + the substitution as they took directly under the will. + </p> + <p> + 3 If a third person is substituted to one heir who himself is substituted + to his coheir, the Emperors Severus and Antoninus decided by rescript that + this third person is entitled to the shares of both without distinction. + </p> + <p> + 4 If a testator institutes another man's slave, supposing him to be an + independent person, and substitutes Maevius in his place to meet the case + of his not taking the inheritance, then, if the slave accepts by the order + of his master, Maevius is entitled to a half. For, when applied to a + person whom the testator knows to be in the power of another, the words + 'if he shall not be my heir' are taken to mean 'if he shall neither be + heir himself nor cause another to be heir'; but when applied to a person + whom the testator supposes to be independent, they mean 'if he shall not + acquire the inheritance either for himself, or for that person to whose + power he shall subsequently become subject,' and this was decided by + Tiberius Caesar in the case of his slave Parthenius. + </p> + <p> + <a name="link2H_4_0044" id="link2H_4_0044"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVI. OF PUPILLARY SUBSTITUTION + </h2> + <p> + To children below the age of puberty and in the power of the testator, not + only can such a substitute as we have described be appointed, that is, one + who shall take on their failing to inherit, but also one who shall be + their heir if, after inheriting, they die within the age of puberty; and + this may be done in the following terms, 'Be my son Titius my heir; and if + he does not become my heir, or, after becoming my heir, die before + becoming his own master (that is, before reaching puberty), then be Seius + my heir.' In which case, if the son fails to inherit, the substitute is + the heir of the testator; but if the son, after inheriting, dies within + the age of puberty, he is the heir of the son. For it is a rule of + customary law, that when our children are too young to make wills for + themselves, their parents may make them for them. + </p> + <p> + 1 The reason of this rule has induced us to assert in our Code a + constitution, providing that if a testator has children, grandchildren, or + greatgrandchildren who are lunatics or idiots, he may, after the analogy + of pupillary substitution, substitute certain definite persons to them, + whatever their sex or the nearness of their relationship to him, and even + though they have reached the age of puberty; provided always that on their + recovering their faculties such substitution shall at once become void, + exactly as pupillary substitution proper ceases to have any operation + after the pupil has reached puberty. + </p> + <p> + 2 Thus, in pupillary substitution effected in the form described, there + are, so to speak, two wills, the father's and the son's, just as if the + son had personally instituted an heir to himself; or rather, there is one + will dealing with two distinct matters, that is, with two distinct + inheritances. + </p> + <p> + 3 If a testator be apprehensive that, after his own death, his son, while + still a pupil, may be exposed to the danger of foul play, because another + person is openly substituted to him, he ought to make the ordinary + substitution openly, and in the earlier part of the testament, and write + the other substitution, wherein a man is named heir on the succession and + death of the pupil, separately on the lower part of the will; and this + lower part he should tie with a separate cord and fasten with a separate + seal, and direct in the earlier part of the will that it shall not be + opened in the lifetime of the son before he attains the age of puberty. Of + course a substitution to a son under the age of puberty is none the less + valid because it is a integral part of the very will in which the testator + has instituted him his heir, though such an open substitution may expose + the pupil to the danger of foul play. + </p> + <p> + 4 Not only when we leave our inheritance to children under the age of + puberty can we make such a substitution, that if they accept the + inheritance, and then die under that age, the substitute is their heir, + but we can do it when we disinherit them, so that whatever the pupil + acquires by way of inheritance, legacy or gift from his relatives or + friends, will pass to the substitute. What has been said of substitution + to children below the age of puberty, whether instituted or disinherited, + is true also of substitution to afterborn children. + </p> + <p> + 5 In no case, however, may a man make a will for his children unless he + makes one also for himself; for the will of the pupil is but a + complementary part of the father's own testament; accordingly, if the + latter is void, the former will be void also. + </p> + <p> + 6 Substitution may be made either to each child separately, or only to + such one of them as shall last die under the age of puberty. The first is + the proper plan, if the testator's intention is that none of them shall + die intestate: the second, if he wishes that, as among them, the order of + succession prescribed by the Twelve Tables shall be strictly preserved. + </p> + <p> + 7 The person substituted in the place of a child under the age of puberty + may be either named individually—for instance, Titius—or + generally prescribed, as by the words 'whoever shall be my heir'; in which + latter case, on the child dying under the age of puberty, those are called + to the inheritance by the substitution who have been instituted heirs and + have accepted, their shares in the substitution being proportionate to the + shares in which they succeeded the father. + </p> + <p> + 8 This kind of substitution may be made to males up to the age of + fourteen, and to females up to that of twelve years; when this age is once + passed, the substitution becomes void. + </p> + <p> + 9 To a stranger, or a child above the age of puberty whom a man has + instituted heir, he cannot appoint a substitute to succeed him if he take + and die within a certain time: he has only the power to bind him by a + trust to convey the inheritance to another either wholly or in part; the + law relating to which subject will be explained in its proper place. + </p> + <p> + <a name="link2H_4_0045" id="link2H_4_0045"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID + </h2> + <p> + A duly executed testament remains valid until either revoked or rescinded. + </p> + <p> + 1 A will is revoked when, though the civil condition of the testator + remains unaltered, the legal force of the will itself is destroyed, as + happens when, after making his will, a man adopts as his son either an + independent person, in which case the adoption is effected by imperial + decree, or a person already in power, when it is done through the agency + of the praetor according to our constitution. In both these cases the will + is revoked, precisely as it would be by the subsequent birth of a family + heir. + </p> + <p> + 2 Again, a subsequent will duly executed is a revocation of a prior will, + and it makes no difference whether an heir ever actually takes under it or + not; the only question is whether one might conceivably have done so. + Accordingly, whether the person instituted declines to be heir, or dies in + the lifetime of the testator, or after his death but before accepting the + inheritance, or is excluded by failure of the condition under which he was + instituted—in all the cases the testator dies intestate; for the + earlier will is revoked by the later one, and the later one is + inoperative, as no heir takes under it. + </p> + <p> + 3 If, after duly making one will, a man executes a second one which is + equally valid, the Emperors Severus and Antoninus decided by rescript that + the first is revoked by the second, even though the heir instituted in the + second is instituted to certain things only. The terms of this enactment + we have ordered to be inserted here, because it contains another + provision. 'The Emperors Severus and Antoninus to Cocceius Campanus. A + second will, although the heir named therein be instituted to certain + things only, is just as valid as if no mention of the things had been + made: but the heir is bound to content himself with the things given him, + or with such further portion of the inheritance as will make up the fourth + part to which he is entitled under the lex Falcidia, and (subject thereto) + to transfer the inheritance to the persons instituted in the earlier will: + for the words inserted in the later will undoubtedly contain the + expression of a wish that the earlier one shall remain valid.' This + accordingly is a mode in which a testament may be revoked. + </p> + <p> + 4 There is another event by which a will duly executed may be invalidated, + namely, the testator's undergoing a loss of status: how this may happen + was explained in the preceding Book. + </p> + <p> + 5 In this case the will may be said to be rescinded, though both those + that are revoked, and those that are not duly executed, may be said to + become or be rescinded; and similarly too those which are duly executed + but subsequently rescinded by loss of status may be said to be revoked. + However, as it is convenient that different grounds of invalidity should + have different names to distinguish them, we say that some wills are + unduly executed from the commencement, while others which are duly + executed are either revoked or rescinded. + </p> + <p> + 6 Wills, however, which, though duly executed, are subsequently rescinded + by the testator's undergoing loss of status are not altogether + inoperative: for if the seals of seven witnesses are attached, the + instituted heir is entitled to demand possession in accordance with the + will, if only the testator were a citizen of Rome and independent at the + time of his decease; but if the cause of the rescission was the testator's + subsequent loss of citizenship or of freedom, or his adoption, and he dies + an alien, or slave, or subject to his adoptive father's power, the + instituted heir is barred from demanding possession in accordance with the + will. + </p> + <p> + 7 The mere desire of a testator that a will which he has executed shall no + longer have any validity is not, by itself, sufficient to avoid it; so + that, even if he begins to make a later will, which he does not complete + because he either dies first, or changes his mind, the first will remains + good; it being provided in an address of the Emperor Pertinax to the + Senate that one testament which is duly executed is not revoked by a later + one which is not duly and completely executed; for an incomplete will is + undoubtedly null. + </p> + <p> + 8 In the same address the Emperor declared that he would accept no + inheritance to which he was made heir on account of a suit between the + testator and some third person, nor would he uphold a will in which he was + instituted in order to screen some legal defect in its execution, or + accept an inheritance to which he was instituted merely by word of mouth, + or take any testamentary benefit under a document defective in point of + law. And there are numerous rescripts of the Emperors Severus and + Antoninus to the same purpose: 'for though,' they say, 'the laws do not + bind us, yet we live in obedience to them.' + </p> + <p> + <a name="link2H_4_0046" id="link2H_4_0046"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVIII. OF AN UNDUTEOUS WILL + </h2> + <p> + Inasmuch as the disinherison or omission by parents of their children has + generally no good reason, those children who complain that they have been + wrongfully disinherited or passed over have been allowed to bring an + action impeaching the will as unduteous, under the pretext that the + testator was of unsound mind at the time of its execution. This does not + mean that he was really insane, but that the will, though legally + executed, bears no mark of that affection to which a child is entitled + from a parent: for if a testator is really insane, his will is void. + </p> + <p> + 1 Parents may impeach the wills of their children as unduteous, as well as + children those of their parents. Brothers and sisters of the testator are + by imperial constitutions preferred to infamous persons who are instituted + to their exclusion, so that it is in these cases only that they can bring + this action. Persons related to the testator in a further degree than as + brothers or sisters can in no case bring the action, or at any rate + succeed in it when brought. + </p> + <p> + 2 Children fully adopted, in accordance with the distinction drawn in our + constitution, can bring this action as well as natural children, but + neither can do so unless there is no other mode in which they can obtain + the property of the deceased: for those who can obtain the inheritance + wholly or in part by any other title are barred from attacking a will as + unduteous. Afterborn children too can employ this remedy, if they can by + no other means recover the inheritance. + </p> + <p> + 3 That they may bring the action must be understood to mean, that they may + bring it only if absolutely nothing has been left them by the testator in + his will: a restriction introduced by our constitution out of respect for + a father's natural rights. If, however, a part of the inheritance, however + small, or even a single thing is left them, the will cannot be impeached, + but the heir must, if necessary, make up what is given them to a fourth of + what they would have taken had the testator died intestate, even though + the will does not direct that this fourth is to be made up by the + assessment of an honest and reliable man. + </p> + <p> + 4 If a guardian accepts, under his own father's will, a legacy on behalf + of the pupil under his charge, the father having left nothing to him + personally, he is in no way debarred from impeaching his father's will as + unduteous on his own account. + </p> + <p> + 5 On the other hand, if he impeaches the will of his pupil's father on the + pupil's behalf, because nothing has been left to the latter, and is + defeated in the action, he does not lose a legacy given in the same will + to himself personally. + </p> + <p> + 6 Accordingly, that a person may be barred from the action impeaching the + will, it is requisite that he should have a fourth of what he would have + taken on intestacy, either as heir, legatee direct or fiduciary, donee in + contemplation of death, by gift from the testator in his lifetime (though + gift of this latter kind bars the action only if made under any of the + circumstances mentioned in our constitution) or in any of the other modes + stated in the imperial legislation. + </p> + <p> + 7 In what we have said of the fourth we must be understood to mean that + whether there be one person only, or more than one, who can impeach the + will as unduteous, onefourth of the whole inheritance may be given them, + to be divided among them all proportionately, that is to say, to each + person a fourth of what he would have had if the testator had died + intestate. + </p> + <p> + <a name="link2H_4_0047" id="link2H_4_0047"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS + </h2> + <p> + Heirs are of three kinds, that is to say, they are either necessary, + family heirs and necessary, or external. + </p> + <p> + 1 A necessary heir is a slave of the testator, whom he institutes as heir: + and he is so named because, willing or unwilling, and without any + alternative, he becomes free and necessary heir immediately on the + testator's decease. For when a man's affairs are embarrassed, it is common + for one of his slaves to be instituted in his will, either in the first + place, or as a substitute in the second or any later place, so that, if + the creditors are not paid in full, the heir may be insolvent rather than + the testator, and his property, rather than the testator's, may be sold by + the creditors and divided among them. To balance this disadvantage he has + this advantage, that his acquisitions after the testator's decease are for + his own sole benefit; and although the estate of the deceased is + insufficient to pay the creditors in full, the heir's subsequent + acquisitions are never on that account liable to a second sale. + </p> + <p> + 2 Heirs who are both family heirs and necessary are such as a son or a + daughter, a grandchild by a son, and further similar lineal descendants, + provided that they are in the ancestor's power at the time of his decease. + To make a grandson or granddaughter a family heir it is, however, not + sufficient for them to be in the grandfather's power at the moment of his + decease: it is further requisite that their own father shall, in the + lifetime of the grandfather, have ceased to be the family heir himself, + whether by death or by any other mode of release from power: for by this + event the grandson and granddaughter succeed to the place of their father. + They are called family heirs, because they are heirs of the house, and + even in the lifetime of the parent are to a certain extent deemed owners + of the inheritance: wherefore in intestacy the first right of succession + belongs to the children. They are called necessary heirs because they have + no alternative, but, willing or unwilling, both where there is a will and + where there is not, they become heirs. The praetor, however, permits them, + if they wish, to abstain from the inheritance, and leave the parent to + become insolvent rather than themselves. + </p> + <p> + 3 Those who are not subject to the testator's power are called external + heirs. Thus children of ours who are not in our power, if instituted heirs + by us, are deemed external heirs; and children instituted by their mother + belong to this class, because women never have children in their power. + Slaves instituted heirs by their masters, and manumitted subsequently to + the execution of the will, belong to the same class. + </p> + <p> + 4 It is necessary that external heirs should have testamentary capacity, + whether it is an independent person, or some one in his power, who is + instituted: and this capacity is required at two times; at the same time + of the making of the will, when, without it, the institution would be + void; and at the same time of the testator's decease, when, without it, + the institution would have no effect. Moreover, the instituted heir ought + to have this capacity also at the time when he accepts the inheritance, + whether he is instituted absolutely or subject to a condition; and indeed + it is especially at this time that his capacity to take ought to be looked + to. If, however, the instituted heir undergoes a loss of status in the + interval between the making of the will and the testator's decease, or the + satisfaction of the condition subject to which he was instituted, he is + not thereby prejudiced: for, as we said, there are only three points of + time which have to be regarded. Testamentary capacity thus does not mean + merely capacity to make a will; it also means capacity to take for + oneself, or for the father or master in whose power one is, under the will + of another person: and this latter kind of testamentary capacity is quite + independent of the capacity to make a will oneself. Accordingly, even + lunatics, deaf persons, afterborn children, infants, children in power, + and other persons' slaves are said to have testamentary capacity; for + though they cannot make a valid will, they can acquire for themselves or + for another under a will made by someone else. + </p> + <p> + 5 External heirs have the privilege of deliberating whether they will + accept or disclaim an inheritance. But if a person who is entitled to + disclaim interferes with the inheritance, or if one who has the privilege + of deliberation accepts it, he no longer has the power of relinquishing + it, unless he is a minor under the age of twentyfive years, for minors + obtain relief from the praetor when they incautiously accept a + disadvantageous inheritance, as well as when they take any other + injudicious step. + </p> + <p> + 6 It is, however, to be observed that the Emperor Hadrian once relieved + even a person who had attained his majority, when, after his accepting the + inheritance, a great debt, unknown at the time of acceptance, had come to + light. This was but the bestowal of an especial favour on a single + individual; the Emperor Gordian subsequently extended the privilege, but + only to soldiers, to whom it was granted as a class. We, however, in our + benevolence have placed this benefit within the reach of all our subjects, + and drafted a constitution as just as it is splendid, under which, if + heirs will but observe its terms, they can accept an inheritance without + being liable to creditors and legatees beyond the value of the property. + Thus so far as their liability is concerned there is no need for them to + deliberate on acceptance, unless they fail to observe the procedure of our + constitution, and prefer deliberation, by which they will remain liable to + all the risks of acceptance under the older law. + </p> + <p> + 7 An external heir, whether his right accrue to him under a will or under + the civil law of intestate succession, can take the inheritance either by + acting as heir, or by the mere intention to accept. By acting as heir is + mean, for instance, using things belonging to the inheritance as one's + own, or selling them, or cultivating or giving leases of the deceased's + estates, provided only one expresses in any way whatsoever, by deed or + word, one's intention to accept the inheritance, so long as one knows that + the person with whose property one is thus dealing has died testate or + intestate, and that one is that person's heir. To act as heir, in fact, is + to act as owner, and the ancients often used the term 'heir' as equivalent + to the term 'owner.' And just as the mere intention to accept makes an + external heir heir, so too the mere determination not to accept bars him + from the inheritance. Nothing prevents a person who is born deaf or dumb, + or who becomes so after birth, from acting as heir and thus acquiring the + inheritance, provided only he knows what he is doing. + </p> + <p> + <a name="link2H_4_0048" id="link2H_4_0048"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XX. OF LEGACIES + </h2> + <p> + Let us now examine legacies:—a kind of title which seems foreign to + the matter at hand, for we are expounding titles whereby aggregates of + rights are acquired; but as we have treated in full of wills and heirs + appointed by will, it was natural in close connexion therewith to consider + this mode of acquisition. + </p> + <p> + 1 Now a legacy is a kind of gift left by a person deceased; + </p> + <p> + 2 and formerly they were of four kinds, namely, legacy by vindication, by + condemnation, by permission, and by preception, to each of which a + definite form of words was appropriated by which it was known, and which + served to distinguish it from legacies of the other kinds. Solemn forms of + words of this sort, however, have been altogether abolished by imperial + constitutions; and we, desiring to give greater effect to the wishes of + deceased persons, and to interpret their expressions with reference rather + to those wishes than to their strict literal meaning, have issued a + constitution, composed after great reflection, enacting that in future + there shall be but one kind of legacy, and that, whatever be the terms in + which the bequest is couched, the legatee may sue for it no less by real + or hypothecary than by personal action. How carefully and wisely this + constitution is worded may be ascertained by a perusal of its contents. + </p> + <p> + 3 We have determined, however, to go even beyond this enactment; for, + observing that the ancients subjected legacies to strict rules, while the + rules which they applied to fiduciary bequests, as springing more directly + from the deceased person's wishes, were more liberal, we have deemed it + necessary to assimilate the former completely to the latter, so that any + future features in which legacies are inferior to fiduciary bequests may + be supplied to them from the latter, and the latter themselves may in + future possess any superiority which has hitherto been enjoyed by legacies + only. In order, however, to avoid perplexing students in their first + essays in the law by discussing these two forms of bequests together, we + have thought it worth while to treat them separately, dealing first with + legacies, and then with fiduciary bequests, so that the reader, having + first learnt their respective natures in a separate treatment, may, when + his legal education is more advanced, be able easily to comprehend their + treatment in combination. + </p> + <p> + 4 A legacy may be given not only of things belonging to the testator or + heir, but also of things belonging to a third person, the heir being bound + by the will to buy and deliver them to the legatee, or to give him their + value if the owner is unwilling to sell them. If the thing given be one of + those of which private ownership is impossible, such, for instance, as the + Campus Martius, a basilica, a church, or a thing devoted to public use, + not even its value can be claimed, for the legacy is void. In saying that + a thing belonging to a third person may be given as a legacy we must be + understood to mean that this may be done if the deceased knew that it + belonged to a third person, and not if he was ignorant of this: for + perhaps he would never have given the legacy if he had known that the + thing belonged neither to him nor to the heir, and there is a rescript of + the Emperor Pius to this effect. It is also the better opinion that the + plaintiff, that is the legatee, must prove that the deceased knew he was + giving as a legacy a thing which was not his own, rather than that the + heir must prove the contradictory: for the general rule of law is that the + burden of proof lies on the plaintiff. + </p> + <p> + 5 If the thing which a testator bequests is in pledge to a creditor, the + heir is obliged to redeem it, subject to the same distinction as has been + drawn with reference to a legacy of a thing not belonging to the testator; + that is to say, the heir is bound to redeem only if the deceased knew the + thing to be in pledge: and the Emperors Severus and Antoninus have decided + this by rescript. If, however, the deceased expresses his intention that + the legatee should redeem the thing himself, the heir is under no + obligation to do it for him. + </p> + <p> + 6 If a legacy is given of a thing belonging to another person, and the + legatee becomes its owner during the testator's lifetime by purchase, he + can obtain its value from the heir by action on the will: but if he gives + no consideration for it, that is to say, gets it by way of gift or by some + similar title, he cannot sue; for it is settled law that where a man has + already got a thing, giving no consideration in return, he cannot get its + value by a second title of the same kind. Accordingly, if a man is + entitled to claim a thing under each of two distinct wills, it is material + whether he gets the thing, or merely its value, under the earlier one: for + if he gets the thing itself, he cannot sue under the second will, because + he already has the thing without giving any consideration, whereas he has + a good right of action if he has merely got its value. + </p> + <p> + 7 A thing which does not yet exist, but will exist, may be validly + bequeathed:—for instance, the produce of such and such land, or the + child of such and such female slave. + </p> + <p> + 8 If the same thing is given as a legacy to two persons, whether jointly + or severally, and both claim it, each is entitled to only a half; if one + of them does not claim it, because either he does not care for it, or has + died in the testator's lifetime, or for some other reason, the whole goes + to his colegatee. A joint legacy is given in such words as the following: + 'I give and bequeath my slave Stichus to Titius and Seius': a several + legacy thus, 'I give and bequeath my slave Stichus to Titius: I give and + bequeath Stichus to Seius': and even if the testator says 'the same slave + Stichus' the legacy is still a several one. + </p> + <p> + 9 If land be bequeathed which belongs to some one other than the testator, + and the intended legatee, after purchasing the bare ownership therein, + obtains the usufruct without consideration, and then sues under the will, + Julian says that this action for the land is well grounded, because in a + real action for land a usufruct is regarded merely as a servitude; but it + is part of the duty of the judge to deduct the value of the usufruct from + the sum which he directs to be paid as the value of the land. + </p> + <p> + 10 A legacy by which something already belonging to the legatee is given + him is void, for what is his own already cannot become more his own than + it is: and even though he alienates it before the testator's death, + neither it nor its value can be claimed. + </p> + <p> + 11 If a testator bequeaths something belonging to him, but which he + thought belonged to another person, the legacy is good, for its validity + depends not on what he thought, but on the real facts of the case: and it + is clearly good if he thought it already belonged to the legatee, because + his expressed wish can thus be carried out. + </p> + <p> + 12 If, after making his will, a testator alienates property which he has + therein given away as a legacy, Celsus is of opinion that the legatee may + still claim it unless the testator's intention was thereby to revoke the + bequest, and there is a rescript of the Emperors Severus and Antoninus to + this effect, as well as another which decides that if, after making his + will, a testator pledges land which he had therein given as a legacy, the + part which has not been alienated can in any case be claimed, and the + alienated part as well if the alienator's intention was not to revoke the + legacy. + </p> + <p> + 13 If a man bequeaths to his debtor a discharge from his debt, the legacy + is good, and the testator's heir cannot sue either the debtor himself, or + his heir, or any one who occupies the position of heir to him, and the + debtor can even compel the testator's heir to formally release him. + Moreover, a testator can also forbid his heir to claim payment of a debt + before a certain time has elapsed. + </p> + <p> + 14 Contrariwise, if a debtor leaves his creditor a legacy of what he owes + him, the legacy is void, if it includes no more than the debt, for the + creditor is thus in no way benefited; but if the debtor unconditionally + bequeaths a sum of money which the creditor cannot claim until a definite + date has arrived or a condition has been satisfied, the legacy is good, + because it confers on the creditor a right to earlier payment. And, even + if the day arrives, or the condition is satisfied, during the testator's + lifetime, Papinian decides, and rightly, that the legacy is nevertheless a + good one, because it was good when first written; for the opinion that a + legacy becomes void, because something happens to deprive it of all + material effect, is now rejected. + </p> + <p> + 15 If a man leaves his wife a legacy of her dowry, the gift is good, + because the legacy is worth more than a mere right of action for the + dowry. If, however, he has never received the dowry which he bequeaths, + the Emperors Severus and Antoninus have decided by rescript that the + legacy is void, provided the general term 'dowry' is used, but good, if in + giving it to the wife a definite sum or thing is specified, or described + generally by reference to the dowry deed. + </p> + <p> + 16 If a thing bequeathed perishes through no act of the heir, the loss + falls on the legatee: thus if a slave belonging to another person, who is + given in this way, is manumitted through no act of the heir, the latter is + not bound. If, however, the slave belongs to the heir, who manumits him, + Julian says that he is bound, and it is immaterial whether he knew or not + that the slave had been bequeathed away from him. + </p> + <p> + 17 If a testator gives a legacy of female slaves along with their + offspring, the legatee can claim the latter even if the mothers are dead, + and so again if a legacy is given of ordinary slaves along with their + vicarii or subordinates, the latter can be claimed even if the former are + dead. But if the legacy be of a slave along with his peculium, and the + slave is dead, or has been manumitted or alienated, the legacy of the + peculium is extinguished; and similarly, if the legacy be of land with + everything upon it, or with all its instruments of tillage, by the + alienation of the land the legacy of the instruments of tillage is + extinguished. + </p> + <p> + 18 If a flock be given as a legacy, which is subsequently reduced to a + single sheep, this single survivor can be claimed; and Julian says that in + a legacy of a flock are comprised sheep which are added to it after the + making of the will, a flock being but one aggregate composed of distinct + members, just as a house is but one aggregate composed of distinct stones + built together. So if the legacy consists of a house, we hold that pillars + or marbles added to it after the making of the will pass under the + bequest. + </p> + <p> + 20 If a slave's peculium be given as a legacy, the legatee undoubtedly + profits by what is added to it, and is a loser by what is taken from it, + during the testator's lifetime. Whatever the slave acquires in the + interval between the testator's death and the acceptance of the + inheritance belongs, according to Julian, to the legatee, if that legatee + be the slave himself who is manumitted by the will, because a legacy of + this kind vests from the acceptance of the inheritance: but if the legatee + be a stranger, he is not entitled to such acquisitions, unless they are + made by means of the peculium itself. A slave manumitted by a will is not + entitled to his peculium unless it is expressly bequeathed to him, though, + if the master manumits him in his lifetime, it is enough if it be not + expressly taken from him, and to this effect the Emperors Severus and + Antoninus have decided by rescript: as also, that a legacy of his peculium + to a slave does not carry with it the right to sue for money which he has + expended on his master's account, and that a legacy of a peculium may be + inferred from directions in a will that a slave is to be free so soon as + he has made a statement of his accounts and made up any balance, which may + be against him, from his peculium. + </p> + <p> + 21 Incorporeal as well as corporeal things can be bequeathed: thus a man + can leave a legacy even of a debt which is owed to him, and the heir can + be compelled to transfer to the legatee his rights of action, unless the + testator has exacted payment in his lifetime, in which case the legacy is + extinguished. Again, such a legacy as the following is good: 'be my heir + bound to repair so and so's house, or to pay so and so's debts.' + </p> + <p> + 22 If a legacy be a general one, as of a slave or some other thing not + specifically determined, the legatee is entitled to choose what slave, or + what thing, he will have, unless the testator has expressed a contrary + intention. + </p> + <p> + 23 A legacy of selection, that is, when a testator directs the legatee to + select one from among his slaves, or any other class of things, was held + to be given subject to an implied condition that the legatee should make + the choice in person; so that if he died before doing so the legacy did + not pass to his heir. By our constitution, however, we have made an + improvement in this matter, and allowed the legatee's heir to exercise the + right of selection, although the legatee has not done so personally in his + lifetime; which enactment, through our careful attention to the subject, + contains the further provision, that if there are either several + colegatees to whom a right of selection has been bequeathed, and who + cannot agree in their choice, or several coheirs of a single legatee, who + differ through some wishing to choose this thing and others that, the + question shall be decided by fortune—the legacy not being + extinguished, which many of the jurists in an ungenerous spirit wished to + make the rule—; that is to say, that lots shall be drawn, and he on + whom the lot falls shall have a priority of choice over the rest. + </p> + <p> + 24 Three persons only can be legatees who have testamentary capacity, that + is, who are legally capable of taking under a will. + </p> + <p> + 25 Formerly it was not allowed to leave either legacies or fiduciary + bequests to uncertain persons, and even soldiers, as the Emperor Hadrian + decided by rescript, were unable to benefit uncertain persons in this way. + An uncertain person was held to be one of whom the testator had no certain + conception, as the legatee in the following form: 'Whoever bestows his + daughter in marriage on my son, do thou, my heir, give him such or such + land.' So too a legacy left to the first consuls designate after the + writing of the will was held to be given to an uncertain person, and many + others that might be instanced: and so it was held that freedom could not + be bequeathed to an uncertain person, because it was settled that slaves + ought to be enfranchised by name, and an uncertain person could not be + appointed guardian. But a legacy given with a certain demonstration, that + is, to an uncertain member of a certain class, was valid, for instance, + the following: 'Whoever of all my kindred now alive shall first marry my + daughter, do thou, my heir, give him such and such thing.' It was, + however, provided by imperial constitutions that legacies or fiduciary + bequests left to uncertain persons and paid by mistake could not be + recovered back. + </p> + <p> + 26 An afterborn stranger again could not take a legacy; an afterborn + stranger being one who on his birth will not be a family heir to the + testator; thus a grandson by an emancipated son was held to be an + afterborn stranger to his grandfather. + </p> + <p> + 27 These parts of the law, however, have not been left without due + alteration, a constitution having been inserted in our Code by which we + have in these respects amended the rules relating to legacies and + fiduciary bequests no less than to inheritances, as will be made clear by + a perusal of the enactment, which, however, still maintains the old rule + that an uncertain person cannot be appointed guardian: for when a testator + is appointing a guardian for his issue, he ought to be quite clear as to + the person and character of the party he selects. + </p> + <p> + 28 An afterborn stranger could and still can be instituted heir, unless + conceived of a woman who cannot by law be a man's wife. + </p> + <p> + 29 If a testator makes a mistake in any of the names of the legatee, the + legacy is nevertheless valid provided there is no doubt as to the person + he intended, and the same rule is very properly observed as to heirs as + well as legatees; for names are used only to distinguish persons, and if + the person can be ascertained in other ways a mistake in the name is + immaterial. + </p> + <p> + 30 Closely akin to this rule is another, namely, that an erroneous + description of the thing bequeathed does not invalidate the bequest; for + instance, if a testator says, 'I give and bequeath Stichus my born slave,' + the legacy is good, if it quite clear who is meant by Stichus, even though + it turn out that he was not born the testator's slave, but was purchased + by him. Similarly, if he describe Stichus as 'the slave I bought from + Seius,' whereas in fact he bought him from some one else, the legacy is + good, if it is clear what slave he intended to give. + </p> + <p> + 31 Still less is a legacy invalidated from a wrong motive being assigned + by the testator for giving it: if, for instance, he says, 'I give and + bequeath Stichus to Titius, because he looked after my affairs while I was + away,' or 'because I was acquitted on a capital charge through his + undertaking my defence,' the legacy is still good, although in point of + fact Titius never did look after the testator's affairs, or never did, + through his advocacy, procure his acquittal. But the law is different if + the testator expresses his motive in the guise of a condition, as: 'I give + and bequeath such and such land to Titius, if he has looked after my + affairs.' 32 It is questioned whether a legacy to a slave of the heir is + valid. It is clear that such a legacy is void if given unconditionally, + even though the slave ceases to belong to the heir during the testator's + lifetime: for a legacy which would be void if the testator died + immediately after making his will ought not to become valid by the simple + fact of the testator's living longer. Such a legacy, however, is good if + given subject to a condition, the question then being, whether at the + vesting of the legacy the slave has ceased to belong to the heir. + </p> + <p> + 33 On the other hand, there is no doubt that even an absolute legacy to + the master of a slave who is instituted heir is good: for, even supposing + that the testator dies immediately after making the will, the right to the + legacy does not necessarily belong to the person who is heir; for the + inheritance and the legacy are separable, and a different person from the + legatee may become heir through the slave; as happens if, before the slave + accepts the inheritance at his master's bidding, he is conveyed to another + person, or is manumitted and thus becomes heir himself; in both of which + cases the legacy is valid. But if he remains in the same condition, and + accepts at his master's bidding, the legacy is extinguished. + </p> + <p> + 34 A legacy given before an heir was appointed was formerly void, because + a will derives its operation from the appointment of an heir, and + accordingly such appointment is deemed the beginning and foundation of the + whole testament, and for the same reason a slave could not be enfranchised + before an heir was appointed. Yet even the old lawyers themselves + disapproved of sacrificing the real intentions of the testator by too + strictly following the order of the writing: and we accordingly have + deemed these rules unreasonable, and amended them by our constitution, + which permits a legacy, and much more freedom, which is always more + favoured, to be given before the appointment of an heir, or in the middle + of the appointments, if there are several. + </p> + <p> + 35 Again, a legacy to take effect after the death of the heir or legatee, + as in the form: 'After my heir's death I give and bequeath,' was formerly + void, as also was one to take effect on the day preceding the death of the + heir or legatee. This too, however, we have corrected, by making such + legacies as valid as they would be were they fiduciary bequests, lest in + this point the latter should be found to have some superiority over the + former. + </p> + <p> + 36 Formerly too the gift, revocation, and transference of legacies by way + of penalty was void. A penal legacy is one given in order to coerce the + heir into doing or not doing something; for instance, the following: 'If + my heir gives his daughter in marriage to Titius,' or, conversely, 'if he + does not give her in marriage to Titius, let him pay ten aurei to Seius'; + or again, 'if my heir parts with my slave Stichus,' or, conversely, 'if he + does not part with him, let him pay ten aurei to Titius.' And so strictly + was this rule observed, that it is declared in a large number of imperial + constitutions that even the Emperor will accept no legacy by which a + penalty is imposed on some other person: and such legacies were void even + when given by a soldier's will, in which as a rule so much trouble was + taken to carry out exactly the testator's wishes. Moreover, Sabinus was of + opinion that a penal appointment of a coheir was void, as exemplified in + the following: 'Be Titius my heir: if Titius gives his daughter in + marriage to Seius, be Seius my heir also'; the ground of the invalidity + being that it made no difference in what way Titius was constrained, + whether by a legacy being left away from him, or by some one being + appointed coheir. Of these refinements, however, we disapproved, and have + consequently enacted generally that bequests, even though given, revoked, + or transferred in order to penalize the heir, shall be treated exactly + like other legacies, except where the event on which the penal legacy is + contingent is either impossible, illegal, or immoral: for such + testamentary dispositions as these the opinion of my times will not + permit. + </p> + <p> + <a name="link2H_4_0049" id="link2H_4_0049"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES + </h2> + <p> + Legacies may be revoked either in a later clause of the will or by + codicils, and the revocation may be made either in words contrary to those + of the gift, as the gift thus 'I give and bequeath,' the revocation thus + 'I do not give and bequeath,' or in words not contrary, that is to say, in + any words whatsoever. + </p> + <p> + 1 A legacy may also be transferred from one person to another, as thus: 'I + give and bequeath to Seius the slave Stichus whom I. bequeathed to + Titius,' and this may be done either by a later clause of the will or by + codicils; the result being that the legacy is taken away from Titius and + simultaneously given to Seius. + </p> + <p> + <a name="link2H_4_0050" id="link2H_4_0050"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXII. OF THE LEX FALCIDIA + </h2> + <p> + We have finally to consider the lex Falcidia, the most recent enactment + limiting the amount which can be given in legacies. The statute of the + Twelve Tables had conferred complete liberty of bequest on testators, by + which they were enabled to give away their whole patrimony in legacies, + that statute having enacted: 'let a man's testamentary disposition of his + property be regarded as valid.' This complete liberty of bequest, however, + it was thought proper to limit in the interest of testators themselves, + for intestacy was becoming common through the refusal of instituted heirs + to accept inheritances from which they received little or no advantage at + all. The lex Furia and the lex Voconia were enactments designed to remedy + the evil, but as both were found inadequate to the purpose, the lex + Falcidia was finally passed, providing that no testator should be allowed + to dispose of more than three-quarters of his property in legacies, or in + other words, that whether there was a single heir instituted, or two or + more, he or they should always be entitled to at least a quarter of the + inheritance. + </p> + <p> + 1 If two heirs, say Titius and Seius, are instituted, and Titius's share + of the inheritance is either wholly exhausted in legacies specifically + charged thereon, or burdened beyond the limit fixed by the statute, while + no legacies at all are charged on Seius, or at any rate legacies which + exhaust it only to the extent of one half or less, the question arose + whether, as Seius has at least a quarter of the whole inheritance, Titius + was or was not entitled to retain anything out of the legacies which had + been charged upon him: and it was settled that he could keep an entire + fourth of his share of the inheritance; for the calculation of the lex + Falcidia is to be applied separately to the share of each of several heirs + in the inheritance. + </p> + <p> + 2 The amount of the property upon which the calculation is brought to bear + is its amount at the moment of the testator's decease. Thus, to illustrate + by an example, a testator who is worth a hundred aurei at his decease + gives the whole hundred away in legacies: here, if before the heir + accepts, the inheritance is so much augmented through slaves who belong to + it, or by births of children from such of them as are females, or by the + young of cattle that, even after paying away a hundred aurei in legacies, + the heir will still have a clear fourth of the inheritance, the legatee's + position is in no way improved, but a quarter of the sum given in legacies + may still be deducted for himself by the heir. Conversely, if only + seventyfive aurei are given in legacies, and before acceptance the + inheritance is so much diminished in value, say by fire, shipwreck, or + death of slaves, that no more or even less than seventyfive aurei are + left, the legatees can claim payment of their legacies in full. In this + latter case, however, the heir is not prejudiced, for he is quite free to + refused the inheritance: consequently, the legatees must come to terms + with him, and content themselves with a portion of their legacies, lest + they lose all through no one's taking under the will. + </p> + <p> + 3 When the calculation of the lex Falcidia is made, the testator's debts + and funeral expenses are first deducted, and the value of slaves whom he + has manumitted in the will or directed to be manumitted is not reckoned as + part of the inheritance; the residue is then divided so as to leave the + heirs a clear fourth, the other three quarters being distributed among the + legatees in proportion to the amount of the legacies given them + respectively in the will. Thus, if we suppose four hundred aurei to have + been given in legacies, and the value of the inheritance, out of which + they are to be paid, to be exactly that sum, each legatee must have his + legacy abated by onefourth; if three hundred and fifty have been given in + legacies, each legacy will be diminished by one-eighth; if five hundred, + first a fifth, then a fourth, must be deducted: for when the amount given + in legacies actually exceeds the sum of the inheritance, there must be + struck off first the excess, and then the share which the heir is entitled + to retain. + </p> + <p> + <a name="link2H_4_0051" id="link2H_4_0051"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIII. OF TRUST INHERITANCES + </h2> + <p> + We now proceed to fiduciary bequests or trusts; and let us begin with + trust inheritances. + </p> + <p> + 1 Legacies or inheritances given by trust had originally no binding legal + force, because no one could be compelled against his will to do what he + was merely asked to do. As there were certain classes of persons to whom + testators were unable to leave inheritances or legacies, when they wished + to effect these objects they used to trust to the good faith of some one + who had this kind of testamentary capacity, and whom they asked to give + the inheritance, or the legacy, to the intended beneficiary; hence the + name 'trusts,' because they were not enforced by legal obligation, but + only by the transferor's sense of honesty. Subsequently the Emperor + Augustus, either out of regard for various favourites of his own, or + because the request was said to have been made in the name of the + Emperor's safety, or moved thereto by individual and glaring cases of + perfidy, commanded the consuls in certain cases to enforce the duty by + their authority. And this being deemed equitable, and being approved by + the people, there was gradually developed a new and permanent + jurisdiction, and trusts became so popular that soon a special praetor was + appointed to hear suits relating to them, who was called the trust + praetor. + </p> + <p> + 2 The first requisite is an heir directly instituted, in trust to transfer + the inheritance to another, for the will is void without an instituted + heir in the first instance. Accordingly, when a testator has written: + 'Lucius Titius, be thou my heir,' he may add: 'I request you, Lucius + Titius, as soon as you can accept my inheritance, to convey and transfer + it to Gaius Seius'; or he can request him to transfer a part. So a trust + may be either absolute or conditional, and to be performed either + immediately or on a specified future day. + </p> + <p> + 3 After the transfer of the inheritance the transferor continues heir, the + transferee being sometimes regarded as quasi-heir, sometimes as + quasi-legatee. + </p> + <p> + 4 But during the reign of Nero, in the consulate of Trebellius Maximus and + Annaeus Seneca, a senatusconsult was passed providing that, when an + inheritance is transferred in pursuance of a trust, all the actions which + the civil law allows to be brought by or against the heir shall be + maintainable by and against the transferee: and after this enactment the + praetor used to give indirect or fictitious actions to and against the + transferee as quasiheir. + </p> + <p> + 5 However, as the instituted heirs, when (as so often was the case) they + were requested to transfer the whole or nearly the whole of an + inheritance, declined to accept for what was no benefit, or at most a very + slight benefit, to themselves, and this caused a failure of the trusts, + afterwards, in the time of the Emperor Vespasian, and during the consulate + of Pegasus and Pusio, the senate decreed that an heir who was requested to + transfer the inheritance should have the same right to retain a fourth + thereof as the lex Falcidia gives to an heir charged with the payment of + legacies, and gave a similar right of retaining the fourth of any specific + thing left in trust. After the passing of this senatusconsult the heir, + wherever it came into operation, was sole administrator, and the + transferee of the residue was in the position of a partiary legatee, that + is, of a legatee of a certain specified portion of the estate under the + kind of bequest called participation, so that the stipulations which had + been usual between an heir and a partiary legatee were now entered into by + the heir and transferee, in order to secure a rateable division of the + gains and losses arising out of the inheritance. + </p> + <p> + 6 Accordingly, after this, if no more than threefourths of the inheritance + was in trust to be transferred, then the SC. Trebellianum governed the + transfer, and both were liable to be sued for the debts of the inheritance + in rateable portions, the heir by civil law, the transferee, as quasiheir, + by that enactment. But if more than threefourths, or even the whole was + left in trust to be transferred, the SC. Pegasianum came into operation, + and when once the heir had accepted, of course voluntarily, he was the + sole administrator whether he retained onefourth or declined to retain it: + but if he did, he entered into stipulations with the transferee similar to + those usual between the heir and a partiary legatee, while if he did not, + but transferred the whole inheritance, he covenanted with him as + quasi-purchaser. If an instituted heir refuse to accept an inheritance + from a suspicion that the liabilities exceed the assets, it is provided by + the SC. Pegasianum that, on the petition of the person to whom he is + requested to transfer, he shall be ordered by the praetor to accept and + transfer it, whereupon the transferee shall be as capable of suing and + being sued as the transferee under the SC. Trebellianum. In this case no + stipulations are necessary, because by a concurrent operation of the two + senatusconsults both the transferor is protected, and all actions relating + to the inheritance pass to and against the transferee. + </p> + <p> + 7 As, however, the covenants which had become necessary through the SC. + Pegasianum were disliked even by the older lawyers, and are in certain + cases considered injurious by the eminent jurist Papinian, and it being + our desire that our statute book should be clear and simple rather than + complicated, we have, after placing these two senatusconsults side by side + and examining their points of resemblance and difference, resolved to + repeal the SC. Pegasianum, as the later enactment, and to give exclusive + authority to the SC. Trebellianum, under which in future all trust + inheritances are to be transferred, whether the testator has freely given + his heir a fourth of the property, or more or less, or even nothing at + all: provided always, that when the heir has either nothing or less than a + fourth, it shall be lawful for him, under our authority expressed in this + statute, to retain a fourth, or to recover it by action if he has already + paid it over, the heir and the transferee being capable both of suing and + being sued in proportion to their shares in the inheritance, after the + analogy of the SC. Trebellianum; and provided also, that if the heir + voluntarily transfers the whole inheritance, the transferee shall be able + to sue and be sued on all actions relating to the inheritance whatsoever. + Moreover, we have transferred to the SC. Trebellianum the leading + provision of the SC. Pegasianum, whereby it was enacted that when an + instituted heir refused to accept an inheritance offered to him, he could + be compelled to accept and transfer the whole inheritance if the intended + transferee so desired, and that all actions should pass to and against the + latter: so that it is under the SC. Trebellianum alone that the heir, if + unwilling to accept, is now obliged to do so, if the intended transferee + desire the inheritance, though to him personally no loss or profit can + accrue under the transaction. + </p> + <p> + 8 It makes no difference whether it is a sole or part heir who is under a + trust to another, or whether what he is requested to transfer is the whole + or only a part of that to which he is heir; for we direct that the same + rules shall be applied in the case of a part being transferred as we have + said are observed in the transference of a whole inheritance. + </p> + <p> + 9 If the request addressed to the heir is to transfer the inheritance + after deducting or reserving some specific thing which is equal in value + to a fourth part thereof, such as land or anything else, the conveyance + will be made under the SC. Trebellianum, exactly as if he had been asked + after retaining a fourth part of the inheritance to transfer the residue. + There is, however, some difference between the two cases; for in the + first, where the inheritance is transferred after deducting or reserving + some specific thing, the senatusconsult has the effect of making the + transferee the only person who can sue or be sued in respect of the + inheritance, and the part retained by the heir is free from all + encumbrances, exactly as if he had received it under a legacy; whereas in + the second, where the heir, after retaining a fourth part of the + inheritance, transfers the rest as requested, the actions are divided, the + transferee being able to sue and be sued in respect of threefourths of the + inheritance, and the heir in respect of the rest. Moreover, if the heir is + requested to transfer the inheritance after deducting or reserving only a + single specific thing, which, however, in value is equivalent to the + greater part of the inheritance, the transferee is still the only person + who can sue and be sued, so that he ought well to weigh whether it is + worth his while to take it: and the case is precisely the same, whether + what the heir is directed to deduct or reserve before transferring is two + or more specific things, or a definite sum which in fact is equivalent to + a fourth or even the greater part of the inheritance. What we have said of + a sole heir is equally true of one who is instituted only to a part. + </p> + <p> + 10 Moreover, a man about to die intestate can charge the person to whom he + knows his property will go by either the civil or praetorian law to + transfer to some one else either his whole inheritance, or a part of it, + or some specific thing, such as land, a slave, or money: but legacies have + no validity unless given by will. + </p> + <p> + 11 The transferee may himself be charged by the deceased with a trust to + transfer to some other person either the whole or a part of what he + receives, or even something different. + </p> + <p> + 12 As has been already observed, trusts in their origin depended solely on + the good faith of the heir, from which early history they derived both + their name and their character: and it was for that reason that the + Emperor Augustus made them legally binding obligations. And we, in our + desire to surpass that prince, have recently made a constitution, + suggested by a matter brought before us by the eminent Tribonian, quaestor + of our sacred palace, by which it is enacted, that if a testator charges + his heir with a trust to transfer the whole inheritance or some specific + thing, and the trust cannot be proved by writing or by the evidence of + five witnesses—five being, as is known, the number required by law + for the proof of oral trusts—through there having been fewer + witnesses than five, or even none at all, and if the heir, whether it be + his own son or some one else whom the testator has chosen to trust, and by + whom he desired the transfer to be made, perfidiously refuses to execute + the trust, and in fact denies that he was ever charged with it, the + alleged beneficiary, having previously sworn to his own good faith, may + put the heir upon his oath: whereupon the heir may be compelled to swear + that no trust was ever charged upon him, or, in default, to transfer the + inheritance or the specific thing, as the case may be, in order that the + last wishes of the testator, the fulfilment of which he has left to the + honour of his heir, may not be defeated. We have also prescribed the same + procedure where the person charged with a trust is a legatee or already + himself a transferee under a prior trust. Finally, if the person charged + admits the trust, but tries to shelter himself behind legal + technicalities, he may most certainly be compelled to perform his + obligation. + </p> + <p> + <a name="link2H_4_0052" id="link2H_4_0052"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS + </h2> + <p> + Single things can be left in trust as well as inheritances; land, for + instance, slaves, clothing, gold, silver, and coined money; and the trust + may be imposed either on an heir or on a legatee, although a legatee + cannot be charged with a legacy. + </p> + <p> + 1 Not only the testator's property, but that of an heir, or legatee, or + person already benefited by a trust, or any one else may be given by a + trust. Thus a legatee, or a person in whose favour the testator has + already created a trust, may be asked to transfer either a thing left to + him, or any other thing belonging to himself or a stranger, provided + always that he is not charged with a trust to transfer more than he takes + by the will, for in respect of such excess the trust would be void. When a + person is charged by a trust to transfer a thing belonging to some one + else, he must either purchase and deliver it, or pay its value. + </p> + <p> + 2 Liberty can be left to a slave by a trust charging an heir, legatee, or + other person already benefited by a trust of the testator's, with his + manumission, and it makes no difference whether the slave is the property + of the testator, of the heir, of the legatee or of a stranger: for a + stranger's slave must be purchased and manumitted; and on his master's + refusal to sell (which refusal is allowable only if the master has taken + nothing under the will) the trust to enfranchise the slave is not + extinguished, as though its execution had become impossible, but its + execution is merely postponed; because it may become possible to free him + at some future time, whenever an opportunity of purchasing him presents + itself. A trust of manumission makes the slave the freedman, not of the + testator, though he may have been his owner, but of the manumitter, + whereas a direct bequest of liberty makes a slave the freedman of the + testator, whence too he is called 'orcinus.' But a direct bequest of + liberty can be made only to a slave who belongs to the testator both at + the time of making his will and at that of his decease; and by a direct + bequest of liberty is to be understood the case where the testator desires + him to become free in virtue, as it were, of his own testament alone, and + so does not ask some one else to manumit him. + </p> + <p> + 3 The words most commonly used to create a trust are I beg, I. request, I + wish, I commission, I trust to your good faith; and they are just as + binding when used separately as when united. + </p> + <p> + <a name="link2H_4_0053" id="link2H_4_0053"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXV. OF CODICILS + </h2> + <p> + It is certain that codicils were not in use before the time of Augustus, + for Lucius Lentulus, who was also the originator of trusts, was the first + to introduce them, in the following manner. Being on the point of death in + Africa, he executed codicils, confirmed by his will, by which he begged + Augustus to do something for him as a trust; and on the Emperor's + fulfilling his wishes, other persons followed the precedent and discharged + trusts created in this manner, and the daughter of Lentulus paid legacies + which could not have been legally claimed from her. It is said that + Augustus called a council of certain jurists, among them Trebatius, who at + that time enjoyed the highest reputation, and asked them whether the new + usage could be sanctioned, or did not rather run counter to the received + principles of law, and that Trebatius recommended their admission, + remarking 'how convenient and even necessary the practice was to + citizens,' owing to the length of the journeys which were taken in those + early days, and upon which a man might often be able to make codicils when + he could not make a will. And subsequently, after codicils had been made + by Labeo, nobody doubted their complete validity. + </p> + <p> + 1 Not only can codicils be made after a will, but a man dying intestate + can create trusts by codicils, though Papinian says that codicils executed + before a will are invalid unless confirmed by a later express declaration + that they shall be binding. But a rescript of the Emperors Severus and + Antoninus decides that the performance of a trust imposed by codicils + written before a will may in any case be demanded, if it appears that the + testator had not abandoned the intention expressed in them. + </p> + <p> + 2 An inheritance can neither be given nor taken away by codicils, nor, + accordingly, can a child be disinherited in this way: for, if it were + otherwise, the law of wills and of codicils would be confounded. By this + it is meant that an inheritance cannot directly be given or taken away by + codicils; for indirectly, by means of a trust, one can very well be given + in this manner. Nor again can a condition be imposed on an instituted + heir, or a direct substitution be effected, by codicils. + </p> + <p> + 3 A man can make any number of codicils, and no solemnities are required + for their execution. + </p> + <p> + <a name="link2H_4_0054" id="link2H_4_0054"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + BOOK III. + </h2> + <p> + <a name="link2H_4_0055" id="link2H_4_0055"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY + </h2> + <p> + A man is said to die intestate who either has made no will at all, or has + made one which is invalid, or if one which has been duly executed has been + subsequently revoked, or rescinded, or finally, if no one accepts as heir + under the testament. + </p> + <p> + 1 The inheritances of intestate persons go first, by the statute of the + Twelve Tables, to family heirs; + </p> + <p> + 2 and family heirs, as we said above, are those who were in the power of + the deceased at the time of his death, such as a son or daughter, a + grandchild by a son, or a greatgrandchild by such grandchild if a male, + and this whether the relationship be natural or adoptive. Among them must + also be reckoned children who, though not born in lawful wedlock, have + been inscribed members of the curia according to the tenor of the imperial + constitutions relating to them, and thus acquire the rights of family + heirs, or who come within the terms of our constitutions by which we have + enacted that, if any one shall cohabit with a woman whom he might have + lawfully married, but for whom he did not at first feel marital affection, + and shall after begetting children by her begin to feel such affection and + formally marry her, and then have by her sons or daughters, not only shall + those be lawful children and in their father's power who were born after + the settlement of the dowry, but also those born before, to whom in + reality the later born ones owed their legitimacy; and we have provided + that this rule shall hold even though no children are born after the + execution of the dowry deed, or if, having been born, they are dead. It is + to be observed, however, that a grandchild or greatgrandchild is not a + family heir, unless the person in the preceding degree has ceased to be in + the power of the parent, either through having died, or by some other + means, such as emancipation; for if at the time of a man's decease a son + is in his power, a grandson by that son cannot be a family heir, and the + case is exactly the same with more remote descendants. Children too who + are born after the ancestor's death, and who would have been in his power + had they been born during his lifetime, are family heirs. + </p> + <p> + 3 Family heirs succeed even though ignorant of their title, and they can + take upon an intestacy even though insane, because whenever the law vests + property in a person, even when he is ignorant of his title, it equally + vests it in him if insane. Thus, immediately on the parent's death, the + ownership is as it were continued without any break, so that pupils who + are family heirs do not require their guardian's sanction in order to + succeed, for inheritances go to such heirs even though ignorant of their + title; and similarly an insane family heir does not require his curator's + consent in order to succeed, but takes by operation of law. + </p> + <p> + 4 Sometimes, however, a family heir succeeds in this way to his parent, + even though not in the latter's power at the time of his decease, as where + a person returns from captivity after his father's death, this being the + effect of the law of postliminium. + </p> + <p> + 5 And sometimes conversely a man is not a family heir although in the + power of the deceased at the time of his death, as where the latter after + his death is adjudged to have been guilty of treason, and his memory is + thereby branded with infamy: such a person is unable to have a family + heir, for his property is confiscated to the treasury, though one who + would otherwise have succeeded him may be said to have in law been a + family heir, and ceased to be such. + </p> + <p> + 6 Where there is a son or daughter, and a grandchild by another son, these + are called together to the inheritance, nor does the nearer in degree + exclude the more remote, for it seems just that grandchildren should + represent their father and take his place in the succession. Similarly a + grandchild by a son, and a greatgrandchild by a grandson are called to the + inheritance together. And as it was thought just that grandchildren and + greatgrandchildren should represent their father, it seemed consistent + that the inheritance should be divided by the number of stems, and not by + the number of individuals, so that a son should take onehalf, and + grandchildren by another son the other: or, if two sons left children, + that a single grandchild, or two grandchildren by one son, should take + onehalf, and three or four grandchildren by the other son the other. + </p> + <p> + 7 In ascertaining whether, in any particular case, so and so is a family + heir, one ought to regard only that moment of time at which it first was + certain that the deceased died intestate, including hereunder the case of + no one's accepting under the will. For instance, if a son be disinherited + and a stranger instituted heir, and the son die after the decease of his + father, but before it is certain that the heir instituted in the will + either will not or cannot take the inheritance, a grandson will take as + family heir to his grandfather, because he is the only descendant in + existence when first it is certain that the ancestor died intestate; and + of this there can be no doubt. + </p> + <p> + 8 A grandson born after, though conceived before, his grandfather's death, + whose father dies in the interval between the grandfather's decease and + desertion of the latter's will through failure of the instituted heir to + take, is family heir to his grandfather; though it is obvious that if + (other circumstances remaining the same) he is conceived as well as born + after the grandfather's decease, he is no family heir, because he was + never connected with his grandfather by any tie of relationship; exactly + as a person adopted by an emancipated son is not among the children of, + and therefore cannot be family heir to, the latter's father. And such + persons, not being children in relation to the inheritance, cannot apply + either for possession of the goods of the deceased as next of kin. So much + for family heirs. + </p> + <p> + 9 As to emancipated children, they have, by the civil law, no rights to + succeed to an intestate; for having ceased to be in the power of their + parent, they are not family heirs, nor are they called by any other title + in the statute of the Twelve Tables. The praetor, however, following + natural equity, gives them possession of the goods of the deceased merely + as children, exactly as if they had been in his power at the time of his + death, and this whether they stand alone or whether there are family heirs + as well. Consequently, if a man die leaving two children, one emancipated, + and the other in his power at the time of his decease, the latter is sole + heir by the civil law, as being the only family heir; but through the + former's being admitted to part of the inheritance by the indulgence of + the praetor, the family heir becomes heir to part of the inheritance only. + </p> + <p> + 10 Emancipated children, however, who have given themselves in adoption + are not thus admitted, under the title of children, to share the property + of their natural father, if at the time of his decease they are in their + adoptive family; though it is otherwise if they are emancipated during his + lifetime by their adoptive father, for then they are admitted as if they + had been emancipated by him and had never been in an adoptive family, + while, conversely, as regards their adoptive father, they are henceforth + regarded as strangers. If, however, they are emancipated by the adoptive + after the death of the natural father, as regards the former they are + strangers all the same, and yet do not acquire the rank of children as + regards succession to the property of the latter; the reason of this rule + being the injustice of putting it within the power of an adoptive father + to determine to whom the property of the natural father shall belong, + whether to his children or to his agnates. + </p> + <p> + 11 Adoptive are thus not so well off as natural children in respect of + rights of succession: for by the indulgence of the praetor the latter + retain their rank as children even after emancipation, although they lose + it by the civil law; while the former, if emancipated, are not assisted + even by the praetor. And there is nothing wrong in their being thus + differently treated, because civil changes can affect rights annexed to a + civil title, but not rights annexed to a natural title, and natural + descendants, though on emancipation they cease to be family heirs, cannot + cease to be children or grandchildren; whereas on the other hand adoptive + children are regarded as strangers after emancipation, because they lose + the title and name of son or daughter, which they have acquired by a civil + change, namely adoption, by another civil change, namely emancipation. + </p> + <p> + 12 And the rule is the same in the possession of goods against the will + which the praetor promises to children who are passed over in their + parent's testament, that is to say, are neither instituted nor duly + disinherited; for the praetor calls to this possession children who were + in their parent's power at the time of his decease, or emancipated, but + excludes those who at that time were in an adoptive family: still less + does he here admit adoptive children emancipated by their adoptive father, + for by emancipation they cease entirely to be children of his. + </p> + <p> + 13 We should observe, however, that though children who are in an adoptive + family, or who are emancipated by their adoptive after the decease of + their natural father, are not admitted on the death of the latter + intestate by that part of the edict by which children are called to the + possession of goods, they are called by another part, namely that which + admits the cognates of the deceased, who, however, come in only if there + are no family heirs, emancipated children, or agnates to take before them: + for the praetor prefers children, whether family heirs or emancipated, to + all other claimants, ranking in the second degree statutory successors, + and in the third cognates, or next of kin. + </p> + <p> + 14 All these rules, however, which to our predecessors were sufficient, + have received some emendation by the constitution which we have enacted + relative to persons who have been given in adoption to others by their + natural fathers; for we found cases in which sons by entering an adoptive + family forfeited their right of succeeding their natural parents, and + then, the tie of adoption being easily broken by emancipation, lost all + title to succeed their adoptive parents as well. We have corrected this, + in our usual manner, by a constitution which enacts that, when a natural + father gives his son in adoption to another person, the son's rights shall + remain the same in every particular as if he had continued in the power of + his natural father, and the adoption had never taken place, except only + that he shall be able to succeed his adoptive father should he die + intestate. If, however, the latter makes a will, the son cannot obtain any + part of the inheritance either by the civil or by the praetorian law, that + is to say, either by impeaching the will as unduteous or by applying for + possession against the will; for, being related by no tie of blood, the + adoptive father is not bound either to institute him heir or to disinherit + him, even though he has been adopted, in accordance with the SC. + Afinianum, from among three brothers; for, even under these circumstances, + he is not entitled to a fourth of what he might have taken on intestacy, + nor has he any action for its recovery. We have, however, by our + constitution excepted persons adopted by natural ascendants, for between + them and their adopters there is the natural tie of blood as well as the + civil tie of adoption, and therefore in this case we have preserved the + older law, as also in that of an independent person giving himself in + adrogation: all of which enactment can be gathered in its special details + from the tenor of the aforesaid constitution. + </p> + <p> + 15 By the ancient law too, which favoured the descent through males, those + grandchildren only were called as family heirs, and preferred to agnates, + who were related to the grandfather in this way: grandchildren by + daughters, and greatgrandchildren by granddaughters, whom it regarded only + as cognates, being called after the agnates in succession to their + maternal grandfather or greatgrandfather, or their grandmother or + greatgrandmother, whether paternal or maternal. But the Emperors would not + allow so unnatural a wrong to endure without sufficient correction, and + accordingly, as people are, and are called, grandchildren and + greatgrandchildren of a person whether they trace their descent through + males or through females, they placed them altogether in the same rank and + order of succession. In order, however, to bestow some privilege on those + who had in their favour the provisions of the ancient law as well as + natural right, they determined that grandchildren, greatgrandchildren, and + others who traced their descent through a female should have their portion + of the inheritance diminished by receiving less by onethird than their + mother or grandmother would have taken, or than their father or + grandfather, paternal or maternal, when the deceased, whose inheritance + was in question, was a woman; and they excluded the agnates, if such + descendants claimed the inheritance, even though they stood alone. Thus, + exactly as the statute of the Twelve Tables calls the grandchildren and + greatgrandchildren to represent their deceased father in the succession to + their grandfather, so the imperial legislation substitutes them for their + deceased mother or grandmother, subject to the aforesaid deduction of a + third part of the share which she personally would have taken. + </p> + <p> + 16 As, however, there was still some question as to the relative rights of + such grandchildren and of the agnates, who on the authority of a certain + constitution claimed a fourth part of the deceased's estate, we have + repealed the said enactment, and not permitted its insertion in our Code + from that of Theodosius. By the constitution which we have published, and + by which we have altogether deprived it of validity, we have provided that + in case of the survival of grandchildren by a daughter, greatgrandchildren + by a granddaughter, or more remote descendants related through a female, + the agnates shall have no claim to any part of the estate of the deceased, + that collaterals may no longer be preferred to lineal descendants; which + constitution we hereby reenact with all its force from the date originally + determined: provided always, as we direct, that the inheritance shall be + divided between sons and grandchildren by a daughter, or between all the + grandchildren, and other more remote descendants, according to stocks, and + not by counting heads, on the principle observed by the ancient law in + dividing an inheritance between sons and grandchildren by a son, the issue + obtaining without any diminution the portion which would have belonged to + their mother or father, grandmother or grandfather: so that if, for + instance, there be one or two children by one stock, and three or four by + another, the one or two, and the three or four, shall together take + respectively one moiety of the inheritance. + </p> + <p> + <a name="link2H_4_0056" id="link2H_4_0056"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES + </h2> + <p> + If there is no family heir, nor any of those persons called to the + succession along with family heirs by the praetor or the imperial + legislation, to take the inheritance in any way, it devolves, by the + statute of the Twelve Tables, on the nearest agnate. + </p> + <p> + 1 Agnates, as we have observed in the first book, are those cognates who + trace their relationship through males, or, in other words, who are + cognate through their respective fathers. Thus, brothers by the same + father are agnates, whether by the same mother or not, and are called + 'consanguinei'; an uncle is agnate to his brother's son, and vice versa; + and the children of brothers by the same father, who are called + 'consobrini, are one another's agnates, so that it is easy to arrive at + various degrees of agnation. Children who are born after their father's + decease acquire the rights of kinship exactly as if they had been born + before that event. But the law does not give the inheritance to all the + agnates, but only to those who were nearest in degree at the moment when + it was first certain that the deceased died intestate. + </p> + <p> + 2 The relation of agnation can also be established by adoption, for + instance, between a man's own sons and those whom he has adopted, all of + whom are properly called consanguinei in relation to one another. So, too, + if your brother, or your paternal uncle, or even a more remote agnate, + adopts any one, that person undoubtedly becomes one of your agnates. + </p> + <p> + 3 Male agnates have reciprocal rights of succession, however remote the + degree of relationship: but the rule as regards females, on the other + hand, was that they could not succeed as agnates to any one more remotely + related to them than a brother, while they themselves could be succeeded + by their male agnates, however distant the connexion: thus you, if a male, + could take the inheritance of a daughter either of your brother or of your + paternal uncle, or of your paternal aunt, but she could not take yours; + the reason of this distinction being the seeming expediency of successions + devolving as much as possible on males. But as it was most unjust that + such females should be as completely excluded as if they were strangers, + the praetor admits them to the possession of goods promised in that part + of the edict in which mere natural kinship is recognised as a title to + succession, under which they take provided there is no agnate, or other + cognate of a nearer degree of relationship. Now these distinctions were in + no way due to the statute of the Twelve Tables, which, with the simplicity + proper to all legislation, conferred reciprocal rights of succession on + all agnates alike, whether males or females, and excluded no degree by + reason merely of its remoteness, after the analogy of family heirs; but it + was introduced by the jurists who came between the Twelve Tables and the + imperial legislation, and who with their legal subtleties and refinements + excluded females other than sisters altogether from agnatic succession. + And no other scheme of succession was in those times heard of, until the + praetors, by gradually mitigating to the best of their ability the + harshness of the civil law, or by filling up voids in the old system, + provided through their edicts a new one. Mere cognation was thus in its + various degrees recognised as a title to succession, and the praetors gave + relief to such females through the possession of goods, which they + promised to them in that part of the edict by which cognates are called to + the succession. We, however, have followed the Twelve Tables in this + department of law, and adhered to their principles: and, while we commend + the praetors for their sense of equity, we cannot hold that their remedy + was adequate; for when the degree of natural relationship was the same, + and when the civil title of agnation was conferred by the older law on + males and females alike, why should males be allowed to succeed all their + agnates, and women (except sisters) be debarred from succeeding any? + Accordingly, we have restored the old rules in their integrity, and made + the law on this subject an exact copy of the Twelve Tables, by enacting, + in our constitution, that all 'statutory' successors, that is, persons + tracing their descent from the deceased through males, shall be called + alike to the succession as agnates on an intestacy, whether they be males + or females, according to their proximity of degree; and that no females + shall be excluded on the pretence that none but sisters have the right of + succeeding by the title of kinship. + </p> + <p> + 4 By an addition to the same enactment we have deemed it right to transfer + one, though only one, degree of cognates into the ranks of those who + succeed by a statutory title, in order that not only the children of a + brother may be called, as we have just explained, to the succession of + their paternal uncle, but that the children of a sister too, even though + only of the half blood on either side (but not her more remote + descendants), may share with the former the inheritance of their uncle; so + that, on the decease of a man who is paternal uncle to his brother's + children, and maternal uncle to those of his sister, the nephews and + nieces on either side will now succeed him alike, provided, of course, + that the brother and sister do not survive, exactly as if they all traced + their relationship through males, and thus all had a statutory title. But + if the deceased leaves brothers and sisters who accept the inheritance, + the remoter degrees are altogether excluded, the division in this case + being made individually, that is to say, by counting heads, not stocks. + </p> + <p> + 5 If there are several degrees of agnates, the statute of the Twelve + Tables clearly calls only the nearest, so that if, for instance, the + deceased leaves a brother, and a nephew by another brother deceased, or a + paternal uncle, the brother is preferred. And although that statute, in + speaking of the nearest agnate, uses the singular number, there is no + doubt that if there are several of the same degree they are all admitted: + for though properly one can speak of 'the nearest degree' only when there + are several, yet it is certain that even though all the agnates are in the + same degree the inheritance belongs to them. + </p> + <p> + 6 If a man dies without having made a will at all, the agnate who takes is + the one who was nearest at the time of the death of the deceased. But when + a man dies, having made a will, the agnate who takes (if one is to take at + all) is the one who is nearest when first it becomes certain that no one + will accept the inheritance under the testament; for until that moment the + deceased cannot properly be said to have died intestate at all, and this + period of uncertainty is sometimes a long one, so that it not unfrequently + happens that through the death, during it, of a nearer agnate, another + becomes nearest who was not so at the death of the testator. + </p> + <p> + 7 In agnatic succession the established rule was that the right of + accepting the inheritance could not pass from a nearer to a more remote + degree; in other words, that if the nearest agnate, who, as we have + described, is called to the inheritance, either refuses it or dies before + acceptance, the agnates of the next grade have no claim to admittance + under the Twelve Tables. This hard rule again the praetors did not leave + entirely without correction, though their remedy, which consisted in the + admission of such persons, since they were excluded from the rights of + agnation, in the rank of cognates, was inadequate. But we, in our desire + to have the law as complete as possible, have enacted in the constitution + which in our clemency we have issued respecting the rights of patrons, + that in agnatic succession the transference of the rights to accept from a + nearer to a remoter degree shall not be refused: for it was most absurd + that agnates should be denied a privilege which the praetor had conferred + on cognates, especially as the burden of guardianship fell on the second + degree of agnates if there was a failure of the first, the principle which + we have now sanctioned being admitted so far as it imposed burdens, but + rejected so far as it conferred a boon. + </p> + <p> + 8 To statutory succession the ascendant too is none the less called who + emancipates a child, grandchild, or remoter descendant under a fiduciary + agreement, which by our constitution is now implied in every emancipation. + Among the ancients the rule was different, for the parent acquired no + rights of succession unless he had entered into a special agreement of + trust to that effect prior to the emancipation. + </p> + <p> + <a name="link2H_4_0057" id="link2H_4_0057"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM + </h2> + <p> + So strict were the rules of the statute of the Twelve Tables in preferring + the issue of males, and excluding those who traced their relationship + through females, that they did not confer reciprocal rights of inheritance + even on a mother and her children, though the praetors called them to + succeed one another as next of kin by promising them the possession of + goods in the class of cognates. + </p> + <p> + 1 But this narrowness of the law was afterwards amended, the Emperor + Claudius being the first to confer on a mother, as a consolation for the + loss of her children, a statutory right to their inheritance, + </p> + <p> + 2 and afterwards, very full provisions were made by the SC. Tertullianum, + enacted in the time of the Emperor Hadrian, and relating to the melancholy + succession of children by their mothers, though not by their grandmothers, + whereby it was provided that a freeborn woman who had three or a + freedwoman who had four children should be entitled to succeed to the + goods of her children who died intestate, even though herself under + paternal power; though, in this latter case, she cannot accept the + inheritance except by the direction of the person in whose power she is. + </p> + <p> + 3 Children of the deceased who are or who rank as family heirs, whether in + the first or any other degree, are preferred to the mother, and even where + the deceased is a woman her children by imperial constitutions have a + prior claim to the mother, that is, to their own grandmother. Again, the + father of the deceased is preferred to the mother, but not so the paternal + grandfather or greatgrandfather, at least when it is between them only + that the question arises who is entitled. A brother by the same father + excluded the mother from the succession to both sons and daughters, but a + sister by the same father came in equally with the mother; and where there + were both a brother and a sister by the same father, as well as a mother + who was entitled by number of children, the brother excluded the mother, + and divided the inheritance in equal moieties with the sister. + </p> + <p> + 4 By a constitution, however, which we have placed in the Code made + illustrious by our name, we have deemed it right to afford relief to the + mother, in consideration of natural justice, of the pains of childbirth, + and of the danger and even death which mothers often incur in this manner; + for which reason we have judged it a sin that they should be prejudiced by + a circumstance which is entirely fortuitous. For if a freeborn woman had + not borne three, or a freedwoman four children, she was undeservedly + defrauded of the succession to her own offspring; and yet what fault had + she committed in bearing few rather than many children? Accordingly, we + have conferred on mothers a full statutory right of succession to their + children, and even if they have had no other child than the one in + question deceased. + </p> + <p> + 5 The earlier constitutions, in their review of statutory rights of + succession, were in some points favourable, in others unfavourable, to + mothers; thus in some cases they did not call them to the whole + inheritance of their children, but deducted a third in favour of certain + other persons with a statutory title, while in others they did exactly the + opposite. We, however, have determined to follow a straightforward and + simple path, and, preferring the mother to all other persons with a + statutory title, to give her the entire succession of her sons, without + deduction in favour of any other persons except a brother or sister, + whether by the same father as the deceased, or possessing rights of + cognation only; so that, as we have preferred the mother to all with a + statutory title, so we call to the inheritance, along with her, all + brothers and sisters of the deceased, whether statutorily entitled or not: + provided that, if the only surviving relatives of the deceased are + sisters, agnatic or cognatic, and a mother, the latter shall have onehalf, + and all the sisters together the other half of the inheritance; if a + mother and a brother or brothers, with or without sisters agnatic or + cognatic, the inheritance shall be divided among mother, brothers, and + sisters in equal portions. + </p> + <p> + 6 But, while we are legislating for mothers, we ought also to bestow some + thought on their offspring; and accordingly mothers should observe that if + they do not apply within a year for guardians for their children, either + originally or in lieu of those who have been removed or excused, they will + forfeit their title to succeed such children if they die under the age of + puberty. + </p> + <p> + 7 A mother can succeed her child under the SC. Tertullianum even though + the child be illegitimate. + </p> + <p> + <a name="link2H_4_0058" id="link2H_4_0058"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IV. OF THE SENATUSCONSULTUM ORFITIANUM + </h2> + <p> + Conversely, children were admitted to succeed their mother on her death + intestate by the SC. Orfitianum, passed in the time of the Emperor Marcus, + when Orfitus and Rufus were consuls: by which a statutory right of + succession was conferred on both sons and daughters, even though in the + power of another, in preference to their deceased mother's brothers and + sisters and other agnates. + </p> + <p> + 1 As, however, grandsons were not called by this senatusconsult with a + statutory title to the succession of their grandmothers, + </p> + <p> + 2 this was subsequently amended by imperial constitutions, providing that + grandchildren should be called to inherit exactly like children. It is to + be observed that rights of succession such as those conferred by the SC. + Tertullianum and Orfitianum are not extinguished by loss of status, owing + to the rule that rights of succession conferred by later statutes are not + destroyed in this way, but only such as are conferred by the statute of + the Twelve Tables; + </p> + <p> + 3 and finally that under the latter of these two enactments even + illegitimate children are admitted to their mother's inheritance. + </p> + <p> + 4 If there are several heirs with a statutory title, some of whom do not + accept, or are prevented from doing so by death or some other cause, their + shares accrue in equal proportions to those who do accept the inheritance, + or to their heirs, supposing they die before the failure of the others to + take. + </p> + <p> + <a name="link2H_4_0059" id="link2H_4_0059"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE V. OF THE SUCCESSION OF COGNATES + </h2> + <p> + After family heirs, and persons who by the praetor and the imperial + legislation are ranked as such, and after persons statutorily entitled, + among whom are the agnates and those whom the aforesaid senatusconsults + and our constitution have raised to the rank of agnates, the praetor calls + the nearest cognates. + </p> + <p> + 1 In this class or order natural or blood relationship alone is + considered: for agnates who have undergone loss of status and their + children, though not regarded as having a statutory title under the + statute of the Twelve Tables, are called by the praetor in the third order + of the succession. The sole exceptions to this rule are emancipated + brothers and sisters, though not in equal shares with them, but with some + deduction, the amount of which can easily be ascertained from the terms of + the constitution itself. But to other agnates of remoter degrees, even + though they have not undergone loss of status, and still more to cognates, + they are preferred by the aforesaid statute. + </p> + <p> + 2 Again, collateral relations connected with the deceased only by the + female line are called to the succession by the praetor in the third order + as cognates; + </p> + <p> + 3 and children who are in an adoptive family are admitted in this order to + the inheritance of their natural parent. + </p> + <p> + 4 It is clear that illegitimate children can have no agnates, for in law + they have no father, and it is through the father that agnatic + relationship is traced, while cognatic relationship is traced through the + mother as well. On the same principle they cannot be held to be + consanguinei of one another, for consanguinei are in a way agnatically + related: consequently, they are connected with one another only as + cognates, and in the same way too with the cognates of their mother. + Accordingly, they can succeed to the possession of goods under that part + of the Edict in which cognates are called by the title of mere kinship. + </p> + <p> + 5 In this place too we should observe that a person who claims as an + agnate can be admitted to the inheritance, even though ten degrees removed + from the deceased, both by the statute of the Twelve Tables, and by the + Edict in which the praetor promises the possession of goods to heirs + statutorily entitled: but on the ground of mere natural kinship the + praetor promises possession of goods to those cognates only who are within + the sixth degree; the only persons in the seventh degree whom he admits as + cognates being the children of a second cousin of the deceased. + </p> + <p> + <a name="link2H_4_0060" id="link2H_4_0060"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VI. OF THE DEGREES OF COGNATION + </h2> + <p> + It is here necessary to explain the way in which the degrees of natural + relationship are reckoned. In the first place it is to be observed that + they can be counted either upwards, or downwards, or crosswise, that is to + say, collaterally. Relations in the ascending line are parents, in the + descending line, children, and similarly uncles and aunts paternal and + maternal. In the ascending and descending lines a man's nearest cognate + may be related to him in the first degree; in the collateral line he + cannot be nearer to him than the second. + </p> + <p> + 1 Relations in the first degree, reckoning upwards, are the father and + mother; reckoning downwards, the son and daughter. + </p> + <p> + 2 Those in the second degree, upwards, are grandfather and grandmother; + downwards, grandson and granddaughter; + </p> + <p> + 3 and in the collateral line brother and sister. In the third degree, + upwards, are the greatgrandfather and greatgrandmother; downwards, the + greatgrandson and greatgranddaughter; in the collateral line, the sons and + daughters of a brother or sister, and also uncles and aunts paternal and + maternal. The father's brother is called 'patruus,' in Greek 'patros', the + mother's brother avunculus, in Greek specifically 'matros,' though the + term theios is used indifferently to indicate either. The father's sister + is called 'amita,' the mother's 'matertera'; both go in Greek by the name + 'theia,' or, with some, 'tithis.' + </p> + <p> + 4 In the fourth degree, upwards, are the greatgreatgrandfather and the + greatgreatgrandmother; downwards, the greatgreatgrandson and the + great-great-granddaughter; in the collateral line, the paternal greatuncle + and greataunt, that is to say, the grandfather's brother and sister: the + same relations on the grandmother's side, that is to say, her brother and + sister: and first cousins male and female, that is, children of brothers + and sisters in relation to one another. The children of two sisters, in + relation to one another, are properly called 'consobrini,' a corruption of + 'consororini'; those of two brothers, in relation to one another, 'fratres + patrueles,' if males, 'sorores patrueles,' if females; and those of a + brother and a sister, in relation to one another, 'amitini'; thus the sons + of your father's sister call you 'consobrinus,' and you call them + 'amitini.' + </p> + <p> + 5 In the fifth degree, upwards, are the grandfather's great-grandfather + and great-grandmother, downwards, the great-grandchildren of one's own + grandchildren, and in the collateral line the grandchildren of a brother + or sister, a great-grandfather's or great-grandmother's brother or sister, + the children of one's first cousins, that is, of a 'frater-' or 'soror + patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or + 'amitina,' and first cousins once removed, that is to say, the children of + a great-uncle or great-aunt paternal or maternal. + </p> + <p> + 6 In the sixth degree, upwards, are the great-grandfather's + great-grandfather and great-grandmother; downwards, the + great-grandchildren of a great-grandchild, and in the collateral line the + great-grandchildren of a brother or sister, as also the brother and sister + of a great-great-grandfather or great-great-grandmother, and second + cousins, that is to say, the children of 'fratres-' or 'sorores + patrueles,' of 'consobrini,' or of 'amitini.' + </p> + <p> + 7 This will be enough to show how the degrees of relationship are + reckoned; for from what has been said it is easy to understand how we + ought to calculate the remoter degrees also, each generation always adding + one degree: so that it is far easier to say in what degree any one is + related to some one else than to indicate his relationship by the proper + specific term. + </p> + <p> + 8 The degrees of agnation are also reckoned in the same manner; + </p> + <p> + 9 but as truth is fixed in the mind of man much better by the eye than by + the ear, we have deemed it necessary, after giving an account of the + degree of relationship, to have a table of them inserted in the present + book, that so the youth may be able by both ears and eyes to gain a most + perfect knowledge of them. [Note:—the pedagogical table is omitted + in the present edition.] + </p> + <p> + 10 It is certain that the part of the Edict in which the possession of + goods is promised to the next of kin has nothing to do with the + relationships of slaves with one another, nor is there any old statute by + which such relationships were recognised. However, in the constitution + which we have issued with regard to the rights of patrons—a subject + which up to our times had been most obscure, and full of difficulties and + confusion—we have been prompted by humanity to grant that if a slave + shall beget children by either a free woman or another slave, or + conversely if a slave woman shall bear children of either sex by either a + freeman or a slave, and both the parents and the children (if born of a + slave woman) shall become free, or if the mother being free, the father be + a slave, and subsequently acquire his freedom, the children shall in all + these cases succeed their father and mother, and the patron's rights lie + dormant. And such children we have called to the succession not only of + their parents, but also of one another reciprocally, by this enactment, + whether those born in slavery and subsequently manumitted are the only + children, or whether there be others conceived after their parents had + obtained their freedom, and whether they all have the same father and + mother, or the same father and different mothers, or vice versa; the rules + applying to children born in lawful wedlock being applied here also. + </p> + <p> + 11 To sum up all that we have said, it appears that persons related in the + same degree of cognation to the deceased are not always called together, + and that even a remoter is sometimes preferred to a nearer cognate. For as + family heirs and those whom we have enumerated as equivalent to family + heirs have a priority over all other claimants, it is clear that a + great-grandson or great-great-grandson is preferred to a brother, or the + father or mother of the deceased; and yet the father and mother, as we + have remarked above, are in the first degree of cognation, and the brother + is in the second, while the great-grandson and great-great-grandson are + only in the third and fourth respectively. And it is immaterial whether + the descendant who ranks among family heirs was in the power of the + deceased at the time of his death, or out of it through having been + emancipated or through being the child of an emancipated child or a child + of the female sex. + </p> + <p> + 12 When there are no family heirs, and none of those persons who we have + said rank as such, an agnate who has lost none of his agnatic rights, even + though very many degrees removed from the deceased, is usually preferred + to a nearer cognate; for instance, the grandson or great-grandson of a + paternal uncle has a better title than a maternal uncle or aunt. + Accordingly, in saying that the nearest cognate is preferred in the + succession, or that, if there are several cognates in the nearest degree, + they are called equally, we mean that this is the case if no one is + entitled to priority, according to what we have said, as either being or + ranking as a family heir, or as being an agnate; the only exceptions to + this being emancipated brothers and sisters of the deceased who are called + to succeed him, and who, in spite of their loss of status, are preferred + to other agnates in a remoter degree than themselves. + </p> + <p> + <a name="link2H_4_0061" id="link2H_4_0061"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VII. OF THE SUCCESSION TO FREEDMEN + </h2> + <p> + Let us now turn to the property of freedmen. These were originally allowed + to pass over their patrons in their wills with impunity: for by the + statute of the Twelve Tables the inheritance of a freedman devolved on his + patron only when he died intestate without leaving a family heir. If he + died intestate, but left a family heir, the patron was not entitled to any + portion of this property, and this, if the family heir was a natural + child, seemed to be no grievance; but if he was an adoptive child, it was + clearly unfair that the patron should be debarred from all right to the + succession. + </p> + <p> + 1 Accordingly this injustice of the law was at a later period corrected by + the praetor's Edict, by which, if a freedman made a will, he was commanded + to leave his patron half his property; and, if he left him nothing at all, + or less than a half, possession of such half was given to him against the + testament. If, on the other hand, he died intestate, leaving as family + heir an adoptive son, the patron could obtain even against the latter + possession of the goods of the deceased to the extent of onehalf. But the + freedman was enabled to exclude the patron if he left natural children, + whether in his power at the time of his death, or emancipated or given in + adoption, provided that he made a will in which he instituted them heirs + to any part of the succession, or that, being passed over, they demanded + possession against the will under the Edict: + </p> + <p> + 2 if disinherited, they did not avail to bar the patron. At a still later + period the lex Papia Poppaea augmented the rights of patrons who had more + wealthy freedmen. By this it was enacted that, whenever a freedman left + property amounting in value to a hundred thousand sesterces and upwards, + and not so many as three children, the patron, whether he died testate or + intestate, should be entitled to a portion equal to that of a single + child. Accordingly, if the freedman left a single son or daughter as heir, + the patron could claim half the property, exactly as if he had died + without leaving any children: if he left two children as heirs, the patron + could claim a third: if he left three, the patron was excluded altogether. + </p> + <p> + 3 In our constitution, however, which we have drawn up in a convenient + form and in the Greek language, so as to be known by all, we have + established the following rules for application to such cases. If the + freedman or freedwoman is less than a 'centenarius', that is, has a + fortune of less than a hundred aurei (which we have reckoned as equivalent + to the sum of a hundred thousand sesterces fixed by the lex Papia), the + patron shall have no right to any share in the succession if they make a + will; while, if they die intestate without leaving any children, we have + retained unimpaired the rights conferred on the patron by the Twelve + Tables. If they are possessed of more than a hundred aurei, and leave a + descendant or descendants of either sex and any degree to take the + inheritance civil or praetorian, we have given to such child or children + the succession to their parents, to the exclusion of every patron and his + issue. If, however, they leave no children, and die intestate, we have + called the patron or patroness to their whole inheritance: while if they + make a will, passing over their patron or patroness, and leaving no + children, or having disinherited such as they have, or (supposing them to + be mothers or maternal grandfathers) having passed them over without + leaving them the right to impeach the testament as unduteous, then, under + our constitution, the patron shall succeed, by possession against the + will, not, as before, to onehalf of the freedman's estate, but to + onethird, or, if the freedman or freedwoman has left him less than this + third in his or her will, to so much as will make up the difference. But + this third shall be free from all charges, even from legacies or trust + bequests in favour of the children of the freedman or freedwoman, all of + which are to fall on the patron's coheirs. In the same constitution we + have gathered together the rules applying to many other cases, which we + deemed necessary for the complete settlement of this branch of law: for + instance, a title to the succession of freedmen is conferred not only on + patrons and patronesses, but on their children and collateral relatives to + the fifth degree: all of which may be ascertained by reference to the + constitution itself. If, however, there are several descendants of a + patron or patroness, or of two or several, the nearest in degree is to + take the succession of the freedman or freedwoman, which is to be divided, + not among the stocks, but by counting the heads of those nearest in + degree. And the same rule is to be observed with collaterals: for we have + made the law of succession to freedmen almost identical with that relating + to freeborn persons. + </p> + <p> + 4 All that has been said relates nowadays to freedmen who are Roman + citizens, for dediticii and Latini Iuniani having been together abolished + there are now no others. As to a statutory right of succession to a Latin, + there never was any such thing; for men of this class, though during life + they lived as free, yet as they drew their last breath they lost their + liberty along with their life, and under the lex Iunia their manumitters + kept their property, like that of slaves, as a kind of peculium. It was + subsequently provided by the SC. Largianum that the manumitter's children, + unless expressly disinherited, should be preferred to his external heirs + in succession to the goods of a Latin; and this was followed by the edict + of the Emperor Trajan, providing that a Latin who contrived, without the + knowledge or consent of his patron, to obtain by imperial favour a grant + of citizenship should live a citizen, but die a Latin. Owing, however, to + the difficulties accompanying these changes of condition, and others as + well, we have determined by our constitution to repeal for ever the lex + Iunia, the SC. Largianum, and the edict of Trajan, and to abolish them + along with the Latins themselves, so as to enable all freedmen to enjoy + the citizenship of Rome: and we have converted in a wonderful manner the + modes in which persons became Latins, with some additions, into modes of + attaining Roman citizenship. + </p> + <p> + <a name="link2H_4_0062" id="link2H_4_0062"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VIII. OF THE ASSIGNMENT OF FREEDMEN + </h2> + <p> + Before we leave the subject of succession to freedmen, we should observe a + resolution of the Senate, to the effect that, though the property of + freedmen belongs in equal portions to all the patron's children who are in + the same degree, it shall yet be lawful for a parent to assign a freedman + to one of his children, so that after his own death the assignee shall be + considered his sole patron, and the other children who, had it not been + for such assignment, would be admitted equally with him, shall have no + claim to the succession whatever: though they recover their original + rights if the assignee dies without issue. + </p> + <p> + 1 It is lawful to assign freedwomen as well as freedmen, and to daughters + and granddaughters no less than to sons and grandsons; + </p> + <p> + 2 and the power of assignment is conferred on all who have two or more + children in their power, and enables them to assign a freedman or + freedwoman to such children while so subject to them. Accordingly the + question arose, whether the assignment becomes void, if the parent + subsequently emancipates the assignee? and the affirmative opinion, which + was held by Julian and many others, has now become settled law. + </p> + <p> + 3 It is immaterial whether the assignment is made in a testament or not, + and indeed patrons are enabled to exercise this power in any terms + whatsoever, as is provided by the senatusconsult passed in the time of + Claudius, when Suillus Rufus and Ostorius Scapula were consuls. + </p> + <p> + <a name="link2H_4_0063" id="link2H_4_0063"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IX. OF POSSESSION OF GOODS + </h2> + <p> + The law as to possession of goods was introduced by the praetor by way of + amending the older system, and this not only in intestate succession, as + has been described, but also in cases where deceased persons have made a + will. For instance, although the posthumous child of a stranger, if + instituted heir, could not by the civil law enter upon the inheritance, + because his institution would be invalid, he could with the assistance of + the praetor be made possessor of the goods by the praetorian law. Such a + one can now, however, by our constitution be lawfully instituted, as being + no longer unrecognised by the civil law. + </p> + <p> + 1 Sometimes, however, the praetor promises the possession of goods rather + in confirmation of the old law than for the purpose of correcting or + impugning it; as, for instance, when he gives possession in accordance + with a duly executed will to those who have been instituted heirs therein. + Again, he calls family heirs and agnates to the possession of goods on an + intestacy; and yet, even putting aside the possession of goods, the + inheritance belongs to them already by the civil law. + </p> + <p> + 2 Those whom the praetor calls to a succession do not become heirs in the + eye of the law, for the praetor cannot make an heir, because persons + become heirs by a statute only, or some similar ordinance such as a + senatusconsult or an imperial constitution: but as the praetor gives them + the possession of goods they become quasiheirs, and are called 'possessors + of goods.' And several additional grades of grantees of possession were + recognised by the praetor in his anxiety that no one might die without a + successor; the right of entering upon an inheritance, which had been + confined by the statute of the Twelve Tables within very narrow limits, + having been conferred more extensively by him in the spirit of justice and + equity. + </p> + <p> + 3 The following are the kinds of testamentary possession of goods. First, + the socalled 'contratabular' possession, given to children who are merely + passed over in the will. Second, that which the praetor promises to all + duly instituted heirs, and which is for that reason called secundum + tabulas. Then, having spoken of wills, the praetor passes on to cases of + intestacy, in which, firstly, he gives the possession of goods which is + called unde liberi to family heirs and those who in his Edict are ranked + as such. Failing these, he gives it, secondly, to successors having a + statutory title: thirdly, to the ten persons whom he preferred to the + manumitter of a free person, if a stranger in relation to the latter, + namely the latter's father and mother, grandparents paternal and maternal, + children, grandchildren by daughters as well as by sons, and brothers and + sisters whether of the whole or of the half blood only. The fourth degree + of possession is that given to the nearest cognates: the fifth is that + called tum quam ex familia: the sixth, that given to the patron and + patroness, their children and parents: the seventh, that given to the + husband or wife of the deceased: the eighth, that given to cognates of the + manumitter. + </p> + <p> + 4 Such was the system established by the praetorian jurisdiction. We, + however, who have been careful to pass over nothing, but correct all + defects by our constitutions, have retained, as necessary, the possession + of goods called contra tabulas and secundum tabulas, and also the kinds of + possession upon intestacy known as unde liberis and unde legitimi. + </p> + <p> + 5 The possession, however, which in the praetor's Edict occupied the fifth + place, and was called unde decem personae, we have with benevolent + intentions and with a short treatment shown to be superfluous. Its effect + was to prefer to the extraneous manumitter the ten persons specified + above; but our constitution, which we have made concerning the + emancipation of children, has in all cases made the parent implicitly the + manumitter, as previously under a fiduciary contract, and has attached + this privilege to every such manumission, so as to render superfluous the + aforesaid kind of possession of goods. We have therefore removed it, and + put in its place the possession which the praetor promises to the nearest + cognates, and which we have thus made the fifth kind instead of the sixth. + </p> + <p> + 6 The possession of goods which formerly stood seventh in the list, which + was called tum quam ex familia, and that which stood eighth, namely, the + possession entitled unde liberi patroni patronaeque et parentes eorum, we + have altogether suppressed by our constitution respecting the rights of + patrons. For, having assimilated the succession to freedmen to the + succession to freeborn persons, with this sole exception—in order to + preserve some difference between the two classes—that no one has any + title to the former who is related more distantly than the fifth degree, + we have left them sufficient remedies in the 'contratabular' possession, + and in those called unde legitimi and unde cognati, wherewith to vindicate + their rights, so that thus all the subtleties and inextricable confusion + of these two kinds of possession of goods have been abolished. + </p> + <p> + 7 We have preserved in full force another possession of goods, which is + called unde vir et uxor, and which occupied the ninth place in the old + classification, and have given it a higher place, namely, the sixth. The + tenth kind, which was called unde cognati manumissoris, we have very + properly abolished for reasons which have been already stated: thus + leaving in full operation only six ordinary kinds of possession of goods. + </p> + <p> + 8 The seventh, which follows them, was introduced with most excellent + reason by the praetors, whose Edict finally promised the possession of + goods to those persons expressly entitled to it by any statute, + senatusconsult, or imperial constitution; but this was not permanently + incorporated by the praetor with either the intestate or the testamentary + kinds of possession, but was accorded by him, as circumstances demanded, + as an extreme and extraordinary remedy to those persons who claim, either + under a will or on an intestacy, under statutes, senatusconsults, or the + more recent legislation of the emperors. + </p> + <p> + 9 The praetor, having thus introduced many kinds of successions, and + arranged them in a system, fixed a definite time within which the + possession of goods must be applied for, as there are often several + persons entitled in the same kind of succession, though related in + different degrees to the deceased, in order to save the creditors of the + estate from delay in their suits, and to provide them with a proper + defendant to sue; and with the object also of making it less easy for them + to obtain possession of the property of the deceased, as in bankruptcy, + wherein they consulted their own advantage only. He allowed to children + and parents, adoptive no less than natural, an interval of a year, and to + all other persons one hundred days, within which to make the application. + </p> + <p> + 10 If a person entitled does not apply for the possession of goods within + the time specified, his portion goes by accrual to those in the same + degree or class with himself: or, if there be none, the praetor promises + by his successory edict the possession to those in the next degree, + exactly as if the person in the preceding one were nonexistent. If any one + refuses the possession of goods which he has the opportunity of accepting, + it is not unusual to wait until the aforesaid interval, within which + possession must be applied for, has elapsed, but the next degree is + admitted immediately under the same edict. + </p> + <p> + 11 In reckoning the interval, only those days are considered upon which + the persons entitled could have made application. + </p> + <p> + 12 Earlier emperors, however, have judiciously provided that no one need + trouble himself expressly to apply for the possession of goods, but that, + if he shall within the prescribed time in any manner have signified his + intention to accept, he shall have the full benefit of such tacit + acceptance. + </p> + <p> + <a name="link2H_4_0064" id="link2H_4_0064"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE X. OF ACQUISITION BY ADROGATION + </h2> + <p> + There is another kind of universal succession which owes its introduction + neither to the statute of the Twelve Tables nor to the praetor's Edict, + but to the law which is based upon custom and consent. + </p> + <p> + 1 When an independent person gives himself in adrogation, all his + property, corporeal and incorporeal, and all debts due to him formerly + passed in full ownership to the adrogator, except such rights as are + extinguished by loss of status, for instance, bounden services of freedmen + and rights of agnation. Use and usufruct, though formerly enumerated among + such rights, have now been saved by our constitution from extinction by + the least loss of status. + </p> + <p> + 2 But we have now confined acquisition by adrogation within the same + limits as acquisition through their children by natural parents; that is + to say, adoptive as well as natural parents acquire no greater right in + property which comes to children in their power from any extraneous source + than a mere usufruct; the ownership is vested in the children themselves. + But if a son who has been adrogated dies in his adoptive family, the whole + of his property vests in the adrogator, failing those persons who, under + our constitution, are preferred to the father in succession to property + which is not acquired immediately from him. + </p> + <p> + 3 Conversely, the adrogator is not, by strict law, suable for the debts of + his adoptive son, but an action may be brought against him as his + representative; and if he declines to defend the latter, the creditors are + allowed, by an order of the magistrates having jurisdiction in such cases, + to take possession of the property of which the usufruct as well as the + ownership would have belonged to the son, had he not subjected himself to + the power of another, and to dispose of it in the mode prescribed by law. + </p> + <p> + <a name="link2H_4_0065" id="link2H_4_0065"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE + THE GIFTS OF LIBERTY + </h2> + <p> + A new form of succession was added by a constitution of the Emperor + Marcus, which provided that if slaves, who have received a bequest of + liberty from their master in a will under which no heir takes, wish to + have his property adjudged to them, their application shall be + entertained. + </p> + <p> + 1 Such is the substance of a rescript addressed by the Emperor Marcus to + Popilius Rufus, which runs as follows: 'If there is no successor to take + on the intestacy of Virginius Valens, who by his will has conferred + freedom on certain of his slaves, and if, consequently, his property is in + danger of being sold, the magistrate who has cognizance of such matters + shall on application entertain your desire to have the property adjudged + to you, in order to give effect to the bequests of liberty, direct and + fiduciary, provided you give proper security to the creditors for payment + of their claims in full. Slaves to whom liberty has been directly + bequeathed shall become free exactly as if the inheritance had been + actually accepted, and those whom the heir was requested to manumit shall + obtain their liberty from you; provided that if you will have the property + adjudged to you only upon the condition, that even the slaves who have + received a direct bequest of liberty shall become your freedmen, and if + they, whose status is now in question, agree to this, we are ready to + authorize compliance with your wishes. And lest the benefit afforded by + this our rescript be rendered ineffectual in another way, by the Treasury + laying claim to the property, be it hereby known to those engaged in our + service that the cause of liberty is to be preferred to pecuniary + advantage, and that they must so effect such seizures as to preserve the + freedom of those who could have obtained it had the inheritance been + accepted under the will.' + </p> + <p> + 2 This rescript was a benefit not only to slaves thus liberated, but also + to the deceased testators themselves, by saving their property from being + seized and sold by their creditors; for it is certain that such seizure + and sale cannot take place if the property has been adjudged on this + account, because some one has come forward to defend the deceased, and a + satisfactory defender too, who gives the creditors full security for + payment. + </p> + <p> + 3 Primarily, the rescript is applicable only where freedom is conferred by + a will. How then will the case stand, if a man who dies intestate makes + gifts of freedom by codicils, and on the intestacy no one accepts the + inheritance? We answer, that the boon conferred by the constitution ought + not here to be refused. No one can doubt that liberty given, in codicils, + by a man who dies having made a will, is effectual. + </p> + <p> + 4 The terms of the constitution show that it comes into application when + there is no successor on an intestacy; accordingly, it is of no use so + long as it is uncertain whether there will be one or not; but, when this + has been determined in the negative, it at once becomes applicable. + </p> + <p> + 5 Again, it may be asked whether, if a person who abstains from accepting + an inheritance can claim a judicial restoration of rights, the + constitution can still be applied, and the goods adjudged under it? And + what, if such person obtains a restoration after they have been actually + adjudged in order to give effect to the bequest of freedom? We reply that + gifts of liberty to which effect has once been given cannot possibly be + recalled. + </p> + <p> + 6 The object with which this constitution was enacted was to give effect + to bequests of liberty, and accordingly it is quite inapplicable where no + such bequests are made. Supposing, however, that a man manumits certain + slaves in his lifetime, or in contemplation of death, and in order to + prevent any questions arising whether the creditors have thereby been + defrauded, the slaves are desirous of having the property adjudged to + them, should this be permitted? and we are inclined to say that it should, + though the point is not covered by the terms of the constitution. + </p> + <p> + 7 Perceiving, however, that the enactment was wanting in many minute + points of this kind, we have ourselves issued a very full constitution, in + which have been collected many conceivable cases by which the law relating + to this kind of succession has been completed, and with which any one can + become acquainted by reading the constitution itself. + </p> + <p> + <a name="link2H_4_0066" id="link2H_4_0066"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON + BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM + </h2> + <p> + There were other kinds of universal succession in existence prior to that + last before mentioned; for instance, the 'purchase of goods' which was + introduced with many prolixities of form for the sale of insolvent + debtors' estates, and which remained in use under the socalled 'ordinary' + system of procedure. Later generations adopted the 'extraordinary' + procedure, and accordingly sales of goods became obsolete along with the + ordinary procedure of which they were a part. Creditors are now allowed to + take possession of their debtor's property only by the order of a judge, + and to dispose of it as to them seems most advantageous; all of which will + appear more perfectly from the larger books of the Digest. + </p> + <p> + 1 There was too a miserable form of universal acquisition under the SC. + Claudianum, when a free woman, through indulgence of her passion for a + slave, lost her freedom by the senatusconsult, and with her freedom her + property. But this enactment we deemed unworthy of our times, and have + ordered its abolition in our Empire, nor allowed it to be inserted in our + Digest. + </p> + <p> + <a name="link2H_4_0067" id="link2H_4_0067"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIII. OF OBLIGATIONS + </h2> + <p> + Let us now pass on to obligations. An obligation is a legal bond, with + which we are bound by a necessity of performing some act according to the + laws of our State. + </p> + <p> + 1 The leading division of obligations is into two kinds, civil and + praetorian. Those obligations are civil which are established by statute, + or at least are sanctioned by the civil law; those are praetorian which + the praetor has established by his own jurisdiction, and which are also + called honorary. + </p> + <p> + 2 By another division they are arranged in four classes, contractual, + quasicontractual, delictal, and quasidelictal. And first, we must examine + those which are contractual, and which again fall into four species, for + contract is concluded either by delivery, by a form of words, by writing, + or by consent: each of which we will treat in detail. + </p> + <p> + <a name="link2H_4_0068" id="link2H_4_0068"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE + CONTRACTED BY DELIVERY + </h2> + <p> + Real contracts, or contracts concluded by delivery, are exemplified by + loan for consumption, that is to say, loan of such things as are estimated + by weight, number, or measure, for instance, wine, oil, corn, coined + money, copper, silver, or gold: things in which we transfer our property + on condition that the receiver shall transfer to us, at a future time, not + the same things, but other things of the same kind and quality: and this + contract is called mutuum, because thereby meum or mine becomes tuum or + thine. The action to which it gives rise is called a condiction. + </p> + <p> + 1 Again, a man is bound by a real obligation if he takes what is not owed + him from another who pays him by mistake; and the latter can, as + plaintiff, bring a condiction against him for its recovery, after the + analogy of the action whose formula ran 'if it be proved that he ought to + convey,' exactly as if the defendant had received a loan from him. + Consequently a pupil who, by mistake, is paid something which is not + really owed him without his guardian's authority, will no more be bound by + a condiction for the recovery of money not owed than by one for money + received as a loan: though this kind of liability does not seem to be + founded on contract; for a payment made in order to discharge a debt is + intended to extinguish, not to create, an obligation. + </p> + <p> + 2 So too a person to whom a thing is lent for use is laid under a real + obligation, and is liable to the action on a loan for use. The difference + between this case and a loan for consumption is considerable, for here the + intention is not to make the object lent the property of the borrower, who + accordingly is bound to restore the same identical thing. Again, if the + receiver of a loan for consumption loses what he has received by some + accident, such as fire, the fall of a building, shipwreck, or the attack + of thieves or enemies, he still remains bound: but the borrower for use, + though responsible for the greatest care in keeping what is lent him—and + it is not enough that he has shown as much care as he usually bestows on + his own affairs, if only some one else could have been more diligent in + the charge of it—has not to answer for loss occasioned by fire or + accident beyond his control, provided it did not occur through any fault + of his own. Otherwise, of course, it is different: for instance, if you + choose to take with you on a journey a thing which has been lent to you + for use, and lose it by being attacked by enemies or thieves, or by a + shipwreck, it is beyond question that you will be liable for its + restoration. A thing is not properly said to be lent for use if any + recompense is received or agreed upon for the service; for where this is + the case, the use of the thing is held to be hired, and the contract is of + a different kind, for a loan for use ought always to be gratuitous. + </p> + <p> + 3 Again, the obligation incurred by a person with whom a thing is + deposited for custody is real, and he can be sued by the action of the + deposit; he too being responsible for the restoration of the identical + thing deposited, though only where it is lost through some positive act of + commission on his part: for for carelessness, that is to say, inattention + and negligence, he is not liable. Thus a person from whom a thing is + stolen, in the charge of which he has been most careless, cannot be called + to account, because, if a man entrusts property to the custody of a + careless friend, he has no one to blame but himself for his want of + caution. + </p> + <p> + 4 Finally, the creditor who takes a thing in pledge is under a real + obligation, and is bound to restore the thing itself by the action of + pledge. A pledge, however, is for the benefit of both parties; of the + debtor, because it enables him to borrow more easily, and of the creditor, + because he has the better security for repayment; and accordingly, it is a + settled rule that the pledgee cannot be held responsible for more than the + greatest care in the custody of the pledge; if he shows this, and still + loses it by some accident, he himself is freed from all liability, without + losing his right to sue for the debt. + </p> + <p> + <a name="link2H_4_0069" id="link2H_4_0069"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XV. OF VERBAL OBLIGATION + </h2> + <p> + An obligation is contracted by question and answer, that is to say, by a + form of words, when we stipulate that property shall be conveyed to us, or + some other act be performed in our favour. Such verbal contracts ground + two different action, namely condiction, when the stipulation is certain, + and the action on stipulation, when it is uncertain; and the name is + derived from stipulum, a word in use among the ancients to mean 'firm,' + coming possibly from stipes, the trunk of a tree. + </p> + <p> + 1 In this contract the following forms of words were formerly sanctioned + by usage: 'Do you engage yourself to do so and so?' 'I do engage myself.' + 'Do you promise?' 'I do promise.' 'Do you pledge your credit?' 'I pledge + my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you convey?' 'I will + convey.' 'Will you do?' 'I will do.' Whether the stipulation is in Latin, + or Greek, or any other language, is immaterial, provided the two parties + understand one another, so that it is not necessary even that they should + both speak in the same tongue, so long as the answer corresponds to the + question, and thus two Greeks, for instance, may contract an obligation in + Latin. But it was only in former times that the solemn forms referred to + were in use: for subsequently, by the enactment of Leo's constitution, + their employment was rendered unnecessary, and nothing was afterwards + required except that the parties should understand each other, and agree + to the same thing, the words in which such agreement was expressed being + immaterial. + </p> + <p> + 2 The terms of a stipulation may be absolute, or performance may either be + postponed to some future time, or be made subject to a condition. An + absolute stipulation may be exemplified by the following: 'Do you promise + to give five aurei?' and here (if the promise be made) that sum may be + instantly sued for. As an instance of stipulation in diem, as it is called + where a future day is fixed for payment, we may take the following: 'Do + you promise to give ten aurei on the first of March?' In such a + stipulation as this, an immediate debt is created, but it cannot be sued + upon until the arrival of the day fixed for payment: and even on that very + day an action cannot be brought, because the debtor ought to have the + whole of it allowed to him for payment; for otherwise, unless the whole + day on which payment was promised is past, it cannot be certain that + default has been made. + </p> + <p> + 3 If the terms of your stipulation run 'Do you promise to pay me ten aurei + a year so long as I live?' the obligation is deemed absolute, and the + liability perpetual, for a debt cannot be owed till a certain time only; + though if the promisee's heir sues for payment, he will be successfully + met by the plea of contrary agreement. + </p> + <p> + 4 A stipulation is conditional, when performance is made to depend on some + uncertain event in the future, so that it becomes actionable only on + something being done or omitted: for instance, 'Do you promise to give + five aurei if Titius is made consul?' If, however, a man stipulates in the + form 'Do you promise to give so and so, if I do not go up to the Capitol?' + the effect is the same as if he had stipulated for payment to himself at + the time of his death. The immediate effect of a conditional stipulation + is not a debt, but merely the expectation that at some time there will be + a debt: and this expectation devolves on the stipulator's heir, supposing + he dies himself before fulfilment of the condition. + </p> + <p> + 5 It is usual in stipulations to name a place for payment; for instance, + 'Do you promise to give at Carthage?' Such a stipulation as this, though + in its terms absolute, implies a condition that enough time shall be + allowed to the promisor to enable him to pay the money at Carthage. + Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay + today at Carthage?' the stipulation is void, because the performance of + the act to be promised is a physical impossibility. + </p> + <p> + 6 Conditions relating to past or present time either make the obligation + void at once, or have no suspensive operation whatever. Thus, in the + stipulation 'Do you promise to give so and so, if Titius has been consul, + or if Maevius is alive?' the promise is void, if the condition is not + satisfied; while if it is, it is binding at once: for events which in + themselves are certain do not suspend the binding force of an obligation, + however uncertain we ourselves may be about them. + </p> + <p> + 7 The performance or nonperformance of an act may be the object of a + stipulation no less than the delivery of property, though where this is + the case, it will be best to connect the nonperformance of the act to be + performed, or the performance of the act to be omitted, with a pecuniary + penalty to be paid in default, lest there be doubt as to the value of the + act or omission, which will make it necessary for the plaintiff to prove + to what damages he is entitled. Thus, if it be a performance which is + stipulated for, some such penalty should be added as in the following: 'If + so and so is not done, do you promise to pay ten aurei as a penalty?' And + if the performance of some acts, and the nonperformance of others, are + bargained for in the same stipulation, a clause of the following kind + should be added, 'If any default is made, either as contrary to what is + agreed upon, or by way of nonperformance, do you promise to pay a penalty + of ten aurei?' + </p> + <p> + <a name="link2H_4_0070" id="link2H_4_0070"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO + </h2> + <p> + DEBTORS + </p> + <p> + There may be two or more parties on either side in a stipulation, that is + to say, as promisors or promisees. Joint promises are so constituted by + the promisor answering, 'I promise,' after they have all first asked the + question; for instance, if after two promises have separately stipulated + from him, he answers, 'I promise to give so and so to each of you.' But if + he first promises to Titius, and then, on another's putting the question + to him, promises to him too, there will be two distinct obligations, + namely, one between him and each of the promisees, and they are not + considered joint promisees at all. The usual form to constitute two or + more joint promisors is as follows,—'Maevius, do you promise to give + five aurei? Seius, do you promise to give the same five aurei?' and in + answer they reply separately, 'I promise.' + </p> + <p> + 1 In obligations of this kind each joint promisee is owed the whole sum, + and the whole sum can be claimed from each joint promisor; and yet in both + cases but one payment is due, so that if one joint promisee receives the + debt, or one joint promisor pays it, the obligation is thereby + extinguished for all, and all are thereby released from it. + </p> + <p> + 2 Of two joint promisors one may be bound absolutely, while performance by + the other is postponed to a future day, or made to depend on a condition; + but such postponement or such condition in no way prevents the stipulator + from at once suing the one who was bound absolutely. + </p> + <p> + <a name="link2H_4_0071" id="link2H_4_0071"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVII. OF STIPULATIONS MADE BY SLAVES + </h2> + <p> + From his master's legal capacity a slave derives ability to be promisee in + a stipulation. Thus, as an inheritance in most matters represents the + legal 'person' of the deceased, whatever a slave belonging to it + stipulates for, before the inheritance is accepted, he acquires for the + inheritance, and so for the person who subsequently becomes heir. + </p> + <p> + 1 All that a slave acquires by a stipulation he acquires for his master + only, whether it was to that master, or himself, or his fellow slave, or + no one in particular that performance was to be made under the contract; + and the same principle applies to children in power, so far as they now + are instruments of acquisition for their father. + </p> + <p> + 2 When, however, what is stipulated for is permission to do some specific + act, that permission cannot extend beyond the person of the promisee: for + instance, if a slave stipulates for permission to cross the promisor's + land, he cannot himself be denied passage, though his master can. + </p> + <p> + 3 A stipulation by a slave belonging to joint owners enures to the benefit + of all of them in proportion to the shares in which they own him, unless + he stipulated at the bidding, or expressly in favour, of one of them only, + in which case that one alone is benefited. Where a jointly owned slave + stipulates for the transfer of property which cannot be acquired for one + of his two masters, the contract enures to the benefit of the other only: + for instance, where the stipulation is for the transfer of a thing which + already belongs to one of them. + </p> + <p> + <a name="link2H_4_0072" id="link2H_4_0072"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS + </h2> + <p> + Stipulations are either judicial, praetorian, conventional, or common: by + the latter being meant those which are both praetorian and judicial. + </p> + <p> + 1 Judicial stipulations are those which it is simply part of the judge's + duty to require; for instance, security against fraud, or for the pursuit + of a runaway slave, or (in default) for payment of his value. + </p> + <p> + 2 Those are praetorian, which the praetor is bound to exact simply in + virtue of his magisterial functions; for instance, security against + apprehended damage, or for payment of legacies by an heir. Under + praetorian stipulations we must include also those directed by the aedile, + for these too are based upon jurisdiction. + </p> + <p> + 3 Conventional stipulations are those which arise merely from the + agreement of the parties, apart from any direction of a judge or of the + praetor, and which one may almost say are of as many different kinds as + there are conceivable objects to a contract. + </p> + <p> + 4 Common stipulations may be exemplified by that by which a guardian gives + security that his ward's property will not be squandered or + misappropriated, which he is sometimes required to enter into by the + praetor, and sometimes also by a judge when the matter cannot be managed + in any other way; or, again, we might take the stipulation by which an + agent promises that his acts shall be ratified by his principal. + </p> + <p> + <a name="link2H_4_0073" id="link2H_4_0073"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIX. OF INVALID STIPULATIONS + </h2> + <p> + Anything, whether movable or immovable, which admits of private ownership, + may be made the object of a stipulation; 1 but if a man stipulates for the + delivery of a thing which either does not or cannot exist, such as + Stichus, who is dead but whom he though alive, or an impossible creature, + like a hippocentaur, the contract will be void. + </p> + <p> + 2 Precisely the same principles applies where a man stipulates for the + delivery of a thing which is sacred or religious, but which he thought was + a subject of human ownership, or of a thing which is public, that is to + say, devoted in perpetuity to the use and enjoyment of the people at + large, like a forum or theatre, or of a free man whom he thought a slave, + or of a thing which he is incapable of owning, or which is his own + already. And the fact that a thing which is public may become private + property, that a free man may become a slave, that the stipulator may + become capable of owning such and such a thing, or that such and such a + thing may cease to belong to him, will not avail to merely suspend the + force of the stipulation in these cases, but it is void from the outset. + Conversely, a stipulation which originally was perfectly good may be + avoided by the thing, which is its object, acquiring any of the characters + just specified through no fault of the promisor. And a stipulation, such + as 'do you promise to convey Lucius Titius when he shall be a slave' and + others like it, are also void from the beginning; for objects which by + their very nature cannot be owned by man cannot either in any way be made + the object of an obligation. + </p> + <p> + 3 If one man promises that another shall convey, or do so and so, as, for + instance, that Titius shall give five aurei, he will not be bound, though + he will if he promises to get Titius to give them. + </p> + <p> + 4 If a man stipulates for conveyance to, or performance in favour of, + another person who is not his paterfamilias, the contract is void; though + of course performance to a third person may be bargained for (as in the + stipulation 'do you promise to give to me or to Seius?'); where, though + the obligation is created in favour of the stipulator only, payment may + still be lawfully made to Seius, even against the stipulator's will, the + result of which, if it is done, being that the promisor is entirely + released from his obligation, while the stipulator can sue Seius by the + action of agency. If a man stipulates for payment of ten aurei to himself + and another who is not his paterfamilias, the contract will be good, + though there has been much doubt whether in such a case the stipulator can + sue for the whole sum agreed upon, or only half; the law is now settled in + favour of the smaller sum. If you stipulate for performance in favour of + one in your power, all benefit under the contract is taken by yourself, + for your words are as the words of your son, as his words are as yours, in + all cases in which he is merely an instrument of acquisition for you. + </p> + <p> + 5 Another circumstance by which a stipulation may be avoided is want of + correspondence between question and answer, as where a man stipulates from + you for payment of ten aurei, and you promise five, or vice versa; or + where his question is unconditional, your answer conditional, or vice + versa, provided only that in this latter case the difference is express + and clear; that is to say, if he stipulates for payment on fulfilment of a + condition, or on some determinate future day, and you answer: 'I. promise + to pay today,' the contract is void; but if you merely answer: 'I + promise,' you are held by this laconic reply to have undertaken payment on + the day, or subject to the condition specified; for it is not essential + that every word used by the stipulator should be repeated in the answer of + the promise. + </p> + <p> + 6 Again, no valid stipulation can be made between two persons of whom one + is in the power of the other. A slave indeed cannot be under an obligation + to either his master or anybody else: but children in power can be bound + in favour of any one except their own paterfamilias. + </p> + <p> + 7 The dumb, of course, cannot either stipulate or promise, nor can the + deaf, for the promisee in stipulation must hear the answer, and the + promisor must hear the question; and this makes it clear that we are + speaking of persons only who are stone deaf, not of those who (as it is + said) are hard of hearing. + </p> + <p> + 8 A lunatic cannot enter into any contract at all, because he does not + understand what he is doing. + </p> + <p> + 9 On the other hand a pupil can enter into any contract, provided that he + has his guardian's authority, when necessary, as it is for incurring an + obligation, though not for imposing an obligation on another person. + </p> + <p> + 10 This concession of legal capacity of disposition is manifestly + reasonable in respect of children who have acquired to some understanding, + for children below the age of seven years, or who have just passed that + age, resemble lunatics in want of intelligence. Those, however, who have + just completed their seventh year are permitted, by a beneficent + interpretation of the law, in order to promote their interests, to have + the same capacity as those approaching the age of puberty; but a child + below the latter age, who is in paternal power, cannot bind himself even + with his father's sanction. + </p> + <p> + 11 An impossible condition is one which, according to the course of + nature, cannot be fulfilled, as, for instance, if one says: 'Do you + promise to give if I. touch the sky with my finger?' But if the + stipulation runs: 'Do you promise to give if I do not touch the sky with + my finger?' it is considered unconditional, and accordingly can be sued + upon at once. + </p> + <p> + 12 Again, a verbal obligation made between persons who are not present + with one another is void. This rule, however, afforded contentious persons + opportunities of litigation, by alleging, after some interval, that they, + or their adversaries, had not been present on the occasion in question; + and we have therefore issued a constitution, addressed to the advocates of + Caesarea, in order with the more dispatch to settle such disputes, whereby + it is enacted that written documents in evidence of a contract which + recite the presence of the parties shall be taken to be indisputable proof + of the fact, unless the person, who resorts to allegations usually so + disgraceful, proves by the clearest evidence, either documentary or borne + by credible witnesses, that he or his adversary was elsewhere than alleged + during the whole day on which the document is stated to have been + executed. + </p> + <p> + 13 Formerly, a man could not stipulate that a thing should be conveyed to + him after his own death, or after that of the promisor; nor could one + person who was in another's power even stipulate for conveyance after that + person's death, because he was deemed to speak with the voice of his + parent or master; and stipulations for conveyance the day before the + promisee's or promisor's decease were also void. Stipulation, however, as + has already been remarked, derive their validity from the consent of the + contracting parties, and we therefore introduced a necessary emendation in + respect also of this rule of law, by providing that a stipulation shall be + good which bargains for performance either after the death, or the day + before the death, of either promisee or promisor. + </p> + <p> + 14 Again, a stipulation in the form: 'Do you promise to give today, if + such or such a ship arrives from Asia tomorrow?' was formerly void, as + being preposterous in its expression, because what should come last is put + first. Leo, however, of famous memory held that a preposterous stipulation + in the settlement of a dowry ought not to be rejected as void, and we have + determined to allow it perfect validity in every case, and not merely in + that in which it was formerly sanctioned. + </p> + <p> + 15 A stipulation, say by Titius, in the form: 'Do you promise to give when + I shall die' or 'when you shall die'? is good now, as indeed it always was + even under the older law. + </p> + <p> + 16 So too a stipulation for performance after the death of a third person + is good. + </p> + <p> + 17 If a document in evidence of a contract states that so and so promised, + the promise is deemed to have been given in answer to a preceding + question. + </p> + <p> + 18 When several acts of conveyance or performance are comprised in a + single stipulation, if the promisor simply answers: 'I promise to convey,' + he becomes liable on each and all of them, but if he answers that he will + convey only one or some of them, he incurs an obligation in respect of + those only which are comprised in his answer, there being in reality + several distinct stipulations of which only one or some are considered to + have acquired binding force: for for each act of conveyance or performance + there ought to be a separate question and a separate answer. + </p> + <p> + 19 As has been already observed, no one can validly stipulate for + performance to a person other than himself, for the purpose of this kind + of obligation is to enable persons to acquire for themselves that whereby + they are profited, and a stipulator is not profited if the conveyance is + made to a third person. Hence, if it be wished to make a stipulation in + favour of any such third person, a penalty should be stipulated for, to be + paid, in default of performance of that which is in reality the object of + the contract, to the party who otherwise would have no interest in such + performance; for when one stipulates for a penalty, it is not his interest + in what is the real contract which is considered, but only the amount to + be forfeited to him upon nonfulfilment of the condition. So that a + stipulation for conveyance to Titius, but made by some one else, is void: + but the addition of a penalty, in the form 'If you do not convey, do you + promise to pay me so many aurei?' makes it good and actionable. + </p> + <p> + 20 But where the promisor stipulates in favour of a third person, having + himself an interest in the performance of the promise, the stipulation is + good. For instance, if a guardian, after beginning to exercise his + tutorial functions, retires from their exercise in favour of his fellow + guardian, taking from him by stipulation security for the due charge of + the ward's property, he has a sufficient interest in the performance of + this promise, because the ward could have sued him in case of + maladministration, and therefore the obligation is binding. So too a + stipulation will be good by which one bargains for delivery to one's + agent, or for payment to one's creditor, for in the latter case one may be + so far interested in the payment that, if it not be made, one will become + liable to a penalty or to having a foreclosure of estates which one has + mortgaged. + </p> + <p> + 21 Conversely, he who promises that another shall do so and so is not + bound unless he promises a penalty in default; + </p> + <p> + 22 and, again, a man cannot validly stipulate that property which will + hereafter be his shall be conveyed to him as soon as it becomes his own. + </p> + <p> + 23 If a stipulator and the promisor mean different things, there is no + contractual obligation, but it is just as if no answer had been made to + the question; for instance, if one stipulates from you for Stichus, and + you think he means Pamphilus, whose name you believed to be Stichus. + </p> + <p> + 24 A promise made for an illegal or immoral purpose, as, for instance, to + commit a sacrilege or homicide, is void. + </p> + <p> + 25 If a man stipulates for performance on the fulfilment of a condition, + and dies before such fulfilment, his heir can sue on the contract when it + occurs: and the heir of the promisor can be sued under the same + circumstances. + </p> + <p> + 26 A stipulation for a conveyance this year, or this month, cannot be sued + upon until the whole year, or the whole month, has elapsed: + </p> + <p> + 27 and similarly the promisee cannot sue immediately upon a stipulation + for the conveyance of an estate or a slave, but only after allowing a + sufficient interval for the conveyance to be made. + </p> + <p> + <a name="link2H_4_0074" id="link2H_4_0074"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XX. OF FIDEJUSSORS OR SURETIES + </h2> + <p> + Very often other persons, called fidejussors or sureties, are bound for + the promisor, being taken by promises as additional security. + </p> + <p> + 1 Such sureties may accompany any obligation, whether real, verbal, + literal or consensual: and it is immaterial even whether the principal + obligation be civil or natural, so that a man may go surety for the + obligation of a slave either to a stranger or to his master. + </p> + <p> + 2 A fidejussor is not only bound himself, but his obligation devolves also + on his heir' 3 and the contract of suretyship may be entered into before + no less than after the creation of the principal obligation. + </p> + <p> + 4 If there are several fidejussors to the same obligation, each of them, + however many they are, is liable for the whole amount, and the creditor + may sue whichever he chooses for the whole; but by the letter of Hadrian + he may be compelled to sue for only an aliquot part, determined by the + number of sureties who are solvent at the commencement of the action: so + that if one of them is insolvent at that time the liability of the rest is + proportionately increased. Thus, if one fidejussor pay the whole amount, + he alone suffers by the insolvency of the principal debtor; but this is + his own fault, as he might have availed himself of the letter of Hadrian, + and required that the claim should be reduced to his rateable portion. + </p> + <p> + 5 Fidejussors cannot be bound for more than their principal, for their + obligation is but accessory to the latter's, and the accessory cannot + contain more than the principal; but they can be bound for less. Thus, if + the principal debtor promised ten aurei, the fidejussor can well be bound + for five, but not vice versa; and if the principal's promise is absolute, + that of the fidejussor may be conditional, though a conditional promise + cannot be absolutely guaranteed, for more and less is to be understood of + time as well as of quantity, immediate payment being regarded as more, and + future payment as less. + </p> + <p> + 6 For the recovery of anything paid by him for the principal the + fidejussor can sue the latter by the action on agency. + </p> + <p> + 7 A fidejussor may be taken in Greek, by using the expressions 'tei emei + pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be taken + as equivalent to 'lego.' + </p> + <p> + 8 It is to be observed that in the stipulations of fidejussors the general + rule is that whatever is stated in writing to have been done is taken to + have really been done; and, accordingly, it is settled law that if a man + signs his name to a paper stating that he became a fidejussor, all + formalities are presumed to have been duly observed. + </p> + <p> + <a name="link2H_4_0075" id="link2H_4_0075"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXI. OF LITERAL OBLIGATION + </h2> + <p> + Formerly there was a kind of obligation made by writing, and said to be + contracted by the entry of a debt in a ledger; but such entries have + nowadays gone out of use. Of course, if a man states in writing that he + owes money which has never been paid over to him, he cannot be allowed, + after a considerable interval, to defend himself by the plea that the + money was not, in fact, advanced; for this is a point which has frequently + been settled by imperial constitutions. The consequence is, that even at + the present day a person who is estopped from this plea is bound by his + written signature, which (even of course where there is no stipulation) is + ground for a condiction. The length of time after which this defence could + not be pleaded was formerly fixed by imperial constitutions at five years; + but it has been reduced by our constitution, in order to save creditors + from a more extended risk of being defrauded of their money, so that now + it cannot be advanced after the lapse of two years from the date of the + alleged payment. + </p> + <p> + <a name="link2H_4_0076" id="link2H_4_0076"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXII. OF OBLIGATION BY CONSENT + </h2> + <p> + Obligations contracted by mere consent are exemplified by sale, hire, + partnership and agency, which are called consensual contracts because no + writing, nor the presence of the parties, nor any delivery is required to + make the obligation actionable, but the consent of the parties is + sufficient. Parties who are not present together, therefore, can form + these contracts by letter, for instance, or by messenger: and they are in + their nature bilateral, that is, both parties incur a reciprocal + obligation to perform whatever is just and fair, whereas verbal contracts + are unilateral, one party being promisee, and the other alone promisor. + </p> + <p> + <a name="link2H_4_0077" id="link2H_4_0077"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIII. OF PURCHASE AND SALE + </h2> + <p> + The contract of purchase and sale is complete immediately the price is + agreed upon, and even before the price or as much as any earnest is paid: + for earnest is merely evidence of the completion of the contract. In + respect of sales unattested by any written evidence this is a reasonable + rule, and so far as they are concerned we have made no innovations. By one + of our constitutions, however, we have enacted, that no sale effected by + an agreement in writing shall be good or binding, unless that agreement is + written by the contracting parties themselves, or, if written by some one + else, is at least signed by them, or finally, if written by a notary, is + duly drawn by him and executed by the parties. So long as any of these + requirements is unsatisfied, there is room to retract, and either + purchaser or vendor may withdraw from the agreement with impunity—provided, + that is to say, that no earnest has been given. Where earnest has been + given, and either party refuses to perform the contract, that party, + whether the agreement be in writing or not, if purchaser forfeits what he + has given, and if vendor is compelled to restore double of what he has + received, even though there has been no express agreement in the matter of + earnest. + </p> + <p> + 1 It is necessary that the price should be settled, for without a price + there can be no purchase and sale, and it ought to be a fixed and certain + price. For instance, where the parties agreed that the thing should be + sold at a price to be subsequently fixed by Titius, the older jurists + doubted much whether this was a valid contract of sale or not. The doubt + has been settled in the following way by our decision; if the third person + named actually fixes the price, it must certainly be paid, as settled by + him, and the thing must be delivered, in order to give effect to the sale; + the purchaser (if not fairly treated) suing by the action on purchase, and + the vendor by the action on sale. But if the third person named will not + or cannot fix the price, the sale will be void, because no price has been + settled. This rule, which we have adopted with regard to sales, may + reasonably be extended also to contracts of hire. + </p> + <p> + 2 The price, too, should be in money; for it used to be much disputed + whether anything else, such as a slave, a piece of land, or a robe, could + be treated as a price. Sabinus and Cassius held the affirmative, + explaining thus the common theory that exchange is a species, and the + oldest species, of purchase and sale; and in their support they quoted the + lines of Homer, who says in a certain passage that the army of the Greeks + procured themselves wine by giving other things in exchange, the actual + words being as follow: 'then the longhaired Greeks bought themselves wine, + some with bronze, some with shining iron, some with hides, some with live + oxen, some with slaves.' The other school maintained the negative, and + distinguished between exchange on the one hand, and purchase and sale on + the other: for if an exchange were the same thing as a sale, it would be + impossible to determine which is the thing sold, and which is the price, + and both things cannot be regarded in each of these characters. The + opinion, however, of Proculus, who affirmed that exchange was a species of + contract apart by itself, and distinct from sale, has deservedly + prevailed, as it is confirmed by other lines from Homer, and by still more + cogent reasons, and this has been admitted by preceding Emperors, and is + fully stated in our Digest. + </p> + <p> + 3 As soon as the contract of sale is concluded—that is, as we have + said, as soon as the price is agreed upon, if the contract is not in + writing—the thing sold is immediately at the risk of the purchaser, + even though it has not yet been delivered to him. Accordingly, if a slave + dies, or is injured in any part of his body, or if a house is either + totally or partially burnt down, or if a piece of land is wholly or + partially swept away by a river flood, or is reduced in acreage by an + inundation, or made of less value by a storm blowing down some of its + trees, the loss falls on the purchaser, who must pay the price even though + he has not got what he purchased. The vendor is not responsible and does + not suffer for anything not due to any design or fault of his own. If, + however, after the purchase of a piece of land, it receives an increase by + alluvion, it is the purchaser who profits thereby: for the profit ought to + belong to him who also bears the risk. And if a slave who has been sold + runs away, or is stolen, without any design or fault of the vendor, one + should look to see whether the latter expressly undertook to keep him + safely until delivery was made; for, if he did this, the loss falls upon + him, though otherwise he incurs no liability: and this is a rule which + applies to all animals and other objects whatsoever. The vendor, however, + will be bound to transfer to the purchaser all his rights of action for + the recovery of the object or damages, for, not having yet delivered it to + the purchaser, he still remains its owner, and the same holds good of the + penal actions on theft and on unlawful damage. + </p> + <p> + 4 A sale may be made conditionally as well as absolutely. The following is + an example of a conditional sale: 'If Stichus meets with your approval + within a certain time, he shall be purchased by you for so many aurei.' + </p> + <p> + 5 If a man buys a piece of land which is sacred, religious, or public, + such as a forum or basilica, knowing it to be such, the purchase is void. + But if the vendor has fraudulently induced him to believe that what he was + buying was not sacred, or was private property, as he cannot legally have + what he contracted for, he can bring the action on purchase to recover + damages for what he has lost by the fraud; and the same rule applies to + the purchase of a free man represented by the vendor to be a slave. + </p> + <p> + <a name="link2H_4_0078" id="link2H_4_0078"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIV. OF LETTING AND HIRING + </h2> + <p> + The contract of hire resembles very closely the contract of sale, and the + same rules of law apply to both. Thus, as the contract of sale is + concluded as soon as the price is agreed upon, so the contract of hire is + held to be concluded as soon as the sum to be paid for the hiring is + settled, and from that moment the letter has an action on the letting, and + the hirer on the hiring. + </p> + <p> + 1 What we have said above as to a sale in which the price is left to be + fixed by a third person must be understood to apply also to a contract of + hire in which the amount to be paid for hire is left to be fixed in the + same way. Consequently, if a man gives clothes to a fuller to clean or + finish, or to a tailor to mend, and the amount of hire is not fixed at the + time, but left to subsequent agreement between the parties, a contract of + hire cannot properly be said to have been concluded, but an action is + given on the circumstances, as amounting to an innominate contract. + </p> + <p> + 2 Again, a question often arose in connexion with the contract of hire + similar to that which was so common, namely, whether an exchange was a + sale. For instance, what is the nature of the transaction if a man gives + you the use or enjoyment of a thing, and receives in return the use or + enjoyment of another thing from you? It is now settled that this is not a + contract of hire, but a kind of contract apart by itself. Thus, if a man + had one ox, and his neighbour another, and they agreed that each should in + turn lend the other his ox for ten days to make use of, and then one of + the oxen died while working for the man to whom it did not belong, an + action cannot be brought on hire, nor on a loan for use, for a loan for + use ought to be gratuitous: but an action should be brought as on an + innominate contract. + </p> + <p> + 3 So nearly akin, indeed, is purchase and sale, to letting and hiring, + that in some cases it is a question to which class of the two a contract + belongs. As an instance may be taken those lands which are delivered over + to be enjoyed for ever, upon the terms, that is to say, that so long as + the rent is paid to the owner it shall not be lawful for the latter to + take the lands away from either the original hirer, or his heir, or any + one else to whom he or his heirs has conveyed them by sale, gift, dowry, + or in any other way whatsoever. The questionings of the earlier lawyers, + some of whom thought this kind of contract a hiring, and others a sale, + occasioned the enactment of the statute of Zeno, which determined that + this contract of emphyteusis, as it is called, was of a peculiar nature, + and should not be included under either hire or sale, but should rest on + the terms of the agreement in each particular case: so that if anything + were agreed upon between the parties, this should bind them exactly as if + it were inherent in the very nature of the contract; while if they did not + agree expressly at whose risk the land should be, it should be at that of + the owner in case of total destruction, and at that of the tenant, if the + injury were merely partial. And these rules we have adopted in our + legislation. + </p> + <p> + 4 Again, if a goldsmith agrees to make Titius rings of a certain weight + and pattern out of his own gold for, say, ten aurei, it is a question + whether the contract is purchase and sale or letting and hiring. Cassius + says the material is bought and sold, the labour let and hired; but it is + now settled that there is only a purchase and sale. But if Titius provided + the gold, and agreed to pay him for his work, the contract is clearly a + letting and hiring. + </p> + <p> + 5 The hirer ought to observe all the terms of the contract, and in the + absence of express agreement his obligations should be ascertained by + reference to what is fair and equitable. Where a man has either given or + promised for hire for the use of clothes, silver, or a beast of burden, he + is required in his charge of it to show as much care as the most diligent + father of a family shows in his own affairs; if he do this, and still + accidentally lose it, he will be under no obligation to restore either it + or its value. + </p> + <p> + 6 If the hirer dies before the time fixed for the termination of the + contract has elapsed, his heir succeeds to his rights and obligations in + respect thereof. + </p> + <p> + <a name="link2H_4_0079" id="link2H_4_0079"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXV. OF PARTNERSHIP + </h2> + <p> + A partnership either extends to all the goods of the partners, when the + Greeks call it by the special name of 'koinopraxia,' or is confined to a + single sort of business, such as the purchase and sale of slaves, oil, + wine, or grain. + </p> + <p> + 1 If no express agreement has been made as to the division of the profit + and loss, an equal division of both is understood to be intended, but if + it has, such agreement ought to be carried into effect; and there has + never been any doubt as to the validity of a contract between two partners + that one shall take twothirds of the profit and bear twothirds of the + loss, and that the remaining third shall be taken and borne respectively + by the other. + </p> + <p> + 2 If Titius and Seius agreed that the former should take twothirds of the + profits, and bear only onethird of the loss, and that the latter should + bear twothirds of the loss, and take only onethird of the profits, it has + been made a question whether such an agreement ought to be held valid. + Quintus Mucius thought such an arrangement contrary to the very nature of + partnership, and therefore not to be supported: but Servius Sulpicius, + whose opinion has prevailed, was of a different view, because the services + of a particular partner are often so valuable that it is only just to + admit him to the business on more favourable terms than the rest. It is + certain that a partnership may be formed on the terms that one partner + shall contribute all the capital, and that the profits shall be divided + equally, for a man's services are often equivalent to capital. Indeed, the + opinion of Quintus Mucius is now so generally rejected, that it is + admitted to be a valid contract that a partner shall take a share of the + profits, and bear no share in the loss, which indeed Servius, consistently + with his opinion, maintained himself. This of course must be taken to mean + that if there is a profit on one transaction, and a loss on another, a + balance should be struck, and only the net profit be considered as + profits. + </p> + <p> + 3 It is quite clear that if the shares are expressed in one event only, as + for instance in the event of profit, but not in the event of loss, or vice + versa, the same proportions must be observed, in the event of which no + mention has been made, as in the other. + </p> + <p> + 4 The continuance of partnership depends on the continuing consent of the + members; it is dissolved by notice of withdrawal from any one of them. But + of course if the object of a partner in withdrawing from the partnership + is to fraudulently keep for himself some accruing gain—for instance, + if a partner in all goods succeeds to an inheritance, and withdraws from + the partnership in order to have exclusive possession thereof—he + will be compelled to divide this gain with his partners; but what he gains + undesignedly after withdrawing he keeps to himself, and his partner always + has the exclusive benefit of whatever accrues to him after such + withdrawal. + </p> + <p> + 5 Again, a partnership is dissolved by the death of a partner, for when a + man enters into a contract of partnership, he selects as his partner a + definite person. Accordingly, a partnership based on the agreement of even + several persons is dissolved by the death of one of them, even though + several others survive, unless when the contract was made it was otherwise + agreed. + </p> + <p> + 6 So too a partnership formed for the attainment of some particular object + is terminated when that object is attained. + </p> + <p> + 7 It is clear too that a partnership is dissolved by the forfeiture of the + property of one of the partners, for such an one, as he is replaced by a + successor, is reckoned civilly dead. + </p> + <p> + 8 So again, if one of the partners is in such embarrassed circumstances as + to surrender all his property to his creditors, and all that he possessed + is sold to satisfy the public or private claims upon him, the partnership + is dissolved, though if the members still agree to be partners, a new + partnership would seem to have begun. + </p> + <p> + 9 It has been doubted whether one partner is answerable to another on the + action of partnership for any wrong less than fraud, like the bailee in a + deposit, or whether he is not suable also for carelessness, that is to + say, for inattention and negligence; but the latter opinion has now + prevailed, with this limitation, that a partner cannot be required to + satisfy the highest standard of carefulness, provided that in partnership + business he shows as much diligence as he does in his own private affairs: + the reason for this being that if a man chooses as his partner a careless + person, he has no one to blame but himself. + </p> + <p> + <a name="link2H_4_0080" id="link2H_4_0080"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXVI. OF AGENCY + </h2> + <p> + Of the contract of agency there are five modes. A man gives you a + commission either for his own exclusive benefit, or for his own and yours + together, or for that of some third person, or for his own and the third + person's, or for the third person's and yours. A commission given simply + for the sake of the agent gives rise in reality to no relation of agency, + and accordingly no obligation comes into existence, and therefore no + action. + </p> + <p> + 1 A commission is given solely for the benefit of the principal when, for + instance, the latter instructs you to manage his business, to buy him a + piece of land, or to enter into a stipulation as surety for him. + </p> + <p> + 2 It is given for your benefit and for that of your principal together + when he, for instance, commissions you to lend money at interest to a + person who borrows it for your principal's benefit; or where, on your + wishing to sue him as surety for some one else, he commissions you to sue + his principal, himself undertaking all risk: or where, at his risk, you + stipulate for payment from a person whom he substitutes for himself as + your debtor. + </p> + <p> + 3 It is given for the benefit of a third person when, for instance, some + one commissions you to look after Titius's affairs as general agent, or to + buy Titius a piece of land, or to go surety for him. + </p> + <p> + 4 It is for the benefit of the principal and a third person when, for + instance, some one instructs you to look after affairs common to himself + and Titius, or to buy an estate for himself and Titius, or to go surety + for them jointly. + </p> + <p> + 5 It is for the benefit of yourself and a third person when, for instance, + some one instructs you to lend money at interest to Titius; if it were to + lend money free of interest, it would be for the benefit of the third + person only. + </p> + <p> + 6 It is for your benefit alone if, for instance, some one commissions you + to invest your money in the purchase of land rather than to lend it at + interest, or vice versa. But such a commission is not really so much a + commission in the eye of the law as a mere piece of advice, and + consequently will not give rise to an obligation, for the law holds no one + responsible as on agency for mere advice given, even if it turns out ill + for the person advised, for every one can find out for himself whether + what he is advised to do is likely to turn out well or ill. Consequently, + if you have money lying idle in your cashbox, and on so and so's advice + buy something with it, or put it out at interest, you cannot sue that + person by the action on agency although your purchase or loan turns out a + bad speculation; and it has even been questioned, on this principle, + whether a man is suable on agency who commissions you to lend money to + Titius; but the prevalent opinion is that of Sabinus, that so specific a + recommendation is sufficient to support an action, because (without it) + you would never have lent your money to Titius at all. + </p> + <p> + 7 So too instructions to commit an unlawful or immoral act do not create a + legal obligation—as if Titius were to instigate you to steal, or to + do an injury to the property or person of some one else; and even if you + act on his instructions, and have to pay a penalty in consequence, you + cannot recover its amount from Titius. + </p> + <p> + 8 An agent ought not to exceed the terms of his commission. Thus, if some + one commissions you to purchase an estate for him, but not to exceed the + price of a hundred aurei, or to go surety for Titius up to that amount, + you ought not in either transaction to exceed the sum specified: for + otherwise you will not be able to sue him on the agency. Sabinus and + Cassius even thought that in such a case you could not successfully sue + him even for a hundred aurei, though the leaders of the opposite school + differed from them, and the latter opinion is undoubtedly less harsh. If + you buy the estate for less, you will have a right of action against him, + for a direction to buy an estate for a hundred aurei is regarded as an + implied direction to buy, if possible, for a smaller sum. + </p> + <p> + 9 The authority given to an agent duly constituted can be annulled by + revocation before he commences to act upon it. + </p> + <p> + 10 Similarly, the death of either the principal or the agent before the + latter commences to act extinguishes the agent's authority; but equity has + so far modified this rule that if, after the death of a principal and + without having notice of his decease, an agent executes his commission, he + can sue on the agency: for otherwise the law would be penalizing a + reasonable and unavoidable ignorance. Similar to this is the rule, that + debtors who pay a manumitted steward, say, of Titius, without notice of + his manumission, are discharged from liability, though by the strict + letter of the law they are not discharged, because they have not paid the + person whom they were bound to pay. + </p> + <p> + 11 It is open to every one to decline a commission of agency, but + acceptance must be followed by execution, or by a prompt resignation, in + order to enable the principal to carry out his purpose either personally + or by the appointment of another agent. Unless the resignation is made in + such time that the principal can attain his object without suffering any + prejudice, an action will lie at his suit, in default of proof by the + agent that he could not resign before, or that his resignation, though + inconvenient, was justifiable. + </p> + <p> + 12 A commission of agency may be made to take effect from a specified + future day, or may be subject to a condition. + </p> + <p> + 13 Finally, it should be observed that unless the agent's services are + gratuitous, the relation between him and the principal will not be agency + proper, but some other kind of contract; for if a remuneration is fixed, + the contract is one of hiring. And generally we may say that in all cases + where, supposing a man's services are gratuitous, there would be a + contract of agency or deposit, there is held to be a contract of hiring if + remuneration is agreed upon; consequently, if you give clothes to a fuller + to clean or to finish, or to a tailor to mend, without agreeing upon or + promising any remuneration, you can be sued by the action on agency. + </p> + <p> + <a name="link2H_4_0081" id="link2H_4_0081"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION + </h2> + <p> + Having enumerated the different kinds of contracts, let us now examine + those obligations also which do not originate, properly speaking, in + contract, but which, as they do not arise from a delict, seem to be + quasicontractual. + </p> + <p> + 1 Thus, if one man has managed the business of another during the latter's + absence, each can sue the other by the action on uncommissioned agency; + the direct action being available to him whose business was managed, the + contrary action to him who managed it. It is clear that these actions + cannot properly be said to originate in a contract, for their peculiarity + is that they lie only where one man has come forward and managed the + business of another without having received any commission so to do, and + that other is thereby laid under a legal obligation even though he knows + nothing of what has taken place. The reason of this is the general + convenience; otherwise people might be summoned away by some sudden event + of pressing importance, and without commissioning any one to look after + and manage their affairs, the result of which would be that during their + absence those affairs would be entirely neglected: and of course no one + would be likely to attend to them if he were to have no action for the + recovery of any outlay he might have incurred in so doing. Conversely, as + the uncommissioned agent, if his management is good, lays his principal + under a legal obligation, so too he is himself answerable to the latter + for an account of his management; and herein he must show that he has + satisfied the highest standard of carefulness, for to have displayed such + carefulness as he is wont to exercise in his own affairs is not enough, if + only a more diligent person could have managed the business better. + </p> + <p> + 2 Guardians, again, who can be sued by the action on guardianship, cannot + properly be said to be bound by contract, for there is no contract between + guardian and ward: but their obligation, as it certainly does not + originate in delict, may be said to be quasicontractual. In this case too + each party has a remedy against the other: not only can the ward sue the + guardian directly on the guardianship, but the guardian can also sue the + ward by the contrary action of the same name, if he has either incurred + any outlay in managing the ward's property, or bound himself on his + behalf, or pledged his own property as security for the ward's creditors. + </p> + <p> + 3 Again, where persons own property jointly without being partners, by + having, for instance, a joint bequest or gift made to them, and one of + them is liable to be sued by the other in a partition suit because he + alone has taken its fruits, or because the plaintiff has laid out money on + it in necessary expenses: here the defendant cannot properly be said to be + bound by contract, for there has been no contract made between the + parties; but as his obligation is not based on delict, it may be said to + be quasicontractual. + </p> + <p> + 4 The case is exactly the same between joint heirs, one of whom is liable + to be sued by the other on one of these grounds in an action for partition + of the inheritance. + </p> + <p> + 5 So, too, the obligation of an heir to discharge legacies cannot properly + be called contractual, for it cannot be said that the legatee has + contracted at all with either the heir or the testator: yet, as the heir + is not bound by a delict, his obligation would seem to be + quasicontractual. + </p> + <p> + 6 Again, a person to whom money not owed is paid by mistake is thereby + laid under a quasicontractual obligation; an obligation, indeed, which is + so far from being contractual, that, logically, it may be said to arise + from the extinction rather than from the formation of a contract; for when + a man pays over money, intending thereby to discharge a debt, his purpose + is clearly to loose a bond by which he is already bound, not to bind + himself by a fresh one. Still, the person to whom money is thus paid is + laid under an obligation exactly as if he had taken a loan for + consumption, and therefore he is liable to a condiction. + </p> + <p> + 7 Under certain circumstances money which is not owed, and which is paid + by mistake, is not recoverable; the rule of the older lawyers on this + point being that wherever a defendant's denial of his obligation is + punished by duplication of the damages to be recovered—as in actions + under the lex Aquilia, and for the recovery of a legacy—he cannot + get the money back on this plea. The older lawyers, however, applied this + rule only to such legacies of specific sums of money as were given by + condemnation; but by our constitution, by which we have assimilated + legacies and trust bequests, we have made this duplication of damages on + denial an incident of all actions for their recovery, provided the legatee + or beneficiary is a church, or other holy place honoured for its devotion + to religion and piety. Such legacies, although paid when not due, cannot + be reclaimed. + </p> + <p> + <a name="link2H_4_0082" id="link2H_4_0082"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS + </h2> + <p> + Having thus gone through the classes of contractual and quasicontractual + obligations, we must remark that rights can be acquired by you not only on + your own contracts, but also on those of persons in your power—that + is to say, your slaves and children. What is acquired by the contracts of + your slaves becomes wholly yours; but the acquisitions of children in your + power by obligations must be divided on the principle of ownership and + usufruct laid down in our constitution: that is to say, of the material + results of an action brought on an obligation made in favour of a son the + father shall have the usufruct, though the ownership is reserved to the + son himself: provided, of course, that the action is brought by the + father, in accordance with the distinction drawn in our recent + constitution. + </p> + <p> + 1 Freemen also, and the slaves of another person, acquire for you if you + possess them in good faith, but only in two cases, namely, when they + acquire by their own labour, or in dealing with your property. + </p> + <p> + 2 A usufructuary or usuary slave acquires under the same conditions for + him who has the usufruct or use. + </p> + <p> + 3 It is settled law that a slave jointly owned acquires for all his owners + in the proportion of their property in him, unless he names one + exclusively in a stipulation, or in the delivery of property to himself, + in which case he acquires for him alone; as in the stipulation 'do you + promise to convey to Titius, my master?' If it was by the direction of one + of his joint owners only that he entered into a stipulation, the effect + was formerly doubted; but now it has been settled by our decision that (as + is said above) under such circumstances he acquires for him only who gave + him the order. + </p> + <p> + <a name="link2H_4_0083" id="link2H_4_0083"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED + </h2> + <p> + An obligation is always extinguished by performance of what is owed, or by + performance of something else with the creditor's assent. It is immaterial + from whom the performance proceeds—be it the debtor himself, or some + one else on his behalf: for on performance by a third person the debtor is + released, whether he knows of it or not, and even when it is against his + will. Performance by the debtor releases, besides himself, his sureties, + and conversely performance by a surety releases, besides himself, the + principal debtor. + </p> + <p> + 1 Acceptilation is another mode of extinguishing an obligation, and is, in + its nature, an acknowledgement of a fictitious performance. For instance, + if something is due to Titius under a verbal contract, and he wishes to + release it, it can be done by his allowing the debtor to ask 'that which I + promised thee has thou received?' and by his replying 'I have received + it.' An acceptilation can be made in Greek, provided the form corresponds + to that of the Latin words, as 'exeis labon denaria tosa; exo labon.' This + process, as we said, discharges only obligations which arise from verbal + contract, and no others, for it seemed only natural that where words can + bind words may also loose: but a debt due from any other cause may be + transformed into a debt by stipulation, and then released by an imaginary + verbal payment or acceptilation. So, too, as a debt can be lawfully + discharged in part, so acceptilation may be made of part only. + </p> + <p> + 2 A stipulation has been invented, commonly called Aquilian, by which an + obligation of any kind whatsoever can be clothed in stipulation form, and + then extinguished by acceptilation; for by this process any kind of + obligation may be novated. Its terms, as settled by Gallus Aquilius, are + as follow: 'Whatever, and on whatsoever ground, you are or shall be + compellable to convey to or do for me, either now or on a future specified + day, and for whatsoever I have or shall have against you an action + personal or real, or any extraordinary remedy, and whatsoever of mine you + hold or possess naturally or civilly, or would possess, or now fail to + possess through some wilful fault of your own—as the value of each + and all of these claims Aulua Agerius stipulated for the payment of such + and such a sum, and payment was formally promised by Numerius Negidius.' + Then conversely, Numerius Negidius asked Aulus Agerius, 'hast thou + received the whole of what I have today engaged, by the Aquilian + stipulation, to pay thee?' to which Aulus Agerius replied 'I have it, and + account it received.' + </p> + <p> + 3 Novation is another mode of extinguishing an obligation, and takes place + when you owe Seius a sum, and he stipulates for payment thereof from + Titius; for the intervention of a new person gives birth to a new + obligation, and the first obligation is transformed into the second, and + ceases to exist. Sometimes indeed the first stipulation is avoided by + novation even though the second is of no effect: for instance, if you owe + Titius a sum, and he stipulates for payment thereof from a pupil without + his guardian's authority, he loses his claim altogether, for you, the + original debtor, are discharged, and the second obligation is + unenforceable. The same does not hold if one stipulate from a slave; for + then the former debtor continues bound as fully as if one had stipulated + from no one. But when the original debtor is the promisor, a second + stipulation produces a novation only if it contains something new—if + a condition, for instance, or a term, or a surety be added, or taken away—though, + supposing the addition of a condition, we must be understood to mean that + a novation is produced only if the condition is accomplished: if it fails, + the prior obligation continues in force. Among the older lawyers it was an + established rule, that a novation was effected only when it was with that + intention that the parties entered into the second obligation; but as this + still left it doubtful when the intention was present and when absent, + various presumptions were established as to the matter by different + persons in different cases. We therefore issued our constitution, enacting + most clearly that no novation shall take place unless the contracting + parties expressly state their intention to be the extinction of the prior + obligation, and that in default of such statement, the first obligation + shall subsist, and have the second also added to it: the result being two + obligations resting each on its own independent ground, as is prescribed + by the constitution, and as can be more fully ascertained by perusing the + same. + </p> + <p> + 4 Moreover, those obligations which are contracted by consent alone are + dissolved by a contrary agreement. For instance, if Titius and Seius agree + that the latter shall buy an estate at Tusculum for a hundred aurei, and + then before execution on either side by payment of the price or delivery + of the estate they arrange to abandon the sale, they are both released. + The case is the same with hire and the other contracts which are formed by + consent alone. + </p> + <p> + <a name="link2H_4_0084" id="link2H_4_0084"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + BOOK IV. + </h2> + <p> + <a name="link2H_4_0085" id="link2H_4_0085"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE I. OF OBLIGATIONS ARISING FROM DELICT + </h2> + <p> + Having treated in the preceding Book of contractual and quasicontractual + obligations, it remains to inquire into obligations arising from delict. + The former, as we remarked in the proper place, are divided into four + kinds; but of these latter there is but one kind, for, like obligations + arising from real contracts, they all originate in some act, that is to + say, in the delict itself, such as a theft, a robbery, wrongful damage, or + an injury. + </p> + <p> + 1 Theft is a fraudulent dealing with property, either in itself, or in its + use, or in its possession: an offence which is prohibited by natural law. + </p> + <p> + 2 The term furtum, or theft, is derived either from furvum, meaning + 'black,' because it is effected secretly and under cover, and usually by + night: or from fraus, or from ferre, meaning 'carrying off'; or from the + Greek word phor, thief, which indeed is itself derived from pherein, to + carry off. + </p> + <p> + 3 There are two kinds of theft, theft detected in the commission, and + simple theft: the possession of stolen goods discovered upon search, and + the introduction of stolen goods, are not (as will appear below) so much + specific kinds of theft as actionable circumstances connected with theft. + A thief detected in the commission is termed by the Greeks ep'autophoro; + in this kind is included not only he who is actually caught in the act of + theft, but also he who is detected in the place where the theft is + committed; for instance, one who steals from a house, and is caught before + he has got outside the door; or who steals olives from an olive garden, or + grapes from a vineyard, and is caught while still in the olive garden or + vineyard. And the definition of theft detected in the commission must be + even further extended, so as to include the thief who is caught or even + seen with the stolen goods still in his hands, whether the place be public + or private, and whether the person who sees or catches him be the owner of + the property, or some third person, provided he has not yet escaped to the + place where he intended to take and deposit his booty: for if he once + escapes there, it is not theft detected in the commission, even if he be + found with the stolen goods upon him. What is simple theft is clear from + what has been said: that is to say, it is all theft which is not detected + in the commission. + </p> + <p> + 4 The offence of discovery of stolen goods occurs when a person's premises + are searched in the presence of witnesses, and the stolen property is + found thereon; this makes him liable, even though innocent of theft, to a + special action for receiving stolen goods. To introduce stolen goods is to + pass them off to a man, on whose premises they are discovered, provided + this be done with the intent that they shall be discovered on his premises + rather than on those of the introducer. The man on whose premises they are + found may sue the latter, though innocent of theft, in an action for the + introduction of stolen goods. There is also an action for refusal of + search, available against him who prevents another who wishes to look in + the presence of witnesses for stolen property; and finally, by the action + for nonproduction of stolen goods, a penalty is imposed by the praetor's + edict on him who has failed to produce stolen property which is searched + for and found on his premises. But the lastnamed actions, namely, those + for receiving stolen goods, for introducing them, for refusal of search, + and for nonproduction, have now become obsolete: for the search for such + property is no longer made in the old fashion, and accordingly these + actions went out of use also. It is obvious, however, that any one who + knowingly receives and hides stolen property may be sued by the action for + simple theft. + </p> + <p> + 5 The penalty for theft detected in the commission is four times the + value, and for simple theft twice the value, of the property stolen, + whether the thief be a slave or a free person. + </p> + <p> + 6 Theft is not confined to carrying away the property of another with the + intent of appropriation, but comprises also all corporeal dealing with the + property of another against the will of the owner. Thus, for a pawnee to + use the thing which he has in pawn, or to use a thing committed to one's + keeping as a deposit, or to put a thing which is lent for use to a + different use than that for which it was lent, is theft; to borrow plate, + for instance, on the representation that the borrower is going to + entertain his friends, and then to carry it away into the country: or to + borrow a horse for a drive, and then to take it out of the neighbourhood, + or like the man in the old story, to take it into battle. + </p> + <p> + 7 With regard, however, to those persons who put a thing lent for use to a + different purpose than the lender contemplated, the rule is that they are + guilty of theft only if they know it to be contrary to the will of the + owner, and that if he had notice he would refuse permission; but if they + believe that he would give permission, it is not theft: and the + distinction is just, for there is no theft without unlawful intention. + </p> + <p> + 8 It is also said not to be theft if a man turns a thing lent for use to a + use other than he believes its owner would sanction, though in point of + fact its owner is consenting. Whence arose the following question: if + Antoninus solicits the slave of Peri to steal property of the latter, and + convey it to him, and the slave informs Peri of it, who, wishing to detect + Antoninus in the very act, allows the slave to convey the property to him; + can an action of theft, or for corrupting the slave, or neither, be + maintained against Antoninus? The case was submitted to us, and we + examined the conflicting opinions of the earlier jurists on the matter: + some of whom thought that neither action lay, and others, that Peri might + sue on theft only. But we, in order to put an end to such quibbles, have + enacted by our decision that in such case both the action on theft and + that for corrupting a slave shall lie. It is true that the slave has not + been corrupted by the advances made to him, so that the case does not come + within the rules which introduced the action for such corruption: yet the + wouldbe corrupter's intention was to make him dishonest, so that he is + liable to a penal action, exactly as if the slave had actually been + corrupted, lest his immunity from punishment should encourage others to + perpetrate a similar wrong on a slave less strong to resist temptation. + </p> + <p> + 9 A free man too may be the subject of a theft—for instance, a child + in my power, if secretly removed from my control. + </p> + <p> + 10 So too a man sometimes steals his own property—for instance, a + debtor who purloins the goods which he has pledged to a creditor. + </p> + <p> + 11 Theft may be chargeable on a person who is not the perpetrator; on him, + namely, by whose aid and abetment a theft is committed. Among such persons + we may mention the man who knocks money out of your hand for another to + pick up, or who stands in your way that another may snatch something from + you, or scatters your sheep or your oxen, that another may steal them, + like the man in the old books, who waved a red cloth to frighten a herd. + If the same thing were done as a frolic, without the intention of + assisting a theft, the proper action is not theft, but on the case. Where, + however, Titius commits theft with the aid of Maevius, both are liable to + an action on theft. A man, too, is held to have aided and abetted a theft + who places a ladder under a window, or breaks open a window or a door, in + order that another may steal, or who lends tools for the breaking of them + open, or a ladder to place under a window, if he knows the object for + which they are borrowed. It is clear that a man is not liable on theft, + who, though he advises and instigates an offence, does not actually aid in + its commission. + </p> + <p> + 12 If a child in power, or a slave, steal property of his father or + master, it is theft, and the property is deemed stolen, so that no one can + acquire it by usucapion until it has returned into the hands of the owner; + but no action will lie on the theft, because between a son in power and + his father, or between a slave and his master, no action will lie on any + ground whatsoever. But if the offender is aided and abetted by a third + person, the latter is liable to an action on theft, because a theft has in + fact been committed, and by his aid and abetment. + </p> + <p> + 13 The action on theft will lie at the suit of any person interested in + the security of the property, even though he be not its owner: indeed, + even the owner cannot maintain the action unless he suffers damage from + the loss. + </p> + <p> + 14 Hence, when a pawn is stolen the pawnee can sue, even though his debtor + be perfectly able to pay the debt; for it is more advantageous to him to + rely on the pledge, than to bring a personal action: and this rule is so + unbending that even the pawnor who steals a pawn is suable for theft by + the pawnee. + </p> + <p> + 15 So, if clothes are delivered to be cleaned or finished or mended for a + certain remuneration, and then are stolen, it is the fuller or tailor who + can sue on the theft, and not the owner; for the owner suffers nothing by + the loss, having the action of letting against the fuller or tailor for + the recovery of his property. Similarly a purchaser in good faith, even + though a good title as owner is not given to him, can bring the action of + theft if the property is stolen, exactly like the pawnee. The action is, + however, not maintainable at the suit of a fuller or tailor, unless he is + solvent, that is to say, unless he is able to fully indemnify the owner; + if he is insolvent, the owner cannot recover from him, and so can maintain + an action against the thief, being, on this hypothesis, interested in the + recovery of the property. Where the fuller or tailor is only partly + instead of wholly solvent the rule is the same. + </p> + <p> + 16 The older lawyers held that what has been said of the fuller and tailor + applied also to the borrower for use, on the ground that as the + remuneration which the fuller receives makes him responsible for custody, + so the advantages which the borrower derives from the use requires him to + keep it safely at his peril. Our wisdom, however, has amended the law in + this particular in our decisions, by allowing the owner the option of + suing either the borrower by action on the loan, or the thief by action of + theft; though when his choice has been determined he cannot change his + mind, and resort to the other action. If he prefers to sue the thief, the + borrower is absolutely released from liability; but if he proceeds against + the borrower, he cannot in any way himself sue the thief on the stealing, + though this may be done by the borrower, who is defendant in the other + action, provided that the owner knew, at the time when he began his action + against the borrower, that the thing had been stolen. If he is ignorant of + this, or even if he is merely doubtful whether the borrower still has the + property in his possession or not, and sues him on the loan, he may, on + subsequently learning the facts, and if he wishes to drop the action which + he has commenced, and sue the thief instead, adopt this course, in which + case no obstacle is to be thrown in his way, because it was in ignorance + that he took action and sued the borrower on the loan. If, however, the + owner has been indemnified by the borrower, in no case can he bring the + action of theft against the thief, as his rights of action pass to the + person who has compensated him for the loss of his property. Conversely it + is clear, that if, at the outset, the owner began an action on the loan + against the borrower, not knowing that the property had been stolen, and + subsequently, on learning this, proceeded against the thief instead, the + borrower is absolutely released from liability, whatever may be the result + of the owner's action against the thief; the rule being the same, whether + the borrower be wholly or only partially insolvent. + </p> + <p> + 17 As a depositary is not answerable for the safe keeping of the thing + deposited, but only for fraud, and, if it is stolen, is not compellable to + make restitution by action of deposit, he has no interest if it is lost, + and therefore the action of theft is maintainable only by the depositor. + </p> + <p> + 18 Finally, it has been a question whether a child below the age of + puberty, who carries away the property of another, is guilty of theft. The + answer is that, as theft depends on intention, obligation by theft is not + incurred unless the child is near puberty, and so understands its + delinquency. + </p> + <p> + 19 The object of the action on theft, whether it be for double or + quadruple the value of the goods stolen, is merely the recovery of the + penalty; to recover the goods themselves or their value the owner has an + independent remedy by vindication or condiction. The former is the proper + remedy when it is known who is in possession of the goods, whether this be + the thief or any one else: the latter lies against the thief or his heir, + whether in possession of the stolen property or not. + </p> + <p> + <a name="link2H_4_0086" id="link2H_4_0086"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE II. OF ROBBERY + </h2> + <p> + Robbery is chargeable also as theft; for who deals with the property of + another more against that other's will than the robber? And thus the + description of the robber as an audacious thief is a good one. However, as + a special remedy for this offence the praetor has introduced the action + for robbery, or rapine with violence, which may be brought within a year + for four times the value, after a year for simple damages, and while lies + even when only a single thing of the slightest value has been taken with + violence. This fourfold value, however, is not all penalty, nor is there + an independent action for the recovery of the property or its value, as we + observed was the case in the action of theft detected in the commission; + but the thing or its value is included in the fourfold, so that, in point + of fact, the penalty is three times the value of the property, and this + whether the robber be taken in the act or not; for it would be absurd to + treat a robber more lightly than one who carries off property merely + secretly. + </p> + <p> + 1 This action is maintainable only where the robbery is attended with + wrongful intention; consequently, if a man by mistake thought that + property was his own, and, in his ignorance of law, forcibly carried it + off in the belief that it was lawful for an owner to take away, even by + force, a thing belonging to himself from a person in whose possession it + was, he cannot be held liable to this action; and similarly on principle + he would not in such a case be suable for theft. Lest, however, robbers, + under the cloak of such a plea, should discover a method of gratifying a + grasping habit with impunity, the law has been amended upon this point by + imperial constitutions, by which it is enacted that it shall not be lawful + for any one to forcibly carry off movable property, inanimate or animate, + even though he believe it to belong to him; and that whosoever disobeys + this shall forfeit the property, if, in fact, it be his, and if it be not, + shall restore it, and along with it its value in money. And by the said + constitutions it is also declared that this provision relates not only to + movables (of which alone robbery can be committed), but also to forcible + entries on land and houses, so as to deter men from all violent seizing + upon property whatsoever under the cloak of such excuses. + </p> + <p> + 2 In order to support this action it is not necessary that the goods of + which robbery has been committed should belong to the plaintiff, provided + they were taken from among his property. Thus, if a thing be let, or lent, + or pledged to Titius, or even deposited with him under such circumstances + that he has an interest in its not being carried off—for instance, + by his having undertaken the entire responsibility for its safe custody;—or + if he possesses it in good faith, or has a usufruct or any other right in + it whereby he suffers loss or incurs liability through its being forcibly + taken from him, the action will be maintainable by him; not necessarily in + order to restore to him the ownership, but only to compensate him for what + it is alleged he has lost by its being taken from his goods or withdrawn + from his means. In fact, it may be said generally that where, supposing + property to be taken secretly, the action of theft will lie, the action on + robbery will lie at suit of the same person, if it be taken with violence. + </p> + <p> + <a name="link2H_4_0087" id="link2H_4_0087"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE III. OF THE LEX AQUILIA + </h2> + <p> + Unlawful damage is actionable under the lex Aquilia, whose first chapter + provides that if a slave of another man, or a quadruped from his flocks or + herds, be unlawfully killed, the offender shall pay to the owner whatever + was the highest value thereof within the year next immediately preceding. + </p> + <p> + 1 From the fact that this enactment does not speak of quadrupeds simply, + but only of such quadrupeds as are usually included under the idea of + flocks and herds, it is to be inferred that it has no application to wild + animals or to dogs, but only to such beasts as can properly be said to + graze in herds, namely horses, mules, asses, oxen, sheep, and goats. It is + settled, too, that swine come under its operation, for they are + comprehended in 'herds' because they feed in this manner; thus Homer in + his Odyssey, as quote by Aelius Marcianus in his Institutes, says, You + will find him sitting among his swine, and they are feeding by the Rock of + Corax, over against the spring Arethusa.' + </p> + <p> + 2 To kill unlawfully is to kill without any right; thus a man who kills a + robber is not liable to this action, if he could in no other way escape + the danger by which he was threatened. + </p> + <p> + 3 So, too, where one man kills another by misadventure, he is not liable + under this statute, provided there is no fault or carelessness on his + part; otherwise it is different, for under this statute carelessness is as + punishable as wilful wrongdoing. + </p> + <p> + 4 Accordingly, if a man, while playing or practising with javelins, runs + your slave through as he passes by, a distinction is drawn. If it be done + by a soldier in his exercising ground, that is to say, where such practice + is usually conducted, he is in no way to blame; but if it be done by some + one else, his carelessness will make him liable; and so it is with the + soldier, if he do it in some place other than that appropriated to + military exercises. + </p> + <p> + 5 So, too, if a man is trimming a tree, and kills your slave as he passes + by with a bough which he lets fall, he is guilty of negligence, if it is + near a public way, or a private path belonging to a neighbour, and he does + not call out to give people warning; but if he calls out, and the slave + takes no pains to get out of the way, he is not to blame. Nor would such a + man be liable, if he was cutting a tree far away from a road, or in the + middle of a field, even if he did not call out; for strangers had no + business to be there. + </p> + <p> + 6 Again, if a surgeon operates on your slave, and then neglects altogether + to attend to his cure, so that the slave dies in consequence, he is liable + for his carelessness. + </p> + <p> + 7 Sometimes, too, unskilfulness is undistinguishable from carelessness—as + where a surgeon kills your slave by operating upon him unskilfully, or by + giving him wrong medicines; + </p> + <p> + 8 and similarly, if your slave is run over by a team of mules, which the + driver has not enough skill to hold, the latter is suable for + carelessness; and the case is the same if he was simply not strong enough + to hold them, provided they could have been held by a stronger man. The + rule also applies to runaway horses, if the running away is due to the + rider's deficiency either in skill or strength. + </p> + <p> + 9 The meaning of the words of the statute 'whatever was of the highest + value thereof within the year' is that if any one, for instance, kills a + slave of yours, who at the moment of his death is lame, or maimed, or + blind of one eye, but within the year was sound and worth a price, the + person who kills him is answerable not merely for his value at the time of + his death, but for his highest value within the year. It is owing to this + that the action under this statute is deemed to be penal, because a + defendant is sometimes bound to pay a sum not merely equivalent to the + damage he has done, but far in excess of it; and consequently, the right + of suing under the statute does not pass against the heir, though it would + have done so if the damages awarded had never exceeded the actual loss + sustained by the plaintiff. + </p> + <p> + 10 By juristic construction of the statute, though not so enacted in its + terms, it has been settled that one must not only take account, in the way + we have described, of the value of the body of the slave or animal killed, + but must also consider all other loss which indirectly falls upon the + plaintiff through the killing. For instance, if your slave has been + instituted somebody's heir, and, before he has by your order accepted, he + is slain, the value of the inheritance you have missed must be taken into + consideration; and so, too, if one of a pair of mules, or one of four + chariot horses, or one of a company of slave players is killed, account is + to be taken not only of what is killed, but also of the extent to which + the others have been depreciated. + </p> + <p> + 11 The owner whose slave is killed has the option of suing the wrongdoer + for damages in a private action under the lex Aquilia, or of accusing him + on a capital charge by indictment. + </p> + <p> + 12 The second chapter of the lex Aquilia is now obsolete; + </p> + <p> + 13 the third makes provision for all damage which is not covered by the + first. Accordingly, if a slave or some quadruped which comes within its + terms, is wounded, or if a quadruped which does not come within its terms, + such as a dog or wild animal, is wounded or killed, an action is provided + by this chapter; and if any other animal or inanimate thing is unlawfully + damaged, a remedy is herein afforded; for all burning, breaking, and + crushing is hereby made actionable, though, indeed, the single word + 'breaking' covers all these offences, denoting as it does every kind of + injury, so that not only crushing and burning, but any cutting, bruising, + spilling, destroying, or deteriorating is hereby denominated. Finally, it + has been decided that if one man mixes something with another's win or + oil, so as to spoil its natural goodness, he is liable under this chapter + of the statute. + </p> + <p> + 14 It is obvious that, as a man is liable under the first chapter only + where a slave or quadruped is killed by express design or through + negligence on his part, so, too, he is answerable for all other damage + under this chapter only where it results from some wilful act or + carelessness of his. Under this chapter, however, it is not the highest + value which the thing had within a year, but that which it had within the + last thirty days, which is chargeable on the author of the mischief. + </p> + <p> + 15 It is true that here the statute does not expressly say 'the highest + value,' but Sabinus rightly held that the damages must be assessed as if + the words 'highest value' occurred also in this chapter; the Roman people, + who enacted this statute on the proposal of Aquilius the tribune, having + thought it sufficient to use them in the first chapter only. + </p> + <p> + 16 It is held that a direct action lies under this statute only when the + body of the offender is substantially the instrument of mischief. If a man + occasions loss to another in any other way, a modified action will usually + lie against him; for instance, if he shuts up another man's slave or + quadruped, so as to starve him or it to death, or drives his horse so hard + as to knock him to pieces, or drives his cattle over a precipice, or + persuades his slave to climb a tree or go down a well, who, in climbing + the one or going down the other, is killed or injured in any part of his + body, a modified action is in all these cases given against him. But if a + slave is pushed off a bridge or bank into a river, and there drowned, it + is clear from the facts that the damage is substantially done by the body + of the offender, who is consequently liable directly under the lex + Aquilia. If damage be done, not by the body or to a body, but in some + other form, neither the direct nor the modified Aquilian action will lie, + though it is held that the wrongdoer is liable to an action on the case; + as, for instance, where a man is moved by pity to loose another's slave + from his fetters, and so enables him to escape. + </p> + <p> + <a name="link2H_4_0088" id="link2H_4_0088"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IV. OF INJURIES + </h2> + <p> + By injury, in a general sense, is meant anything which is done without any + right. Besides this, it has three special significations; for sometimes it + is used to express outrage, the proper word for which—contumely—is + derived from the verb 'to contemn,' and so is equivalent to the Greek + 'ubris': sometimes it means culpable negligence, as where damage is said + to be done (as in the lex Aquilia) 'with injury,' where it is equivalent + to the Greek 'adikema'; and sometimes iniquity and injustice, which the + Greeks express by 'adikia'; thus a litigant is said to have received an + 'injury' when the praetor or judge delivers an unjust judgement against + him. + </p> + <p> + 1 An injury or outrage is inflicted not only by striking with the first, a + stick, or a whip, but also by vituperation for the purpose of collecting a + crowd, or by taking possession of a man's effects on the ground that he + was in one's debt; or by writing, composing, or publishing defamatory + prose or verse, or contriving the doing of any of these things by some one + else; or by constantly following a matron, or a young boy or girl below + the age of puberty, or attempting anybody's chastity; and, in a word, by + innumerable other acts. + </p> + <p> + 2 An outrage or injury may be suffered either in one's own person, or in + the person of a child in one's power, or even, as now is generally + allowed, in that of one's wife. Accordingly, if you commit an 'outrage' on + a woman who is married to Titius, you can be sued not only in her own + name, but also in those of her father, if she be in his power, and of her + husband. But if, conversely, it be the husband who is outraged, the wife + cannot sue; for wives should be protected by their husbands, not husbands + by their wives. Finally, a father-in-law may sue on an outrage committed + on his daughterinlaw, if the son to whom she is married is in his power. + </p> + <p> + 3 Slaves cannot be outraged themselves, but their master may be outraged + in their person, though not by all the acts by which an outrage might be + offered to him in the person of a child or wife, but only by aggravated + assaults or such insulting acts as clearly tend to dishonour the master + himself: for instance, by flogging the slave, for which an action lies; + but for mere verbal abuse of a slave, or for striking him with the fist, + the master cannot sue. + </p> + <p> + 4 If an outrage is committed on a slave owned by two or more persons + jointly, the damages to be paid to these severally should be assessed with + reference not to the shares in which they own him, but to their rank or + position, as it is to the reputation and not to the property that the + injury is done; + </p> + <p> + 5 and if an outrage is committed on a slave belonging to Maevius, but in + whom Titius has a usufruct, the injury is deemed to be done to the former + rather than to the latter. + </p> + <p> + 6 But if the person outraged is a free man who believes himself to be your + slave, you have no action unless the object of the outrage was to bring + you into contempt, though he can sue in his own name. The principle is the + same when another man's slave believes himself to belong to you; you can + sue on an outrage committed on him only when its object is to bring + contempt upon you. + </p> + <p> + 7 The penalty prescribed for outrage in the Twelve Tables was, for a limb + disabled, retaliation, for a bone merely broken a pecuniary mulct + proportionate to the great poverty of the age. The praetors, however, + subsequently allowed the person outraged to put his own estimate on the + wrong, the judge having a discretion to condemn the defendant either in + the sum so named by the plaintiff, or in a less amount; and of these two + kinds of penalties that fixed by the Twelve Tables is now obsolete, while + that introduced by the praetors, which is also called 'honorary,' is most + usual in the actual practice of the courts. Thus the pecuniary + compensation awarded for an outrage rises and falls in amount according to + the rank and character of the plaintiff, and this principle is not + improperly followed even where it is a slave who is outraged; the penalty + where the slave is a steward being different from what it is when he is an + ordinary menial, and different again when he is condemned to wear fetters. + </p> + <p> + 8 The lex Cornelia also contains provisions as to outrages, and introduced + an action on outrage, available to a plaintiff who alleges that he has + been struck or beaten, or that a forcible entry has been made upon his + house; the term 'his house' including not only one which belongs to him + and in which he lives but also one which is hired by him, or in which he + is received gratuitously as a guest. + </p> + <p> + 9 An outrage becomes 'aggravated' either from the atrocious character of + the act, as where a man is wounded or beaten with clubs by another; or + from the place where it is committed, for instance, in the theatre or + forum, or in full sight of the praetor; or from the rank of the person + outraged,—if it be a magistrate, for instance, or if a senator be + outraged by a person of low condition, or a parent by his child, or a + patron by his freedman; for such an injury done to a senator, a parent, or + a patron has a higher pecuniary compensation awarded for it than one done + to a mere stranger, or to a person of low condition. Sometimes too the + position of the wound makes an outrage aggravated, as where a man is + struck in the eye. Whether the person on whom such an outrage is inflicted + is independent or in the power of another is almost entirely immaterial, + it being considered aggravated in either case. + </p> + <p> + 10 Finally, it should be observed that a person who has been outraged + always has his option between the civil remedy and a criminal indictment. + If he prefers the former, the penalty which is imposed depends, as we have + said, on the plaintiff's own estimate of the wrong he has suffered; if the + latter, it is the judge's duty to inflict an extraordinary penalty on the + offender. It should be remembered, however, that by a constitution of Zeno + persons of illustrious or still higher rank may bring or defend such + criminal actions on outrage by an agent, provided they comply with the + requirements of the constitution, as may be more clearly ascertained by a + perusal of the same. + </p> + <p> + 11 Liability to an action on outrages attaches not only to him who commits + the act,—the striking of a blow, for instance—but also to + those who maliciously counsel or abet in the commission, as, for instance, + to a man who gets another struck in the face. + </p> + <p> + 12 The right of action on outrage is lost by condonation; thus, if a man + be outraged, and takes no steps to obtain redress, but at once lets the + matter, as it is said, slip out of his mind, he cannot subsequently alter + his intentions, and resuscitate an affront which he has once allowed to + rest. + </p> + <p> + <a name="link2H_4_0089" id="link2H_4_0089"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE V. OF QUASI-DELICTAL OBLIGATIONS + </h2> + <p> + The obligation incurred by a judge who delivers an unjust or partial + decision cannot properly be called delictal, and yet it does not arise + from contract; consequently, as he cannot but be held to have done a + wrong, even though it may be due to ignorance, his liability would seem to + be quasidelictal, and a pecuniary penalty will be imposed on him at the + judge's discretion. + </p> + <p> + 1 Another case of quasidelictal obligation is that of a person from whose + residence, whether it be his own, or rented, or gratuitously lent him, + anything is thrown or poured out whereby another is injured; the reason + why his liability cannot properly be called delictal being that it is + usually incurred through the fault of some other person, such as a slave + or freedman. Of a similar character is the obligation of one who keeps + something placed or hung over a public way, which might fall and injure + any one. In this last case the penalty has been fixed at ten aurei; in + that of things thrown or poured out of a dwelling-house the action is for + damages equivalent to double the loss sustained, though if a free man be + thereby killed the penalty is fixed at fifty aurei, and even if he be + merely injured he can sue for such damages as the judge shall in his + discretion award; and here the latter should take into account the medical + and other expenses of the plaintiff's illness, as well as the loss which + he has sustained through being disabled from work. + </p> + <p> + 2 If a son in power lives apart from his father, and anything is thrown or + poured out of his place of residence, or if he has anything so placed or + hung as to be dangerous to the public, it is the opinion of Julian that no + action lies against the father, but that the son should be made sole + defendant; and the same principle should be applied to a son in power who + is made a judge, and delivers an unjust or partial decision. + </p> + <p> + 3 Similarly shipowners, inn and stable keepers are liable as on a + quasi-delict for wilful damage or theft committed in their ships, inns, or + stables, provided the act be done by some or one of their servants there + employed, and not by themselves; for the action which is given in such + cases is not based on contract, and yet as they are in some sense at fault + for employing careless or dishonest servants, their liability would seem + to be quasidelictal. In such circumstances the action which is given is on + the case, and lies at suit of the injured person's heir, though not + against the heir of the shipowner, inn or stable keeper. + </p> + <p> + <a name="link2H_4_0090" id="link2H_4_0090"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VI. OF ACTIONS + </h2> + <p> + The subject of actions still remains for discussion. An action is nothing + else than the right of suing before a judge for what is due to one. + </p> + <p> + 1 The leading division of all actions whatsoever, whether tried before a + judge or a referee, is into two kinds, real and personal; that is to say, + the defendant is either under a contractual or delictal obligation to the + plaintiff, in which case the action is personal, and the plaintiff's + contention is that the defendant ought to convey something to, or do + something for him, or of a similar nature; or else, though there is no + legal obligation between the parties, the plaintiff asserts a ground of + action against some one else relating to some thing, in which case the + action is real. Thus, a man may be in possession of some corporeal thing, + in which Titius claims a right of property, and which the possessor + affirms belongs to him; here, if Titius sues for its recovery, the action + is real. + </p> + <p> + 2 It is real also if a man asserts that he has a right of usufruct over a + landed estate or a house, or a right of going or driving cattle over his + neighbour's land, or of drawing water from the same; and so too are the + actions relating to urban servitudes, as, for instance, where a man + asserts a right to raise his house, to have an uninterrupted prospect, to + project some building over his neighbour's land, or to rest the beams of + his own house on his neighbour's wall. Conversely, there are actions + relating to usufructs, and to rustic and urban servitudes, of a contrary + import, which lie at the suit of plaintiffs who deny their opponent's + right of usufruct, of going or driving cattle, of drawing water, of + raising their house, or having an uninterrupted view, of projecting some + building over the plaintiff's land, or of resting the beams of their house + in the plaintiff's wall. These actions too are real, but negative, and + never occur in disputes as to corporeal things, in which the plaintiff is + always the party out of possession; and there is no action by which the + possessor can (as plaintiff) deny that the thing in question belongs to + his adversary, except in one case only, as to which all requisite + information can be gathered from the fuller books of the Digest. + </p> + <p> + 3 The actions which have hitherto been mentioned, and others which + resemble them, are either of statutory origin, or at any rate belong to + the civil law. There are other actions, however, both real and personal, + which the praetor has introduced in virtue of his jurisdiction, and of + which it is necessary to give examples. For instance, he will usually, + under the circumstances to be mentioned, allow a real action to be brought + with a fictitious allegation—namely, that the plaintiff has acquired + a title by usucapion where this, in fact, is not the case; or, conversely, + he will allow a fictitious plea on the part of the defendant, to the + effect that the plaintiff has not acquired such a title where, in point of + fact, he has. + </p> + <p> + 4 Thus, if possession of some object be delivered on a ground sufficient + to legally transfer the same—for instance, under a sale or gift, as + part of a dowry, or as a legacy—and the transferee has not yet + acquired a complete title by usucapion, he has no direct real action for + its recovery, if he accidentally loses possession, because by the civil + law a real action lies at the suit of the owner only. But as it seemed + hard that in such a case there should be no remedy, the praetor introduced + an action in which the plaintiff, who has lost possession, fictitiously + allege that he has acquired a full title by usucapion, and thus claims the + thing as his own. This is called the Publician action, because it was + first placed in the Edict by a praetor called Publicius. + </p> + <p> + 5 Conversely, if a person, while absent in the service of the State, or + while in the power of an enemy, acquires by usucapion property belonging + to some one resident at home, the latter is allowed, within a year from + the cessation of the possessor's public employment, to sue for a recovery + of the property by a rescission of the usucapion: by fictitiously + alleging, in other words, that the defendant has not thus acquired it; and + the praetor from motives of equity allows this kind of action to be + brought in certain other cases, as to which information may be gathered + from the larger work of the Digest or Pandects. + </p> + <p> + 6 Similarly, if a person conveys away his property in fraud of creditors, + the latter, on obtaining from the governor of the province a decree + vesting in them possession of the debtor's estate, are allowed to avoid + the conveyance, and sue for the recovery of the property; in other words, + to allege that the conveyance has never taken place, and that the property + consequently still belongs to the debtor. + </p> + <p> + 7 Again, the Servian and quasi-Servian actions, the latter of which is + also called 'hypothecary,' are derived merely from the praetor's + jurisdiction. The Servian action is that by which a landlord sues for his + tenant's property, over which he has a right in the nature of mortgage as + security for his rent; the quasi-Servian is a similar remedy, open to + every pledgee or hypothecary creditor. So far then as this action is + concerned, there is no difference between a pledge and a hypothec: and + indeed whenever a debtor and a creditor agree that certain property of the + former shall be the latter's security for his debt, the transaction is + called a pledge or a hypothec indifferently. In other points, however, + there is a distinction between them; for the term 'pledge' is properly + used only where possession of the property in question is delivered to the + creditor, especially if that property be movable: while a hypothec is, + strictly speaking, such a right created by mere agreement without delivery + of possession. + </p> + <p> + 8 Besides these, there are also personal actions which the praetor has + introduced in virtue of his jurisdiction, for instance, that brought to + enforce payment of money already owed, and the action on a banker's + acceptance, which closely resembled it. By our constitution, however, the + first of these actions has been endowed with all the advantages which + belonged to the second, and the latter, as superfluous, has therefore been + deprived of all force and expunged from our legislation. To the praetor is + due also the action claiming an account of the peculium of a slave or + child in power, that in which the issue is whether a plaintiff has made + oath, and many others. + </p> + <p> + 9 The action brought to enforce payment of money already owed is the + proper remedy against a person who, by a mere promise, without + stipulation, has engaged to discharge a debt due either from himself or + from some third party. If he has promised by stipulation, he is liable by + the civil law. + </p> + <p> + 10 The action claiming an account of a peculium is a remedy introduced by + the praetor against a master or a father. By strict law, such persons + incur no liability on the contracts of their slaves or children in power; + yet it is only equitable that damages should still be recoverable against + them to the extent of the peculium, in which children in power and slaves + have a sort of property. + </p> + <p> + 11 Again, if a plaintiff, on being challenged by the defendant, deposes on + oath that the latter owes him the money which is the object of the action, + and payment is not made to him, the praetor most justly grants to him an + action in which the issue is, not whether the money is owing, but whether + the plaintiff has sworn to the debt. + </p> + <p> + 12 There is also a considerable number of penal actions which the praetor + has introduced in the exercise of his jurisdiction; for instance, against + those who in any way injure or deface his album; or who summon a parent or + patron without magisterial sanction; or who violently rescue persons + summoned before himself, or who compass such a rescue; and others + innumerable. + </p> + <p> + 13 'Prejudicial' actions would seem to be real, and may be exemplified by + those in which it is inquired whether a man is free born, or has become + free by manumission, or in which the question relates to a child's + paternity. Of these the first alone belongs to the civil law: the others + are derived from the praetor's jurisdiction. + </p> + <p> + 14 The kinds of action having been thus distinguished, it is clear that a + plaintiff cannot demand his property from another in the form 'if it be + proved that the defendant is bound to convey.' It cannot be said that what + already belongs to the plaintiff ought to be conveyed to him, for + conveyance transfers ownership, and what is his cannot be made more his + than it is already. Yet for the prevention of theft, and multiplication of + remedies against the thief, it has been provided that, besides the penalty + of twice or four times the value of the property stolen, the property + itself, or its value, may be recovered from the thief by a personal action + in the form 'if it be proved that the defendant ought to convey,' as an + alternative for the real action which is also available to the plaintiff, + and in which he asserts his ownership of the stolen property. + </p> + <p> + 15 We call a real action a 'vindication,' and a personal action, in which + the contention is that some property should be conveyed to us, or some + service performed for us, a 'condiction,' this term being derived from + condicere, which has an old meaning of 'giving notice.' To call a personal + action, in which the plaintiff contends that the defendant ought to convey + to him, a condiction, is in reality an abuse of the term, for nowadays + there is no such notice as was given in the old action of that name. + </p> + <p> + 16 Actions may be divided into those which are purely reparative, those + which are purely penal, and those which are mixed, or partly reparative, + partly penal. + </p> + <p> + 17 All real actions are purely reparative. Of personal actions those which + spring from contract are nearly all of the same character; for instance, + the actions on loans of money, or stipulations, on loans for use, on + deposit, agency, partnership, sale, and hire. If, however, the action be + on a deposit occasioned by a riot, a fire, the fall of a building, or a + shipwreck, the praetor enables the depositor to recover double damages, + provided he sues the bailee in person; he cannot recover double damages + from the bailee's heir, unless he can prove personal fraud against the + latter. In these two cases the action, though on contract, is mixed. + </p> + <p> + 18 Actions arising from delict are sometimes purely penal, sometimes are + partly penal and partly reparative, and consequently mixed. The sole + object of the action of theft is the recovery of a penalty, whether that + penalty be four times the value of the property stolen, as in theft + detected in the commission, or only twice that value, as in simple theft. + The property itself is recoverable by an independent action in which the + person from whom it has been stolen claims it as his own, whether it be in + the possession of the thief himself or of some third person; and against + the thief himself he may even bring a condiction, to recover the property + or its value. + </p> + <p> + 19 The action on robbery is mixed, for the damages recoverable thereunder + are four times the value of the property taken, threefourths being pure + penalty, and the remaining fourth compensation for the loss which the + plaintiff has sustained. So too the action on unlawful damage under the + lex Aquilia is mixed, not only where the defendant denies his liability, + and so is sued for double damages, but also sometimes where the claim is + for simple damages only; as where a lame or one-eyed slave is killed, who + within the year previous was sound and of large value; in which case the + defendant is condemned to pay his greatest value within the year, + according to the distinction which has been drawn above. Persons too who + are under an obligation as heirs to pay legacies or trust bequests to our + holy churches or other venerable places, and neglect to do so until sued + by the legatee, are liable to a mixed action, by which they are compelled + to give the thing or pay the money left by the deceased, and, in addition, + an equivalent thing or sum as penalty, the condemnation being thus in + twice the value of the original claim. + </p> + <p> + 20 Some actions are mixed in a different sense, being partly real, partly + personal. They are exemplified by the action for the division of a + 'family,' by which one of two or more joint heirs can enforce against the + other or rest a partition of the inheritance, and by the actions for the + division of common property, and for rectification of boundaries between + adjoining landed proprietors. In these three actions the judge has power, + according as shall to him seem fair and equitable, to adjudge any part of + the joint property, or of the land in dispute, to any one of the parties, + and to order any one of them who seems to have an undue advantage in the + partition or rectification to pay a certain sum of money to the other or + the rest as compensation. + </p> + <p> + 21 The damages recoverable in an action may be either once, twice, three, + or four times the value of the plaintiff's original interest; there is no + action by which more than fourfold damages can be claimed. + </p> + <p> + 22 Single damages only are recoverable in the actions on stipulation, loan + for consumption, sale, hire, agency, and many others besides. + </p> + <p> + 23 Actions claiming double damages are exemplified by those on simple + theft, on unlawful damage under the lex Aquilia, on certain kinds of + deposit, and for corruption of a slave, which lies against any one by + whose instigation and advice another man's slave runs away, or becomes + disobedient to his master, or takes to dissolute habits, or becomes worse + in any way whatsoever, and in which the value of property which the + runaway slave has carried off is taken into account. Finally, as we + remarked above, the action for the recovery of legacies left to places of + religion is of this character. + </p> + <p> + 24 An action for triple damages is grounded when a plaintiff makes an + overstatement of his claim in the writ of summons, in consequence of which + the officers of the court take too large a fee from the defendant. In such + a case the latter will be able to recover from the plaintiff three times + the loss which he sustains by the overcharge, including in these damages + simple compensation for the sum paid in excess of the proper fee. This is + provided by a distinguished constitution in our Code, under which a + statutory condiction clearly lies for the damages in question. + </p> + <p> + 25 Quadruple damages are recoverable by the action on theft detected in + the commission, by the action on intimidation, and by the action grounded + on the giving of money in order to induce one man to bring a vexatious + suit against another, or to desist from a suit when brought. Under our + constitution too a statutory condiction lies for the recovery of fourfold + damages from officers of the court, who exact money from defendants in + excess of its provisions. + </p> + <p> + 26 There is this difference between the actions on simple theft and for + the corruption of a slave, and the other of which we spoke in connexion + with them, that by the two former double damages are recoverable under any + circumstances; the latter, namely the action on unlawful damage under the + lex Aquilia, and that on certain kinds of deposit, entail double damages + on the defendant only if he denies his liability; if he admits it, simple + damages alone can be recovered. The damages are double under an action for + recovery of legacies left to religious places not only when the liability + is denied, but also when the defendant delays payment until sued by the + order of a magistrate; if he admits his liability, and pays before being + so sued, he cannot be compelled to pay more than the original debt. + </p> + <p> + 27 The action on intimidation also differs from the others which we + mentioned in the same connexion, in that it contains in its very nature an + implied condition that the defendant is entitled to acquittal if, on being + so ordered by the judge, he restores to the plaintiff the property of + which the latter has been deprived. In other actions of the same class + this is not so; for instance, in the action on theft detected in the + commission, the defendant has under any circumstances to pay fourfold + damages. + </p> + <p> + 28 Again, some actions are equitable, others are actions of strict law. To + the former class belong the actions on sale, hire, unauthorised agency, + agency proper, deposit, partnership, guardianship, loan for use, mortgage, + division of a 'family,' partition of joint property, those on the + innominate contracts of sale by commission and exchange, and the suit for + recovery of an inheritance. Until quite recently it was a moot point + whether the lastnamed was properly an equitable action, but our + constitution has definitely decided the question in the affirmative. + </p> + <p> + 29 Formerly too the action for the recovery of a dowry was an equitable + action: but as we found that the action on stipulation was more + convenient, we have, while establishing many distinctions, attached all + the advantages which the former remedy possessed to the action on + stipulation, when employed for the recovery of a dowry. The former action + being thus by a judicious reform abolished, that on stipulation, by which + it has been replaced, has deservedly been invested with all the + characteristics of an equitable action, so far as and whenever it is + brought for the recovery of a dowry. We have also given persons entitled + to sue for such recovery a tacit hypothec over the husband's property, but + this right is not to give any priority over other hypothecary creditors + except where it is the wife herself who sues to recover her dowry; it + being in her interest only that we have made this new provision. + </p> + <p> + 30 In equitable actions the judge has full power to assess on good and + fair grounds the amount due to the plaintiff, and in so doing to take into + account counterclaims of the defendant, condemning the latter only in the + balance. Even in actions of strict law counterclaims have been permitted + since a rescript of the Emperor Marcus, the defendant meeting the + plaintiff's claim by a plea of fraud. By our constitution, however, a + wider field has been given to the principle of setoff, when the + counterclaim is clearly established, the amount claimed in the plaintiff's + action, whether real or personal, or whatever its nature, being reduced by + operation of law to the extent of the defendant's counterclaim. The only + exception to this rule is the action on deposit, against which we have + deemed it no less than dishonest to allow any counterclaim to be set up; + for if this were permitted persons might be fraudulently prevented from + recovering property deposited under the pretence of a setoff. + </p> + <p> + 31 There are some actions again which we call arbitrary, because their + issue depends on an 'arbitrium' or order of the judge. Here, unless on + such order the defendant satisfies the plaintiff's claim by restoring or + producing the property, or by performing his obligation, or in a noxal + action by surrendering the guilty slave, he ought to be condemned. Some of + such actions are real, others personal. The former are exemplified by the + Publician action, the Servian action for the recovery of a tenant farmer's + stock, and the quasi-Servian or socalled hypothecary action; the latter by + the actions on intimidation and on fraud, by that for the recovery of a + thing promised at a particular place, and by the action claiming + production of property. In all these actions, and others of a similar + nature, the judge has full power to determine on good and just grounds, + according to the circumstances of each particular case, the form in which + reparation ought to be made to the plaintiff. + </p> + <p> + 32 It is the judge's duty, in delivering judgement, to make his award as + definite as possible, whether it relate to the payment of money or the + delivery of property, and this even when the plaintiff's claim is + altogether unliquidated. + </p> + <p> + 33 Formerly, if the plaintiff, in his statement of claim, demanded more + than he was entitled to, his case fell to the ground, that is, he lost + even that which was his due, and in such cases the praetor usually + declined to restore him to his previous position, unless he was a minor; + for in this matter too the general rule was observed of giving relief to + minors after inquiry made, if it were proved that they had made an error + owing to their lack of years. If, however, the mistake was entirely + justifiable, and such as to have possibly misled even the discreetest of + men, relief was afforded even to persons of full age, as in the case of a + man who sues for the whole of a legacy, of which part is found to have + been taken away by codicils subsequently discovered; or where such + subsequently discovered codicils give legacies to other persons, so that, + the total amount given in legacies being reduced under the lex Falcidia, + the first legatee is found to have claimed more than the threefourths + allowed by that statute. Overstatement of claim takes four forms; that is, + it may relate either to the object, the time, the place, or the + specification. A plaintiff makes an overclaim in the object when, for + instance, he sues for twenty aurei while only ten are owing to him, or + when, being only part owner of property, he sues to recover the whole or a + greater portion of it than he is entitled to. Overclaim in respect of time + occurs when a man sues for money before the day fixed for payment, or + before the fulfilment of a condition on which payment was dependent; for + exactly as one who pays money only after it falls due is held to pay less + than his just debt, so one who makes his demand prematurely is held to + make an overclaim. Overclaim in respect of place is exemplified by a man + suing at one place for performance of a promise which it was expressly + agreed was to be performed at another, without any reference, in his + claim, to the latter: as, for instance, if a man, after stipulating thus, + 'Do you promise to pay at Ephesus?' were to claim the money as due at + Rome, without any addition as to Ephesus. This is an overclaim, because by + alleging that the money is due at Rome simply, the plaintiff deprives his + debtor of the advantage he might have derived from paying at Ephesus. On + this account an arbitrary action is given to a plaintiff who sues at a + place other than that agreed upon for payment, in which the advantage + which the debtor might have had in paying at the latter is taken into + consideration, and which usually is greatest in connexion with commodities + which vary in price from district to district, such as wine, oil, or + grain; indeed even the interest on loans of money is different in + different places. If, however, a plaintiff sues at Ephesus—that is, + in our example, at the place agreed upon for the payment—he need do + no more than simply allege the debt, as the praetor too points out, + because the debtor has all the advantage which payment in that particular + place gives him. Overclaim in respect of specification closely resembles + overclaim in respect of place, and may be exemplified by a man's + stipulating from you 'do you promise to convey Stichus or ten aurei?' and + then suing for the one or the other—that is to say, either for the + slave only, or for the money only. The reason why this is an overclaim is + that in stipulations of this sort it is the promisor who has the election, + and who may give the slave or the money, whichever he prefers; + consequently if the promisee sues, alleging that either the money alone, + or the slave alone, ought to be conveyed to him, he deprives his adversary + of his election, and thereby puts him in a worse position, while he + himself acquires an undue advantage. Other cases of this form of overclaim + occur where a man, having stipulated in general terms for a slave, for + wine, or for purple, sues for the particular slave Stichus, or for the + particular wine of Campania, or for Tyrian purple; for in all of these + instances he deprives his adversary of his election, who was entitled, + under the terms of the stipulation, to discharge his obligation in a mode + other than that which is required of him. And even though the specific + thing for which the promisee sues be of little or no value, it is still an + overclaim: for it is often easier for a debtor to pay what is of greater + value than what is actually demanded of him. Such were the rules of the + older law, which, however, has been made more liberal by our own and + Zeno's statutes. Where the overclaim relates to time, the constitution of + Zeno prescribes the proper procedure; if it relates to quantity, or + assumes any other form, the plaintiff, as we have remarked above, is to be + condemned in a sum equivalent to three times any loss which the defendant + may have sustained thereby. + </p> + <p> + 34 If the plaintiff in his statement of claim demands less than is his + due, as for instance by alleging a debt of five aurei, when in fact he is + owed ten, or by claiming only half of an estate the whole of which really + belongs to him, he runs no risk thereby, for, by the constitution of Zeno + of sacred memory, the judge will in the same action condemn the defendant + in the residue as well as in the amount actually claimed. + </p> + <p> + 35 If he demands the wrong thing in his statement of claim, the rule is + that he runs no risk; for if he discovers his mistake, we allow him to set + it right in the same action. For instance, a plaintiff who is entitled to + the slave Stichus may claim Eros; or he may allege that he is entitled to + a conveyance under a will, when his right is founded in reality upon a + stipulation. + </p> + <p> + 36 There are again some actions in which we do not always recover the + whole of what is due to us, but in which we sometimes get the whole, + sometimes only part. For instance, if the fund to which our claim looks + for satisfaction be the peculium of a son in power or a slave, and it is + sufficient in amount to meet that claim, the father or master is condemned + to pay the whole debt; but if it is not sufficient, the judge condemns him + to pay only so far as it will go. Of the mode of ascertaining the amount + of a peculium we will speak in its proper place. + </p> + <p> + 37 So too if a woman sues for the recovery of her dowry, the rule is that + the husband is to be condemned to restore it only so far as he is able, + that is, so far as his means permit. Accordingly, if his means will enable + him to restore the dowry in full, he will be condemned to do so; if not, + he will be condemned to pay only so much as he is able. The amount of the + wife's claim is also usually lessened by the husband's right of retaining + some portion for himself, which he may do to the extent of any outlay he + has made on dowry property, according to the rule, stated in the larger + work of the Digest, that a dowry is diminished by operation of law to the + extent of all necessary outlay thereon. + </p> + <p> + 38 Again, if a man goes to law with his parent or patron, or if one + partner brings an action of partnership against another, he cannot get + judgement for more than his adversary is able to pay. The rule is the same + when a man is sued on a mere promise to give a present. + </p> + <p> + 39 Very often too a plaintiff obtains judgement for less than he was owed + through the defendant's pleading a setoff: for, as has already been + observed, the judge, acting on equitable principles, would in such a case + take into account the cross demand in the same transaction of the + defendant, and condemn him only in the residue. + </p> + <p> + 40 So too if an insolvent person, who surrenders all his effects to his + creditors, acquires fresh property of sufficient amount to justify such a + step, his creditors may sue him afresh, and compel him to satisfy the + residue of their claims so far as he is able, but not to give up all that + he has; for it would be inhuman to condemn a man to pay his debts in full + who has already been once deprived of all his means. + </p> + <p> + <a name="link2H_4_0091" id="link2H_4_0091"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER + </h2> + <p> + As we have already mentioned the action in respect of the peculium of + children in power and slaves, we must now explain it more fully, and with + it the other actions by which fathers and masters are sued for the debts + of their sons or slaves. Whether the contract be made with a slave or with + a child in power, the rules to be applied are much the same; and + therefore, to make our statements as short as possible, we will speak only + of slaves and masters, premising that what we say of them is true also of + children and the parents in whose power they are; where the treatment of + the latter differs from that of the former, we will point out the + divergence. + </p> + <p> + 1 If a slave enters into a contract at the bidding of his master, the + praetor allows the latter to be sued for the whole amount: for it is on + his credit that the other party relies in making the contract. + </p> + <p> + 2 On the same principle the praetor grants two other actions, in which the + whole amount due may be sued for; that called exercitoria, to recover the + debt of a shipmaster, and that called institoria, to recover the debt of a + manager or factor. The former lies against a master who has appointed a + slave to be captain of a ship, to recover a debt incurred by the slave in + his character of captain, and it is called exercitoria, because the person + to whom the daily profits of a ship belong is termed an exercitor. The + latter lies against a man who has appointed a slave to manage a shop or + business, to recover any debt incurred in that business; it is called + institoria, because a person appointed to manage a business is termed an + institor. And these actions are granted by the praetor even if the person + whom one sets over a ship, a shop, or any other business, be a free man or + another man's slave, because equity requires their application in these + latter cases no less than in the former. + </p> + <p> + 3 Another action of the praetor's introduction is that called tributoria. + If a slave, with the knowledge of his master, devotes his peculium to a + trade or business, the rule which the praetor follows, in respect of + contracts made in the course of such trade or business, is that the + peculium so invested and its profits shall be divided between the master, + if anything is due to him, and the other creditors in the ratio of their + claims. The distribution of these assets is left to the master, subject to + this provision, that any creditor who complains of having received less + than his proper share can bring this action against him for an account. + </p> + <p> + 4 There is also an action in respect of peculium and of what has been + converted to the uses of the master, under which, if a debt has been + contracted by a slave without the consent of his master, and some portion + thereof has been converted to his uses, he is liable to that extent, while + if no portion has been so converted, he is liable to the extent of the + slave's peculium. Conversion to his uses is any necessary expenditure on + his account, as repayment to his creditors of money borrowed, repair of + his falling house, purchase of corn for his slaves, or of an estate for + him, or any other necessary. Thus, if out of ten aurei which your slave + borrows from Titius, he pays your creditor five, and spends the remainder + in some other way, you are liable for the whole of the five, and for the + remainder to the extent of the peculium: and from this it is clear that if + the whole ten were applied to your uses Titius could recover the whole + from you. Thus, though it is but a single action which is brought in + respect of peculium and of conversion to uses, it has two condemnatory + clauses. The judge by whom the action is tried first looks to see whether + there has been any application to the uses of the master, and does not + proceed to ascertain the amount of the peculium unless there has been no + such application, or a partial application only. In ascertaining the + amount of the peculium deduction is first made of what is owed to the + master or any person in his power, and the residue only is treated as + peculium; though sometimes what a slave owes to a person in his master's + power is not deducted, for instance, where that person is another slave + who himself belongs to the peculium; thus, where a slave owes a debt to + his own vicarial slave, its amount is not deducted from the peculium. + </p> + <p> + 5 There is no doubt that a person with whom a slave enters into a contract + at the bidding of his master, or who can sue by the actions exercitoria or + institoria, may in lieu thereof bring an action in respect of the peculium + and of conversion to uses; but it would be most foolish of him to + relinquish an action by which he may with the greatest ease recover the + whole of what is owing to him under the contract, and undertake the + trouble of proving a conversion to uses, or the existence of a peculium + sufficient in amount to cover the whole of the debt. So too a plaintiff + who can sue by the action called tributoria may sue in respect of peculium + and conversion to uses, and sometimes the one action is the more + advisable, sometimes the other. The former has this advantage, that in it + the master has no priority; there is no deduction of debts owing to him, + but he and the other creditors stand on precisely the same footing; while + in the action in respect of peculium deduction is first made of debts + owing to the master, who is condemned to pay over to the creditors only + what then remains. On the other hand, the advantage of the action in + respect of peculium is that in it the slave's whole peculium is liable to + his creditors, whereas in the action called tributoria only so much of it + is liable as is invested in the trade or business; and this may be only a + third, a fourth, or even a less fraction, because the slave may have the + rest invested in land or slaves, or out on loan. A creditor ought + therefore to select the one or the other action by considering their + respective advantages in each particular case; though he certainly ought + to choose that in respect of conversion to uses, if he can prove such + conversion. + </p> + <p> + 6 What we have said of the liability of a master on the contracts of his + slave is equally applicable where the contract is made by a child or + grandchild in the power of his or her father or grandfather. + </p> + <p> + 7 A special enactment in favour of children in power is found in the + senatusconsult of Macedo, which has prohibited the giving of loans of + money to such persons, and refused an action to the lender both against + the child, whether he be still in power, or has become independent by + death of the ancestor or emancipation, and against the parent, whether he + still retains the child in his power, or has emancipated him. This + enactment was made by the Senate because it was found that persons in + power, when dragged down by the burden of loans which they had squandered + in profligacy, often plotted against the lives of their parents. + </p> + <p> + 8 Finally, it should be observed that where a contract has been entered + into by a slave or son in power at his master's or parent's bidding, or + where there has been a conversion to his uses, a condiction may be brought + directly against the parent or master, exactly as if he had been the + original contracting party in person. So too, wherever a man is suable by + either of the actions called exercitoria and institoria, he may, in lieu + thereof, be sued directly by a condiction, because in effect the contract + in such cases is made at his bidding. + </p> + <p> + <a name="link2H_4_0092" id="link2H_4_0092"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE VIII. OF NOXAL ACTIONS + </h2> + <p> + Where a delict, such as theft, robbery, unlawful damages, or outrage, is + committed by a slave, a noxal action lies against the master, who on being + condemned has the option of paying the damages awarded, or surrendering + the slave in satisfaction of the injury. + </p> + <p> + 1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the term + applied to the wrong itself, that is, the theft, damage, robbery, or + outrage. + </p> + <p> + 2 This principle of noxal surrender in lieu of paying damages awarded is + based on most excellent reason, for it would be unjust that the misdeed of + a slave should involve his master in any detriment beyond the loss of his + body. + </p> + <p> + 3 If a master is sued by a noxal action on the ground of his slave's + delict, he is released from all liability by surrendering the slave in + satisfaction of the wrong, and by this surrender his right of ownership is + permanently transferred; though if the slave can procure enough money to + compensate the surrenderee in full for the wrong he did him, he can, by + applying to the praetor, get himself manumitted even against the will of + his new master. + </p> + <p> + 4 Noxal actions were introduced partly by statute, partly by the Edict of + the praetor; for theft, by the statute of the Twelve Tables; for unlawful + damages, by the lex Aquilia; for outrage and robbery, by the Edict. + </p> + <p> + 5 Noxal actions always follow the person of the wrongdoer. Thus, if your + slave does a wrong while in your power, an action lies against you; if he + becomes the property of some other person, that other is the proper person + to be sued; and if he is manumitted, he becomes directly and personally + liable, and the noxal action is extinguished. Conversely, a direct action + may change into noxal; thus, in an independent person has done a wrong, + and then becomes your slave (as he may in several ways described in the + first Book), a noxal action lies against you in lieu of the direct action + which previously lay against the wrongdoer in person. + </p> + <p> + 6 But no action lies for an offence committed by a slave against his + master, for between a master and a slave in his power there can be no + obligation; consequently, if the slave becomes the property of some other + person, or is manumitted, neither he nor his new master can be sued; and + on the same principle, if another man's slave commits a wrong against you, + and then becomes your property, the action is extinguished, because it has + come into a condition in which an action cannot exist; the result being + that even if the slave passes again out of your power you cannot sue. + Similarly, if a master commits a wrong against his slave, the latter + cannot sue him after manumission or alienation. + </p> + <p> + 7 These rules were applied by the ancients to wrongs committed by children + in power no less than by slaves; but the feeling of modern times has + rightly rebelled against such inhumanity, and noxal surrender of children + under power has quite gone out of use. Who could endure in this way to + give up a son, still more a daughter, to another, whereby the father would + be exposed to greater anguish in the person of a son than even the latter + himself, while mere decency forbids such treatment in the case of a + daughter? Accordingly, such noxal actions are permitted only where the + wrongdoer is a slave, and indeed we find it often laid down by old legal + writers that sons in power may be sued personally for their own delicts. + </p> + <p> + <a name="link2H_4_0093" id="link2H_4_0093"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS + </h2> + <p> + A noxal action was granted by the statute of the Twelve Tables in cases of + mischief done through wantonness, passion, or ferocity, by irrational + animals; it being by an enactment of that statute provided, that if the + owner of such an animal is ready to surrender it as compensation for the + damage, he shall thereby be released from all liability. Examples of the + application of this enactment may be found in kicking by a horse, or + goring by a bull, known to be given that way; but the action does not lie + unless in causing the damage the animal is acting contrary to its natural + disposition; if its nature be to be savage, this remedy is not available. + Thus, if a bear runs away from its owner, and causes damage, the quondam + owner cannot be sued, for immediately with its escape his ownership ceased + to exist. The term pauperies, or 'mischief,' is used to denote damage done + without there being any wrong in the doer of it, for an unreasoning animal + cannot be said to have done a wrong. Thus far as to the noxal action. + </p> + <p> + 1 It is, however, to be observed that the Edict of the aedile forbids + dogs, boars, bears, or lions to be kept near where there is a public road, + and directs that if any injury be caused to a free man through + disobedience of this provision, the owner of the beast shall be condemned + to pay such sum as to the judge shall seem fair and equitable: in case of + any other injury the penalty is fixed at double damages. Besides this + aedilician action, that on pauperies may also be sometimes brought against + the same defendant; for when two or more actions, especially penal ones, + may be brought on one and the same ground, the bringing of one does not + debar the plaintiff from subsequently bringing the other. + </p> + <p> + <a name="link2H_4_0094" id="link2H_4_0094"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION + </h2> + <p> + We must now remark that a man may sue either for himself, or for another + as attorney, guardian, or curator: whereas formerly one man could not sue + for another except in public suits, as an assertor of freedom, and in + certain actions relating to guardianship. The lex Hostilia subsequently + permitted the bringing of an action of theft on behalf of persons who were + in the hands of an enemy, or absent on State employment, and their pupils. + It was, however, found extremely inconvenient to be unable to either bring + or defend an action on behalf of another, and accordingly men began to + employ attorneys for this purpose; for people are often hindered by + illhealth, age, unavoidable absence, and many other causes from attending + to their own business. + </p> + <p> + 1 For the appointment of an attorney no set form of words is necessary, + nor need it be made in the presence of the other party, who indeed usually + knows nothing about it; for in law any one is your attorney whom you allow + to bring or defend an action on your behalf. + </p> + <p> + 2 The modes of appointing guardians and curators have been explained in + the first Book. + </p> + <p> + <a name="link2H_4_0095" id="link2H_4_0095"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XI. OF SECURITY + </h2> + <p> + The old system of taking security from litigants differed from that which + has more recently come into use. + </p> + <p> + Formerly the defendant in a real action was obliged to give security, so + that if judgement went against him, and he neither gave up the property + which was in question, nor paid the damages assessed, the plaintiff might + be able to sue either him or his sureties: and this is called security for + satisfaction of judgement, because the plaintiff stipulates for payment to + himself of the sum at which the damages are assessed. And there was all + the more reason for compelling the defendant in a real action to give + security if he was merely the representative of another. From the + plaintiff in a real action no security was required if it was on his own + account that he sued, but if he was merely an attorney, he was required to + give security for the ratification of his proceedings by his principal, + owing to the possibility of the latter's subsequently suing in person on + the same claim. Guardians and curators were required by the Edict to give + the same security as attorneys; but when they appeared as plaintiffs they + were sometimes excused. + </p> + <p> + 1 So much for real actions. In personal actions the same rules applied, so + far as the plaintiff was concerned, as we have said obtained in real + actions. If the defendant was represented by another person, security had + always to be given, for no one is allowed to defend another without + security; but if the defendant was sued on his own account, he was not + compelled to give security for satisfaction of judgement. + </p> + <p> + 2 Nowadays, however, the practice is different; for if the defendant is + sued on his own account, he is not compelled to give security for + repayment of the damages assessed, whether the action be real or personal; + all that he has to do is to enter into a personal engagement that he will + subject himself to the jurisdiction of the court down to final judgement; + the mode of making such engagement being either a promise under oath, + which is called a sworn recognizance, or a bare promise, or giving of + sureties, according to the defendant's rank and station. + </p> + <p> + 3 But the case is different where either plaintiff or defendant appears by + an attorney. If the plaintiff does so, and the attorney's appointment is + not enrolled in the records, or confirmed by the principal personally in + court, the attorney must give security for ratification of his proceedings + by his principal; and the rule is the same if a guardian, curator, or + other person who has undertaken the management of another's affairs begins + an action through an attorney. + </p> + <p> + 4 If a defendant appears, and is ready to appoint an attorney to defend + the action for him, he can do this either by coming personally into court, + and confirming the appointment by the solemn stipulations employed when + security is given for satisfaction of judgement, or by giving security out + of court whereby, as surety for his attorney, he guarantees the observance + of all the clauses of the socalled security for satisfaction of judgement. + In all such cases, he is obliged to give a right of hypothec over all his + property, whether the security be given in or out of court, and this right + avails against his heirs no less than against himself. Finally, he has to + enter into a personal engagement or recognizance to appear in court when + judgement is delivered; and in default of such appearance his surety will + have to pay all the damages to which he is condemned, unless notice of + appeal is given. + </p> + <p> + 5 If, however, the defendant for some reason or other does not appear, and + another will defend for him, he may do so, and it is immaterial whether + the action be real or personal, provided he will give security for + satisfaction of the judgement in full; for we have already mentioned the + old rule, that no one is allowed to defend another without security. + </p> + <p> + 6 All this will appear more clearly and fully by reference to the daily + practice of the courts, and to actual cases of litigation: + </p> + <p> + 7 and it is our pleasure that these rules shall hold not only in this our + royal city, but also in all our provinces, although it may be that through + ignorance the practice elsewhere was different: for it is necessary that + the provinces generally shall follow the lead of the capital of our + empire, that is, of this royal city, and observe its usages. + </p> + <p> + <a name="link2H_4_0096" id="link2H_4_0096"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT + </h2> + <p> + BY AND AGAINST HEIRS + </p> + <p> + It should be here observed that actions founded on statutes, + senatusconsults, and imperial constitutions could be brought at any length + of time from the accrual of the cause of action, until certain limits were + fixed for actions both real and personal by imperial enactments; while + actions which were introduced by the praetor in the exercise of his + jurisdiction could, as a rule, be brought only within a year, that being + the duration of his authority. Some praetorian actions, however, are + perpetual, that is to say, can be brought at any time which does not + exceed the limit fixed by the enactments referred to; for instance, those + granted to 'possessors of goods' and other persons who are fictitiously + represented as heirs. So, too, the action for theft detected in the + commission, though praetorian, is perpetual, the praetor having judged it + absurd to limit it by a year. + </p> + <p> + 1 Actions which will lie against a man under either the civil or the + praetorian law will not always lie against his heir, the rule being + absolute that for delict—for instance, theft, robbery, outrage, or + unlawful damage—no penal action can be brought against the heir. The + heir of the person wronged, however, may bring these actions, except in + outrage, and similar cases, if any. Sometimes, even an action on contract + cannot be brought against the heir; this being the case where the testator + has been guilty of fraud, and his heir has not profited thereby. If, + however, a penal action, such as those we have mentioned, has been + actually commenced by the original parties, it is transmitted to the heirs + of each. + </p> + <p> + 2 Finally, it must be remarked that if, before judgement is pronounced, + the defendant satisfies the plaintiff, the judges ought to absolve him, + even though he was liable to condemnation at the time when the action was + commenced; this being the meaning of the old dictum, that all actions + involve the power of absolution. + </p> + <p> + <a name="link2H_4_0097" id="link2H_4_0097"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIII. OF EXCEPTIONS + </h2> + <p> + We have next to examine the nature of exceptions. Exceptions are intended + for the protection of the defendant, who is often in this position, that + though the plaintiff's case is a good one in the abstract, yet as against + him, the particular defendant, his contention is inequitable. + </p> + <p> + 1 For instance, if you are induced by duress, fraud, or mistake to promise + Titius by stipulation what you did not owe him, it is clear that by the + civil law you are bound, and that the action on your promise is well + grounded; yet it is inequitable that you should be condemned, and + therefore in order to defeat the action you are allowed to plead the + exception of duress, or of fraud, or one framed to suit the circumstances + of the cases. + </p> + <p> + 2 So too, if, as a preliminary to an advance of money, one stipulates from + you for its repayment, and then never advances it after all, it is clear + that he can sue you for the money, and you are bound by your promise to + give it; but it would be iniquitous that you should be compelled to fulfil + such an engagement, and therefore you are permitted to defend yourself by + the exception that the money, in point of fact, was never advanced. The + time within which this exception can be pleaded, as we remarked in a + former Book, has been shortened by our constitution. + </p> + <p> + 3 Again, if a creditor agrees with his debtor not to sue for a debt, the + latter still remains bound, because an obligation cannot be extinguished + by a bare agreement; accordingly, the creditor can validly bring against + him a personal action claiming payment of the debt, though, as it would be + inequitable that he should be condemned in the face of the agreement not + to sue, he may defend himself by pleading such agreement in the form of an + exception. + </p> + <p> + 4 Similarly, if at his creditor's challenge a debtor affirms on oath that + he is not under an obligation to convey, he still remains bound; but as it + would be unfair to examine whether he has perjured himself, he can, on + being sued, set up the defence that he has sworn to the nonexistence of + the debt. In real actions, too, exceptions are equally necessary; thus, if + on the plaintiff's challenge the defendant swears that the property is + his, there is nothing to prevent the former from persisting in his action; + but it would be unfair to condemn the defendant, even though the + plaintiff's contention that the property is his be well founded. + </p> + <p> + 5 Again, an obligation still subsists even after judgement in an action, + real or personal, in which you have been defendent, so that in strict law + you may be sued again on the same ground of action; but you can + effectually meet the claim by pleading the previous judgement. + </p> + <p> + 6 These examples will have been sufficient to illustrate our meaning; the + multitude and variety of the cases in which exceptions are necessary may + be learnt by reference to the larger work of the Digest or Pandects. + </p> + <p> + 7 Some exceptions derive their force from statutes or enactments + equivalent to statutes, others from the jurisdiction of the praetor; + </p> + <p> + 8 and some are said to be perpetual or peremptory, others to be temporary + or dilatory. + </p> + <p> + 9 Perpetual or peremptory exceptions are obstructions of unlimited + duration, which practically destroy the plaintiff's ground of action, such + as the exceptions of fraud, intimidation, and agreement never to sue. + </p> + <p> + 10 Temporary or dilatory exceptions are merely temporary obstructions, + their only effect being to postpone for a while the plaintiff's right to + sue; for example, the plea of an agreement not to sue for a certain time, + say, five years; for at the end of that time the plaintiff can effectually + pursue his remedy. Consequently persons who would like to sue before the + expiration of the time, but are prevented by the plea of an agreement to + the contrary, or something similar, ought to postpone their action till + the time specified has elapsed; and it is on this account that such + exceptions are called dilatory. If a plaintiff brought his action before + the time had expired, and was met by the exception, this would debar him + from all success in those proceedings, and formerly he was unable to sue + again, owing to his having rashly brought the matter into court, whereby + he consumed his right of action, and lost all chance of recovering what + was his due. Such unbending rules, however, we do not at the present day + approve. Plaintiffs who venture to commence an action before the time + agreed upon, or before the obligation is yet actionable, we subject to the + constitution of Zeno, which that most sacred legislator enacted as to + overclaims in respect of time; whereby, if the plaintiff does not observe + the stay which he has voluntarily granted, or which is implied in the very + nature of the action, the time during which he ought to have postponed his + action shall be doubled, and at its termination the defendant shall not be + suable until he has been reimbursed for all expenses hitherto incurred. So + heavy a penalty it is hoped will induce plaintiffs in no case to sue until + they are entitled. + </p> + <p> + 11 Moreover, some personal incapacities produce dilatory exceptions, such + as those relating to agency, supposing that a party wishes to be + represented in an action by a soldier or a woman; for soldiers may not act + as attorneys in litigation even on behalf of such near relatives as a + father, mother, or wife, not even in virtue of an imperial rescript, + though they may attend to their own affairs without committing a breach of + discipline. We have sanctioned the abolition of those exceptions, by which + the appointment of an attorney was formerly opposed on account of the + infamy of either attorney or principal, because we found that they no + longer were met with in actual practice, and to prevent the trial of the + real issue being delayed by disputes as to their admissibility and + operation. + </p> + <p> + <a name="link2H_4_0098" id="link2H_4_0098"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XIV. OF REPLICATIONS + </h2> + <p> + Sometimes an exception, which prima facie seems just to the defendant, is + unjust to the plaintiff, in which case the latter must protect himself by + another allegation called a replication, because it parries and + counteracts the force of the exception. For example, a creditor may have + agreed with his debtor not to sue him for money due, and then have + subsequently agreed with him that he shall be at liberty to do so; here if + the creditor sues, and the debtor pleads that he ought not to be condemned + on proof being given of the agreement not to sue, he bars the creditor's + claim, for the plea is true, and remains so in spite of the subsequent + agreement; but as it would be unjust that the creditor should be prevented + from recovering, he will be allowed to plead a replication, based upon + that agreement. + </p> + <p> + 1 Sometimes again a replication, though prima facie just, is unjust to the + defendant; in which case he must protect himself by another allegation + called a rejoinder: + </p> + <p> + 2 and if this again, though on the face of it just, is for some reason + unjust to the plaintiff, a still further allegation is necessary for his + protection, which is called a surrejoinder. + </p> + <p> + 3 And sometimes even further additions are required by the multiplicity of + circumstances under which dispositions are made, or by which they are + subsequently affected; as to which fuller information may easily be + gathered from the larger work of the Digest. + </p> + <p> + 4 Exceptions which are open to a defendant are usually open to his surety + as well, as indeed is only fair: for when a surety is sued the principal + debtor may be regarded as the real defendant, because he can be compelled + by the action on agency to repay the surety whatsoever he has disbursed on + his account. Accordingly, if the creditor agrees with his debtor not to + sue, the latter's sureties may plead this agreement, if sued themselves, + exactly as if the agreement had been made with them instead of with the + principal debtor. There are, however, some exceptions which, though + pleadable by a principal debtor, are not pleadable by his surety; for + instance, if a man surrenders his property to his creditors as an + insolvent, and one of them sues him for his debt in full, he can + effectually protect himself by pleading the surrender; but this cannot be + done by his surety, because the creditor's main object, in accepting a + surety for his debtor, is to be able to have recourse to the surety for + the satisfaction of his claim if the debtor himself becomes insolvent. + </p> + <p> + <a name="link2H_4_0099" id="link2H_4_0099"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XV. OF INTERDICTS + </h2> + <p> + We have next to treat of interdicts or of the actions by which they have + been superseded. Interdicts were formulae by which the praetor either + ordered or forbad some thing to be done, and occurred most frequently in + case of litigation about possession or quasi-possession. + </p> + <p> + 1 The first division of interdicts is into orders of abstention, of + restitution, and of production. The first are those by which the praetor + forbids the doing of some act—for instance, the violent ejection of + a bona fide possessor, forcible interference with the internment of a + corpse in a place where that may lawfully be done, building upon sacred + ground, or the doing of anything in a public river or on its banks which + may impede its navigation. The second are those by which he orders + restitution of property, as where he directs possession to be restored to + a 'possessor of goods' of things belonging to an inheritance, and which + have hitherto been in the possession of others under the title of heir, or + without any title at all; or where he orders a person to be reinstated in + possession of land from which he has been forcibly ousted. The third are + those by which he orders the production of persons or property; for + instance, the production of a person whose freedom is in question, of a + freedman whose patron wishes to demand from him certain services, or of + children on the application of the parent in whose power they are. Some + think that the term interdict is properly applied only to orders of + abstention, because it is derived from the verb 'interdicere,' meaning to + denounce or forbid, and that orders of restitution or production are + properly termed decrees; but in practice they are all called interdicts, + because they are given 'inter duos,' between two parties. + </p> + <p> + 2 The next division is into interdicts for obtaining possession, for + retaining possession, and for recovering possession. + </p> + <p> + 3 Interdicts for obtaining possession are exemplified by the one given to + a 'possessor of goods,' which is called 'Quorum bonorum,' and which + enjoins that whatever portion of the goods, whereof possession has been + granted to the claimant, is in the hands of one who holds by the title of + heir or as mere possessor only, shall be delivered up to the grantee of + possession. A person is deemed to hold by the title of heir who thinks he + is an heir; he is deemed to hold as mere possessor who relies on no title + at all, but holds a portion of the whole of the inheritance, knowing that + he is not entitled. It is called an interdict for obtaining possession, + because it is available only for initiating possession; accordingly, it is + not granted to a person who has already had and lost possession. Another + interdict for obtaining possession is that named after Salvius, by which + the landlord gets possession of the tenant's property which has been + hypothecated as a security for rent. + </p> + <p> + 4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for + retaining possession, and are employed when two parties claim ownership in + anything, in order to determine which shall be defendant and which + plaintiff; for no real action can be commenced until it is ascertained + which of the parties is in possession, because law and reason both require + that one of them shall be in possession and shall be sued by the other. As + the role of defendant in a real action is far more advantageous than that + of plaintiff, there is almost invariably a keen dispute as to which party + is to have possession pending litigation: the advantage consisting in + this, that, even if the person in possession has no title as owner, the + possession remains to him unless and until the plaintiff can prove his own + ownership: so that where the rights of the parties are not clear, + judgement usually goes against the plaintiff. Where the dispute relates to + the possession of land or buildings, the interdict called 'Uti possidetis' + is employed; where to movable property, that called 'Utrubi.' Under the + older law their effects were very different. In 'Uti possidetis' the party + in possession at the issue of the interdict was the winner, provided he + had not obtained that possession from his adversary by force, or + clandestinely, or by permission; whether he had obtained it from some one + else in any of these modes was immaterial. In 'Utrubi' the winner was the + party who had been in possession the greater portion of the year next + immediately preceding, provided that possession had not been obtained by + force, or clandestinely, or by permission, from his adversary. At the + present day, however, the practice is different, for as regards the right + to immediate possession the two interdicts are now on the same footing; + the rule being, that whether the property in question be movable or + immovable, the possession is adjudged to the party who has it at the + commencement of the action, provided he had not obtained it by force, or + clandestinely, or by permission, from his adversary. + </p> + <p> + 5 A man's possession includes, besides his own personal possession, the + possession of any one who holds in his name, though not subject to his + power; for instance, his tenant. So also a depositary or borrower for use + may possess for him, as is expressed by the saying that we retain + possession by any one who holds in our name. Moreover, mere intention + suffices for the retention of possession; so that although a man is not in + actual possession either himself or through another, yet if it was not + with the intention of abandoning the thing that he left it, but with that + of subsequently returning to it, he is deemed not to have parted with the + possession. Through what persons we can obtain possession has been + explained in the second Book; and it is agreed on all hands that for + obtaining possession intention alone does not suffice. + </p> + <p> + 6 An interdict for recovering possession is granted to persons who have + been forcibly ejected from land or buildings; their proper remedy being + the interdict 'Unde vi,' by which the ejector is compelled to restore + possession, even though it had been originally obtained from him by the + grantee of the interdict by force, clandestinely, or by permission. But by + imperial constitutions, as we have already observed, if a man violently + seizes on property to which he has a title, he forfeits his right of + ownership; if on property which belongs to some one else, he has not only + to restore it, but also to pay the person whom he has violently + dispossessed a sum of money equivalent to its value. In cases of violent + dispossession the wrongdoer is liable under the lex Iulia relating to + private or public violence, by the former being meant unarmed force, by + the latter dispossession effected with arms; and the term 'arms' must be + taken to include not only shields, swords, and helmets, but also sticks + and stones. + </p> + <p> + 7 Thirdly, interdicts are divided into simple and double. Simple + interdicts are those wherein one party is plaintiff and the other + defendant, as is always the case in orders of restitution or production; + for he who demands restitution or production is plaintiff, and he from + whom it is demanded is defendant. Of interdicts which order abstention + some are simple, others double. The simple are exemplified by those + wherein the praetor commands the defendant to abstain from desecrating + consecrated ground, or from obstructing a public river or its banks; for + he who demands such order is the plaintiff, and he who is attempting to do + the act in question is defendant. Of double interdicts we have examples in + Uti possidetis and Utrubi; they are called double because the footing of + both parties is equal, neither being exclusively plaintiff or defendant, + but each sustaining the double role. + </p> + <p> + 8 To speak of the procedure and result of interdicts under the older law + would now be a waste of words; for when the procedure is what is called + 'extraordinary,' as it is nowadays in all actions, the issue of an + interdict is unnecessary, the matter being decided without any such + preliminary step in much the same way as if it had actually been taken, + and a modified action had arisen on it. + </p> + <p> + <a name="link2H_4_0100" id="link2H_4_0100"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION + </h2> + <p> + It should here be observed that great pains have been taken by those who + in times past had charge of the law to deter men from reckless litigation, + and this is a thing that we too have at heart. The best means of + restraining unjustifiable litigation, whether on the part of a plaintiff + or of a defendant, are money fines, the employment of the oath, and the + fear of infamy. + </p> + <p> + 1 Thus under our constitution, the oath has to be taken by every + defendant, who is not permitted even to state his defence until he swears + that he resists the plaintiff's claim because he believes that his cause + is a good one. In certain cases where the defendant denies his liability + the action is for double or treble the original claim, as in proceedings + on unlawful damages, and for recovery of legacies bequeathed to religious + places. In various actions the damages are multiplied at the outset; in an + action on theft detected in the commission they are quadrupled; for simple + theft they are doubled; for in these and some other actions the damages + are a multiple of the plaintiff's loss, whether the defendant denies or + admits the claim. Vexatious litigation is checked on the part of the + plaintiff also, who under our constitution is obliged to swear on oath + that his action is commenced in good faith; and similar oaths have to be + taken by the advocates of both parties, as is prescribed in other of our + enactments. Owing to these substitutes the old action of dishonest + litigation has become obsolete. The effect of this was to penalize the + plaintiff in a tenth part of the value he claimed by action; but, as a + matter of fact, we found that the penalty was never exacted, and therefore + its place has been taken by the oath above mentioned, and by the rule that + a plaintiff who sues without just cause must compensate his opponent for + all losses incurred, and also pay the costs of the action. + </p> + <p> + 2 In some actions condemnation carries infamy with it, as in those on + theft, robbery, outrage, fraud, guardianship, agency, and deposit, if + direct, not contrary; also in the action on partnership, which is always + direct, and in which infamy is incurred by any partner who suffers + condemnation. In actions on theft, robbery, outrage, and fraud, it is not + only infamous to be condemned, but also to compound, as indeed is only + just; for obligation based on delict differs widely from obligation based + on contract. + </p> + <p> + 3 In commencing an action, the first step depends upon that part of the + Edict which relates to summons; for before anything else is done, the + adversary must be summoned, that is to say, must be called before the + judge who is to try the action. And herein the praetor takes into + consideration the respect due to parents, patrons, and the children and + parents of patrons, and refuses to allow a parent to be summoned by his + child, or a patron by his freedman, unless permission so to do has been + asked of and obtained from him; and for nonobservance of this rule he has + fixed a penalty of fifty solidi. + </p> + <p> + <a name="link2H_4_0101" id="link2H_4_0101"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVII. OF THE DUTIES OF A JUDGE + </h2> + <p> + Finally we have to treat of the duties of a judge; of which the first is + not to judge contrary to statutes, the imperial laws, and custom. + </p> + <p> + 1 Accordingly, if he is trying a noxal action, and thinks that the master + ought to be condemned, he should be careful to word his judgement thus: 'I + condemn Publius Maevius to pay ten aurei to Lucius Titius, or to surrender + to him the slave that did the wrong.' + </p> + <p> + 2 If the action is real, and he finds against the plaintiff, he ought to + absolve the defendant; if against the latter, he ought to order him to + give up the property in question, along with its fruits. If the defendant + pleads that he is unable to make immediate restitution and applies for + execution to be stayed, and such application appears to be in good faith, + it should be granted upon the terms of his finding a surety to guarantee + payment of the damages assessed, if restitution be not made within the + time allowed. If the subject of the action be an inheritance, the same + rule applies as regards fruits as we laid down in speaking of actions for + the recovery of single objects. If the defendant is a mala fide possessor, + fruits which but for his own negligence he might have gathered are taken + into account in much the same way in both actions; but a bona fide + possessor is not held answerable for fruits which he has not consumed or + has not gathered, except from the moment of the commencement of the + action, after which time account is taken as well of fruits which might + have been gathered but for his negligence as of those which have been + gathered and consumed. + </p> + <p> + 3 If the object of the action be production of property, its mere + production by the defendant is not enough, but it must be accompanied by + every advantage derived from it; that is to say, the plaintiff must be + placed in the same position he would have been in if production had been + made immediately on the commencement of the action. Accordingly if, during + the delay occasioned by trial, the possessor has completed a title to the + property by usucapion, he will not be thereby saved from being condemned. + The judge ought also to take into account the mesne profits, or fruits + produced by the property in the interval between the commencement of the + action and judgement. If the defendant pleads that he is unable to make + immediate production, and applies for a stay, and such application appears + to be in good faith, it should be granted on his giving security that he + will render up the property. If he neither complies at once with the + judge's order for production, nor gives security for doing so afterwards, + he ought to be condemned in a sum representing the plaintiff's interest in + having production at the commencement of the proceedings. + </p> + <p> + 4 In an action for the division of a 'family' the judge ought to assign to + each of the heirs specific articles belonging to the inheritance, and if + one of them is unduly favoured, to condemn him, as we have already said, + to pay a fixed sum to the other as compensation. Again, the fact the one + only of two jointheirs has gathered the fruits of land comprised in the + inheritance, or has damaged or consumed something belonging thereto, is + ground for ordering him to pay compensation to the other; and it is + immaterial, so far as this action is concerned, whether the jointheirs are + only two or more in number. + </p> + <p> + 5 The same rules are applied in an action for partition of a number of + things held by joint-owners. If such an action be brought for the + partition of a single object, such as an estate, which easily admits of + division, the judge ought to assign a specific portion of each jointowner, + condemning such one as seems to be unduly favoured to pay a fixed sum to + the other as compensation. If the property cannot be conveniently divided—as + a slave, for instance, or a mule—it ought to be adjudged entirely to + one only of the jointowners, who should be ordered to pay a fixed sum to + the other as compensation. + </p> + <p> + 6 In an action for rectification of boundaries the judge ought to examine + whether an adjudication of property is actually necessary. There is only + one case where this is so; where, namely, convenience requires that the + line of separation between fields belonging to different owners shall be + more clearly marked than heretofore, and where, accordingly, it is + requisite to adjudge part of the one's field to the owner of the other, + who ought, in consequence, to be ordered to pay a fixed sum as + compensation to his neighbour. Another ground for condemnation in this + action is the commission of any malicious act, in respect of the + boundaries, by either of the parties, such as removal of landmarks, or + cutting down boundary trees: as also is contempt of court, expressed by + refusal to allow the fields to be surveyed in accordance with a judge's + order. + </p> + <p> + 7 Wherever property is adjudged to a party in any of these actions, he at + once acquires a complete title thereto. + </p> + <p> + <a name="link2H_4_0102" id="link2H_4_0102"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + TITLE XVIII. OF PUBLIC PROSECUTIONS + </h2> + <p> + Public prosecutions are not commenced as actions are, nor indeed is there + any resemblance between them and the other remedies of which we have + spoken; on the contrary, they differ greatly both in the mode in which + they are commenced, and in the rules by which they are conducted. + </p> + <p> + 1 They are called public because as a general rule any citizen may come + forward as prosecutor in them. + </p> + <p> + 2 Some are capital, others not. By capital prosecutions we mean those in + which the accused may be punished with the extremest severity of the law, + with interdiction from water and fire, with deportation, or with hard + labour in the mines: those which entail only infamy and pecuniary + penalties are public, but not capital. + </p> + <p> + 3 The following statutes relate to public prosecutions. First, there is + the lex Iulia on treason, which includes any design against the Emperor or + State; the penalty under it is death, and even after decease the guilty + person's name and memory are branded with infamy. + </p> + <p> + 4 The lex Iulia, passed for the repression of adultery, punishes with + death not only defilers of the marriage-bed, but also those who indulge in + criminal intercourse with those of their own sex, and inflicts penalties + on any who without using violence seduce virgins or widows of respectable + character. If the seducer be of reputable condition, the punishment is + confiscation of half his fortune; if a mean person, flogging and + relegation. + </p> + <p> + 5 The lex Cornelia on assassination pursues those persons, who commit this + crime with the sword of vengeance, and also all who carry weapons for the + purpose of homicide. By a 'weapon,' as is remarked by Gaius in his + commentary on the statute of the Twelve Tables, is ordinarily meant some + missile shot from a bow, but it also signifies anything thrown with the + hand; so that stones and pieces of wood or iron are included in the term. + 'Telum,' in fact, or 'weapon,' is derived from the Greek 'telou,' and so + means anything thrown to a distance. A similar connexion of meaning may be + found in the Greek word 'belos,' which corresponds to our 'telum,' and + which is derived from 'ballesthai,' to throw, as we learn from Xenophon, + who writes, 'they carried with them 'belei,' namely spears, bows and + arrows, slings, and large numbers of stones.' 'Sicarius,' or assassin, is + derived from 'sica,' a long steel knife. This statute also inflicts + punishment of death on poisoners, who kill men by their hateful arts of + poison and magic, or who publicly sell deadly drugs. + </p> + <p> + 6 A novel penalty has been devised for a most odious crime by another + statute, called the lex Pompeia on parricide, which provides that any + person who by secret machination or open act shall hasten the death of his + parent, or child, or other relation whose murder amounts in law to + parricide, or who shall be an instigator or accomplice of such a crime, + although a stranger, shall suffer the penalty of parricide. This is not + execution by the sword or by fire, or any ordinary form of punishment, but + the criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, + and in this dismal prison is thrown into the sea or a river, according to + the nature of the locality, in order that even before death he shall begin + to be deprived of the enjoyment of the elements, the air being denied him + while alive, and interment in the earth when dead. Those who kill persons + related to them by kinship or affinity, but whose murder is not parricide, + will suffer the penalties of the lex Cornelia on assassination. + </p> + <p> + 7 The lex Cornelia on forgery, otherwise called the statute of wills, + inflicts penalties on all who shall write, seal, or read a forged will or + other document, or shall substitute the same for the real original, or who + shall knowingly and feloniously make, engrave, or use a false seal. If the + criminal be a slave, the penalty fixed by the statute is death, as in the + statute relating to assassins and poisoners: if a free man, deportation. + </p> + <p> + 8 The lex Iulia, relating to public or private violence, deals with those + persons who use force armed or unarmed. For the former, the penalty fixed + by the statute is deportation; for the latter, confiscation of one third + of the offender's property. Ravishment of virgins, widows, persons + professed in religion, or others, and all assistance in its perpetration, + is punished capitally under the provisions of our constitution, by + reference to which full information on this subject is obtainable. + </p> + <p> + 9 The lex Iulia on embezzlement punishes all who steal money or other + property belonging to the State, or devoted to the maintenance of + religion. Judges who during the term of office embezzle public money are + punishable with death, as also are their aiders and abettors, and any who + receive such money knowing it to have been stolen. Other persons who + violate the provisions of this statute are liable to deportation. + </p> + <p> + 10 A public prosecution may also be brought under the lex Fabia relating + to manstealing, for which a capital penalty is sometimes inflicted under + imperial constitutions, sometimes a lighter punishment. + </p> + <p> + 11 Other statutes which give rise to such prosecutions are the lex Iulia + on bribery, and three others, which are similarly entitled, and which + relate to judicial extortion, to illegal combinations for raising the + price of corn, and to negligence in the charge of public moneys. These + deal with special varieties of crime, and the penalties which they inflict + on those who infringe them in no case amount to death, but are less severe + in character. + </p> + <p> + 12 We have made these remarks on public prosecutions only to enable you to + have the merest acquaintance with them, and as a kind of guide to a fuller + study of the subject, which, with the assistance of Heaven, you may make + by reference to the larger volume of the Digest or Pandects. + </p> + <p> + THE END OF THE INSTITUTES OF JUSTINIAN <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> +<pre xml:space="preserve"> + + + + + +End of the Project Gutenberg EBook of The Institutes of Justinian, by +Caesar Flavius Justinian + +*** END OF THIS PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN *** + +***** This file should be named 5983-h.htm or 5983-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/5/9/8/5983/ + +Produced by Howard Sauertieg, and David Widger + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Institutes of Justinian + +Author: Caesar Flavius Justinian + +Translator: J.B. Moyle + +Release Date: June, 2004 [EBook #5983] +Posting Date: April 11, 2009 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN *** + + + + +Produced by Howard Sauertieg + + + + + + + + + + +THE INSTITUTES OF JUSTINIAN + +Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn, +Barrister-at-Law, Fellow and Late Tutor of New College, Oxford + +Fifth Edition (1913) + + + +PROOEMIVM + +In the name of Our Lord, Jesus Christ. + +The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the +Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the +Africans, pious, prosperous, renowned, victorious, and triumphant, ever +august, + +To the youth desirous of studying the law: + +The imperial majesty should be armed with laws as well as glorified +with arms, that there may be good government in times both of war and +of peace, and the ruler of Rome may not only be victorious over his +enemies, but may show himself as scrupulously regardful of justice as +triumphant over his conquered foes. + +With deepest application and forethought, and by the blessing of God, we +have attained both of these objects. The barbarian nations which we have +subjugated know our valour, Africa and other provinces without number +being once more, after so long an interval, reduced beneath the sway of +Rome by victories granted by Heaven, and themselves bearing witness to +our dominion. All peoples too are ruled by laws which we have either +enacted or arranged. Having removed every inconsistency from the sacred +constitutions, hitherto inharmonious and confused, we extended our care +to the immense volumes of the older jurisprudence; and, like sailors +crossing the mid-ocean, by the favour of Heaven have now completed a +work of which we once despaired. When this, with God's blessing, had +been done, we called together that distinguished man Tribonian, master +and exquaestor of our sacred palace, and the illustrious Theophilus and +Dorotheus, professors of law, of whose ability, legal knowledge, and +trusty observance of our orders we have received many and genuine +proofs, and especially commissioned them to compose by our authority and +advice a book of Institutes, whereby you may be enabled to learn your +first lessons in law no longer from ancient fables, but to grasp them by +the brilliant light of imperial learning, and that your ears and minds +may receive nothing useless or incorrect, but only what holds good in +actual fact. And thus whereas in past time even the foremost of you were +unable to read the imperial constitutions until after four years, you, +who have been so honoured and fortunate as to receive both the beginning +and the end of your legal teaching from the mouth of the Emperor, can +now enter on the study of them without delay. After the completion +therefore of the fifty books of the Digest or Pandects, in which all +the earlier law has been collected by the aid of the said distinguished +Tribonian and other illustrious and most able men, we directed the +division of these same Institutes into four books, comprising the +first elements of the whole science of law. In these the law previously +obtaining has been briefly stated, as well as that which after becoming +disused has been again brought to light by our imperial aid. Compiled +from all the Institutes of our ancient jurists, and in particular from +the commentaries of our Gaius on both the Institutes and the common +cases, and from many other legal works, these Institutes were submitted +to us by the three learned men aforesaid, and after reading +and examining them we have given them the fullest force of our +constitutions. + +Receive then these laws with your best powers and with the eagerness of +study, and show yourselves so learned as to be encouraged to hope that +when you have compassed the whole field of law you may have ability to +govern such portion of the state as may be entrusted to you. + +Given at Constantinople the 21st day of November, in the third consulate +of the Emperor Justinian, Father of his Country, ever august. + + + + +BOOK I. + + TITLES + I. Of Justice and Law + II. Of the law of nature, the law of nations, + and the civil law + III. Of the law of persons + IV. Of men free born + V. Of freedmen + VI. Of persons unable to manumit, and the + causes of their incapacity + VII. Of the repeal of the lex Fufia Caninia + VIII. Of persons independent or dependent + IX. Of paternal power + X. Of marriage + XI. Of adoptions + XII. Of the modes in which paternal power + is extinguished + XIII. Of guardianships + XIV. Who can be appointed guardians by will + XV. Of the statutory guardianship of agnates + XVI. Of loss of status + XVII. Of the statutory guardianship of patrons + XVIII. Of the statutory guardianship of parents + XIX. Of fiduciary guardianship + XX. Of Atilian guardians, and those appointed + under the lex Iulia et Titia + XXI. Of the authority of guardians + XXII. Of the modes in which guardianship + is terminated + XXIII. Of curators + XXIV. Of the security to be given by guardians + and curators + XXV. Of guardians' and curators' grounds + of exemption + XXVI. Of guardians or curators who are + suspected + + + + +TITLE I. OF JUSTICE AND LAW + +Justice is the set and constant purpose which gives to every man his +due. + +1 Jurisprudence is the knowledge of things divine and human, the science +of the just and the unjust. + +2 Having laid down these general definitions, and our object being +the exposition of the law of the Roman people, we think that the most +advantageous plan will be to commence with an easy and simple path, and +then to proceed to details with a most careful and scrupulous exactness +of interpretation. Otherwise, if we begin by burdening the student's +memory, as yet weak and untrained, with a multitude and variety of +matters, one of two things will happen: either we shall cause him wholly +to desert the study of law, or else we shall bring him at last, after +great labour, and often, too, distrustful of his own powers (the +commonest cause, among the young, of ill-success), to a point which +he might have reached earlier, without such labour and confident in +himself, had he been led along a smoother path. + +3 The precepts of the law are these: to live honestly, to injure no one, +and to give every man his due. + +4 The study of law consists of two branches, law public, and law +private. The former relates to the welfare of the Roman State; the +latter to the advantage of the individual citizen. Of private law then +we may say that it is of threefold origin, being collected from the +precepts of nature, from those of the law of nations, or from those of +the civil law of Rome. + + + + +TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW + +1 The law of nature is that which she has taught all animals; a law not +peculiar to the human race, but shared by all living creatures, whether +denizens of the air, the dry land, or the sea. Hence comes the union +of male and female, which we call marriage; hence the procreation and +rearing of children, for this is a law by the knowledge of which we see +even the lower animals are distinguished. The civil law of Rome, and +the law of all nations, differ from each other thus. The laws of every +people governed by statutes and customs are partly peculiar to itself, +partly common to all mankind. Those rules which a state enacts for its +own members are peculiar to itself, and are called civil law: those +rules prescribed by natural reason for all men are observed by all +peoples alike, and are called the law of nations. Thus the laws of +the Roman people are partly peculiar to itself, partly common to all +nations; a distinction of which we shall take notice as occasion offers. + +2 Civil law takes its name from the state wherein it binds; for +instance, the civil law of Athens, it being quite correct to speak thus +of the enactments of Solon or Draco. So too we call the law of the Roman +people the civil law of the Romans, or the law of the Quirites; the law, +that is to say, which they observe, the Romans being called Quirites +after Quirinus. Whenever we speak, however, of civil law, without any +qualification, we mean our own; exactly as, when 'the poet' is spoken +of, without addition or qualification, the Greeks understand the great +Homer, and we understand Vergil. But the law of nations is common to the +whole human race; for nations have settled certain things for themselves +as occasion and the necessities of human life required. For instance, +wars arose, and then followed captivity and slavery, which are contrary +to the law of nature; for by the law of nature all men from the +beginning were born free. The law of nations again is the source of +almost all contracts; for instance, sale, hire, partnership, deposit, +loan for consumption, and very many others. + +3 Our law is partly written, partly unwritten, as among the Greeks. +The written law consists of statutes, plebiscites, senatusconsults, +enactments of the Emperors, edicts of the magistrates, and answers of +those learned in the law. + +4 A statute is an enactment of the Roman people, which it used to make +on the motion of a senatorial magistrate, as for instance a consul. A +plebiscite is an enactment of the commonalty, such as was made on the +motion of one of their own magistrates, as a tribune. The commonalty +differs from the people as a species from its genus; for 'the people' +includes the whole aggregate of citizens, among them patricians and +senators, while the term 'commonalty' embraces only such citizens as are +not patricians or senators. After the passing, however, of the statute +called the lex Hortensia, plebiscites acquired for the first time the +force of statutes. + +5 A senatusconsult is a command and ordinance of the senate, for when +the Roman people had been so increased that it was difficult to assemble +it together for the purpose of enacting statutes, it seemed right that +the senate should be consulted instead of the people. + +6 Again, what the Emperor determines has the force of a statute, the +people having conferred on him all their authority and power by the +'lex regia,' which was passed concerning his office and authority. +Consequently, whatever the Emperor settles by rescript, or decides in +his judicial capacity, or ordains by edicts, is clearly a statute: and +these are what are called constitutions. Some of these of course are +personal, and not to be followed as precedents, since this is not the +Emperor's will; for a favour bestowed on individual merit, or a +penalty inflicted for individual wrongdoing, or relief given without +a precedent, do not go beyond the particular person: though others are +general, and bind all beyond a doubt. + +7 The edicts of the praetors too have no small legal authority, and +these we are used to call the 'ius honorarium,' because those who occupy +posts of honour in the state, in other words the magistrates, have given +authority to this branch of law. The curule aediles also used to issue +an edict relating to certain matters, which forms part of the ius +honorarium. + +8 The answers of those learned in the law are the opinions and views of +persons authorized to determine and expound the law; for it was of old +provided that certain persons should publicly interpret the laws, who +were called jurisconsults, and whom the Emperor privileged to give +formal answers. If they were unanimous the judge was forbidden by +imperial constitution to depart from their opinion, so great was its +authority. + +9 The unwritten law is that which usage has approved: for ancient +customs, when approved by consent of those who follow them, are like +statute. + +10 And this division of the civil law into two kinds seems not +inappropriate, for it appears to have originated in the institutions of +two states, namely Athens and Lacedaemon; it having been usual in the +latter to commit to memory what was observed as law, while the Athenians +observed only what they had made permanent in written statutes. + +11 But the laws of nature, which are observed by all nations alike, are +established, as it were, by divine providence, and remain ever fixed and +immutable: but the municipal laws of each individual state are subject +to frequent change, either by the tacit consent of the people, or by the +subsequent enactment of another statute. + +12 The whole of the law which we observe relates either to persons, or +to things, or to actions. And first let us speak of persons: for it is +useless to know the law without knowing the persons for whose sake it +was established. + + + + +TITLE III. OF THE LAW OF PERSONS + +In the law of persons, then, the first division is into free men and +slaves. + +1 Freedom, from which men are called free, is a man's natural power of +doing what he pleases, so far as he is not prevented by force or law: + +2 slavery is an institution of the law of nations, against nature +subjecting one man to the dominion of another. + +3 The name 'slave' is derived from the practice of generals to order the +preservation and sale of captives, instead of killing them; hence they +are also called mancipia, because they are taken from the enemy by the +strong hand. + +4 Slaves are either born so, their mothers being slaves themselves; or +they become so, and this either by the law of nations, that is to say +by capture in war, or by the civil law, as when a free man, over twenty +years of age, collusively allows himself to be sold in order that he may +share the purchase money. + +5 The condition of all slaves is one and the same: in the conditions +of free men there are many distinctions; to begin with, they are either +free born, or made free. + + + + +TITLE IV. OF MEN FREE BORN + +A freeborn man is one free from his birth, being the offspring of +parents united in wedlock, whether both be free born or both made free, +or one made free and the other free born. He is also free born if his +mother be free even though his father be a slave, and so also is +he whose paternity is uncertain, being the offspring of promiscuous +intercourse, but whose mother is free. It is enough if the mother be +free at the moment of birth, though a slave at that of conception: and +conversely if she be free at the time of conception, and then becomes a +slave before the birth of the child, the latter is held to be free born, +on the ground that an unborn child ought not to be prejudiced by the +mother's misfortune. Hence arose the question of whether the child of a +woman is born free, or a slave, who, while pregnant, is manumitted, and +then becomes a slave again before delivery. Marcellus thinks he is born +free, for it is enough if the mother of an unborn infant is free at any +moment between conception and delivery: and this view is right. + +1 The status of a man born free is not prejudiced by his being placed +in the position of a slave and then being manumitted: for it has been +decided that manumission cannot stand in the way of rights acquired by +birth. + + + + +TITLE V. OF FREEDMEN + +Those are freedmen, or made free, who have been manumitted from legal +slavery. Manumission is the giving of freedom; for while a man is in +slavery he is subject to the power once known as 'manus'; and from that +power he is set free by manumission. All this originated in the law +of nations; for by natural law all men were born free--slavery, and by +consequence manumission, being unknown. But afterwards slavery came in +by the law of nations; and was followed by the boon of manumission; so +that though we are all known by the common name of 'man,' three classes +of men came into existence with the law of nations, namely men free +born, slaves, and thirdly freedmen who had ceased to be slaves. + +1 Manumission may take place in various ways; either in the holy church, +according to the sacred constitutions, or by default in a fictitious +vindication, or before friends, or by letter, or by testament or any +other expression of a man's last will: and indeed there are many other +modes in which freedom may be acquired, introduced by the constitutions +of earlier emperors as well as by our own. + +2 It is usual for slaves to be manumitted by their masters at any time, +even when the magistrate is merely passing by, as for instance while the +praetor or proconsul or governor of a province is going to the baths or +the theatre. + +3 Of freedmen there were formerly three grades; for those who were +manumitted sometimes obtained a higher freedom fully recognised by the +laws, and became Roman citizens; sometimes a lower form, becoming by +the lex Iunia Norbana Latins; and sometimes finally a liberty still more +circumscribed, being placed by the lex Aelia Sentia on the footing of +enemies surrendered at discretion. This last and lowest class, however, +has long ceased to exist, and the title of Latin also had become rare: +and so in our goodness, which desires to raise and improve in every +matter, we have amended this in two constitutions, and reintroduced the +earlier usage; for in the earliest infancy of Rome there was but one +simple type of liberty, namely that possessed by the manumitter, the +only distinction possible being that the latter was free born, while +the manumitted slave became a freedman. We have abolished the class of +'dediticii,' or enemies surrendered at discretion, by our constitution, +published among those our decisions, by which, at the suggestion of the +eminent Tribonian, our quaestor, we have set at rest the disputes of +the older law. By another constitution, which shines brightly among the +imperial enactments, and suggested by the same quaestor, we have altered +the position of the 'Latini Iuniani,' and dispensed with all the rules +relating to their condition; and have endowed with the citizenship +of Rome all freedmen alike, without regard to the age of the person +manuumitted, and nature of the master's ownership, or the mode of +manumission, in accordance with the earlier usage; with the addition of +many new modes in which freedom coupled with the Roman citizenship, the +only kind of freedom now known may be bestowed on slaves. + + + + +TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR +INCAPACITY + +In some cases, however, manumission is not permitted; for an owner who +would defraud his creditors by an intended manumission attempts in vain +to manumit, the act being made of no effect by the lex Aelia Sentia. + +1 A master, however, who is insolvent may institute one of his slaves +heir in his will, conferring freedom on him at the same time, so that +he may become free and his sole and necessary heir, provided no one else +takes as heir under the will, either because no one else was instituted +at all, or because the person instituted for some reason or other does +not take the inheritance. And this was a judicious provision of the +lex Aelia Sentia, for it was most desirable that persons in embarrassed +circumstances, who could get no other heir, should have a slave as +necessary heir to satisfy their creditors' claims, or that at least (if +he did not do this) the creditors might sell the estate in the slave's +name, so as to save the memory of the deceased from disrepute. + +2 The law is the same if a slave be instituted heir without liberty +being expressly given him, this being enacted by our constitution in +all cases, and not merely where the master is insolvent; so that in +accordance with the modern spirit of humanity, institution will be +equivalent to a gift of liberty; for it is unlikely, in spite of the +omission of the grant of freedom, that one should have wished the person +whom one has chosen as one's heir to remain a slave, so that one should +have no heir at all. + +3 If a person is insolvent at the time of a manumission, or becomes so +by the manumission itself, this is manumission in fraud of creditors. +It is, however, now settled law, that the gift of liberty is not avoided +unless the intention of the manumitter was fraudulent, even though his +property is in fact insufficient to meet his creditors' claims; for men +often hope and believe that they are better off than they really are. +Consequently, we understand a gift of liberty to be avoided only when +the creditors are defrauded both by the intention of the manumitter, +and in fact: that is to say, by his property being insufficient to meet +their claims. + +4 The same lex Aelia Sentia makes it unlawful for a master under twenty +years of age to manumit, except in the mode of fictitious vindication, +preceded by proof of some legitimate motive before the council. + +5 It is a legitimate motive of manumission if the slave to be manumitted +be, for instance, the father or mother of the manumitter, or his son +or daughter, or his natural brother or sister, or governor or nurse or +teacher, or fosterson or fosterdaughter or fosterbrother, or a slave +whom he wishes to make his agent, or a female slave whom he intends to +marry; provided he marry her within six months, and provided that the +slave intended as an agent is not less than seventeen years of age at +the time of manumission. + +6 When a motive for manumission, whether true or false, has once been +proved, the council cannot withdraw its sanction. + +7 Thus the lex Aelia Sentia having prescribed a certain mode of +manumission for owners under twenty, it followed that though a person +fourteen years of age could make a will, and therein institute an heir +and leave legacies, yet he could not confer liberty on a slave until he +had completed his twentieth year. But it seemed an intolerable hardship +that a man who had the power of disposing freely of all his property +by will should not be allowed to give his freedom to a single slave: +wherefore we allow him to deal in his last will as he pleases with his +slaves as with the rest of his property, and even to give them their +liberty if he will. But liberty being a boon beyond price, for which +very reason the power of manumission was denied by the older law to +owners under twenty years of age, we have as it were selected a middle +course, and permitted persons under twenty years of age to manumit their +slaves by will, but not until they have completed their seventeenth +and entered on their eighteenth year. For when ancient custom allowed +persons of this age to plead on behalf of others, why should not their +judgement be deemed sound enough to enable them to use discretion in +giving freedom to their own slaves? + + + + +TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA + +Moreover, by the lex Fufia Caninia a limit was placed on the number of +slaves who could be manumitted by their master's testament: but this +law we have thought fit to repeal, as an obstacle to freedom and to some +extent invidious, for it was certainly inhuman to take away from a man +on his deathbed the right of liberating the whole of his slaves, which +he could have exercised at any moment during his lifetime, unless there +were some other obstacle to the act of manumission. + + + + +TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT + +Another division of the law relating to persons classifies them as +either independent or dependent. Those again who are dependent are in +the power either of parents or of masters. Let us first then consider +those who are dependent, for by learning who these are we shall at the +same time learn who are independent. And first let us look at those who +are in the power of masters. + +1 Now slaves are in the power of masters, a power recognised by the +law of all nations, for all nations present the spectacle of masters +invested with power of life and death over slaves; and to whatever is +acquired through a slave his owner is entitled. + +2 But in the present day no one under our sway is permitted to +indulge in excessive harshness towards his slaves, without some reason +recognised by law; for, by a constitution of the Emperor Antoninus Pius, +a man is made as liable to punishment for killing his own slave as for +killing the slave of another person; and extreme severity on the part of +masters is checked by another constitution whereby the same Emperor, in +answer to inquiries from presidents of provinces concerning slaves who +take refuge at churches or statues of the Emperor, commanded that on +proof of intolerable cruelty a master should be compelled to sell his +slaves on fair terms, so as to receive their value. And both of these +are reasonable enactments, for the public interest requires that no one +should make an evil use of his own property. The terms of the rescript +of Antoninus to Aelius Marcianus are as follow:--'The powers of masters +over their slaves ought to continue undiminished, nor ought any man to +be deprived of his lawful rights; but it is the master's own interest +that relief justly sought against cruelty, insufficient sustenance, or +intolerable wrong, should not be denied. I enjoin you then to look +into the complaints of the slaves of Iulius Sabinus, who have fled for +protection to the statue of the Emperor, and if you find them treated +with undue harshness or other ignominious wrong, order them to be sold, +so that they may not again fall under the power of their master; and the +latter will find that if he attempts to evade this my enactment, I shall +visit his offence with severe punishment.' + + + + +TITLE IX. OF PATERNAL POWER + +Our children whom we have begotten in lawful wedlock are in our power. + +1 Wedlock or matrimony is the union of male and female, involving the +habitual intercourse of daily life. + +2 The power which we have over our children is peculiar to Roman +citizens, and is found in no other nation. + +3 The offspring then of you and your wife is in your power, and so too +is that of your son and his wife, that is to say, your grandson and +granddaughter, and so on. But the offspring of your daughter is not in +your power, but in that of its own father. + + + + +TITLE X. OF MARRIAGE + +Roman citizens are joined together in lawful wedlock when they are +united according to law, the man having reached years of puberty, and +the woman being of a marriageable age, whether they be independent or +dependent: provided that, in the latter case, they must have the consent +of the parents in whose power they respectively are, the necessity of +which, and even of its being given before the marriage takes place, is +recognised no less by natural reason than by law. Hence the question has +arisen, can the daughter or son of a lunatic lawfully contract marriage? +and as the doubt still remained with regard to the son, we decided that, +like the daughter, the son of a lunatic might marry even without the +intervention of his father, according to the mode prescribed by our +constitution. + +1 It is not every woman that can be taken to wife: for marriage with +certain classes of persons is forbidden. Thus, persons related as +ascendant and descendant are incapable of lawfully intermarrying; for +instance, father and daughter, grandfather and granddaughter, mother and +son, grandmother and grandson, and so on ad infinitum; and the union of +such persons is called criminal and incestuous. And so absolute is +the rule, that persons related as ascendant and descendant merely by +adoption are so utterly prohibited from intermarriage that dissolution +of the adoption does not dissolve the prohibition: so that an +adoptive daughter or granddaughter cannot be taken to wife even after +emancipation. + +2 Collateral relations also are subject to similar prohibitions, but +not so stringent. Brother and sister indeed are prohibited from +intermarriage, whether they are both of the same father and mother, or +have only one parent in common: but though an adoptive sister cannot, +during the subsistence of the adoption, become a man's wife, yet if the +adoption is dissolved by her emancipation, or if the man is emancipated, +there is no impediment to their intermarriage. Consequently, if a man +wished to adopt his son-in-law, he ought first to emancipate his +daughter: and if he wished to adopt his daughter-in-law, he ought first to +emancipate his son. + +3 A man may not marry his brother's or his sister's daughter, or even +his or her granddaughter, though she is in the fourth degree; for when +we may not marry a person's daughter, we may not marry the granddaughter +either. But there seems to be no obstacle to a man's marrying the +daughter of a woman whom his father has adopted, for she is no relation +of his by either natural or civil law. + +4 The children of two brothers or sisters, or of a brother and sister, +may lawfully intermarry. + +5 Again, a man may not marry his father's sister, even though the tie +be merely adoptive, or his mother's sister: for they are considered to +stand in the relation of ascendants. For the same reason too a man may +not marry his great-aunt either paternal or maternal. + +6 Certain marriages again are prohibited on the ground of affinity, or +the tie between a man or his wife and the kin of the other respectively. +For instance, a man may not marry his wife's daughter or his son's wife, +for both are to him in the position of daughters. By wife's daughter +or son's wife we must be understood to mean persons who have been thus +related to us; for if a woman is still your daughterinlaw, that is, +still married to your son, you cannot marry her for another reason, +namely, because she cannot be the wife of two persons at once. So too +if a woman is still your stepdaughter, that is, if her mother is still +married to you, you cannot marry her for the same reason, namely, +because a man cannot have two wives at the same time. + +7 Again, it is forbidden for a man to marry his wife's mother or his +father's wife, because to him they are in the position of a mother, +though in this case too our statement applies only after the +relationship has finally terminated; otherwise, if a woman is still your +stepmother, that is, is married to your father, the common rule of law +prevents her from marrying you, because a woman cannot have two husbands +at the same time: and if she is still your wife's mother, that is, if +her daughter is still married to you, you cannot marry her because you +cannot have two wives at the same time. + +8 But a son of the husband by another wife, and a daughter of the wife +by another husband, and vice versa, can lawfully intermarry, even though +they have a brother or sister born of the second marriage. + +9 If a woman who has been divorced from you has a daughter by a second +husband, she is not your stepdaughter, but Iulian is of opinion that you +ought not to marry her, on the ground that though your son's betrothed +is not your daughterinlaw, nor your father's betrothed you stepmother, +yet it is more decent and more in accordance with what is right to +abstain from intermarrying with them. + +10 It is certain that the rules relating to the prohibited degrees of +marriage apply to slaves: supposing, for instance, that a father and +daughter, or a brother and sister, acquired freedom by manumission. + +11 There are also other persons who for various reasons are forbidden to +intermarry, a list of whom we have permitted to be inserted in the books +of the Digest or Pandects collected from the older law. + +12 Alliances which infringe the rules here stated do not confer the +status of husband and wife, nor is there in such case either wedlock or +marriage or dowry. Consequently children born of such a connexion +are not in their father's power, but as regards the latter are in +the position of children born of promiscuous intercourse, who, their +paternity being uncertain, are deemed to have no father at all, and +who are called bastards, either from the Greek word denoting illicit +intercourse, or because they are fatherless. Consequently, on the +dissolution of such a connexion there can be no claim for return of +dowry. Persons who contract prohibited marriages are subjected to +penalties set forth in our sacred constitutions. + +13 Sometimes it happens that children who are not born in their father's +power are subsequently brought under it. Such for instance is the case +of a natural son made subject to his father's power by being inscribed a +member of the curia; and so too is that of a child of a free woman with +whom his father cohabited, though he could have lawfully married her, +who is subjected to the power of his father by the subsequent execution +of a dowry deed according to the terms of our constitution: and the same +boon is in effect bestowed by that enactment on children subsequently +born of the same marriage. + + + + +TITLE XI. OF ADOPTIONS + +Not only natural children are subject, as we said, to paternal power, +but also adoptive children. + +1 Adoption is of two forms, being effected either by rescript of the +Emperor, or by the judicial authority of a magistrate. The first is the +mode in which we adopt independent persons, and this form of adoption +is called adrogation: the second is the mode in which we adopt a person +subject to the power of an ascendant, whether a descendant in the first +degree, as a son or daughter, or in a remoter degree, as a grandson, +granddaughter, great-grandson, or great-granddaughter. + +2 But by the law, as now settled by our constitution, when a child in +power is given in adoption to a stranger by his natural father, the +power of the latter is not extinguished; no right passes to the adoptive +father, nor is the person adopted in his power, though we have given a +right of succession in case of the adoptive father dying intestate. +But if the person to whom the child is given in adoption by its natural +father is not a stranger, but the child's own maternal grandfather, or, +supposing the father to have been emancipated, its paternal grandfather, +or its great-grandfather paternal or maternal, in this case, because the +rights given by nature and those given by adoption are vested in one +and the same person, the old power of the adoptive father is left +unimpaired, the strength of the natural bond of blood being augmented by +the civil one of adoption, so that the child is in the family and +power of an adoptive father, between whom and himself there existed +antecedently the relationship described. + +3 When a child under the age of puberty is adopted by rescript of +the Emperor, the adrogation is only permitted after cause shown, the +goodness of the motive and the expediency of the step for the pupil +being inquired into. The adrogation is also made under certain +conditions; that is to say, the adrogator has to give security to a +public agent or attorney of the people, that if the pupil should die +within the age of puberty, he will return his property to the persons +who would have succeeded him had no adoption taken place. The adoptive +father again may not emancipate them unless upon inquiry they are found +deserving of emancipation, or without restoring them their property. +Finally, if he disinherits him at death, or emancipates him in his +lifetime without just cause, he is obliged to leave him a fourth of +his own property, besides that which he brought him when adopted, or by +subsequent acquisition. + +4 It is settled that a man cannot adopt another person older than +himself, for adoption imitates nature, and it would be unnatural for a +son to be older than his father. Consequently a man who desires either +to adopt or to adrogate a son ought to be older than the latter by the +full term of puberty, or eighteen years. + +5 A man may adopt a person as grandson or granddaughter, or as +great-grandson or great-granddaughter, and so on, without having a son at +all himself; 6 and similarly he may adopt another man's son as grandson, +or another man's grandson as son. + +7 If he wishes to adopt some one as grandson, whether as the son of an +adoptive son of his own, or of a natural son who is in his power, the +consent of this son ought to be obtained, lest a family heir be thrust +upon him against his will: but on the other hand, if a grandfather +wishes to give a grandson by a son in adoption to some one else, the +son's consent is not requisite. + +8 An adoptive child is in most respects in the same position, as regards +the father, as a natural child born in lawful wedlock. Consequently +a man can give in adoption to another a person whom he has adopted by +imperial rescript, or before the praetor or governor of a province, +provided that in this latter case he was not a stranger (i.e. was a +natural descendant) before he adopted him himself. + +9 Both forms of adoption agree in this point, that persons incapable +of procreation by natural impotence are permitted to adopt, whereas +castrated persons are not allowed to do so. + +10 Again, women cannot adopt, for even their natural children are not +subject to their power; but by the imperial clemency they are enabled to +adopt, to comfort them for the loss of children who have been taken from +them. + +11 It is peculiar to adoption by imperial rescript, that children in the +power of the person adrogated, as well as their father, fall under the +power of the adrogator, assuming the position of grandchildren. Thus +Augustus did not adopt Tiberius until Tiberius had adopted Germanicus, +in order that the latter might become his own grandson directly the +second adoption was made. + +12 The old writers record a judicious opinion contained in the writings +of Cato, that the adoption of a slave by his master is equivalent to +manumission. In accordance with this we have in our wisdom ruled by a +constitution that a slave to whom his master gives the title of son by +the solemn form of a record is thereby made free, although this is not +sufficient to confer on him the rights of a son. + + + + +TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED + +Let us now examine the modes in which persons dependent on a superior +become independent. How slaves are freed from the power of their +masters can be gathered from what has already been said respecting their +manumission. Children under paternal power become independent at the +parent's death, subject, however, to the following distinction. +The death of a father always releases his sons and daughters from +dependence; the death of a grandfather releases his grandchildren from +dependence only provided that it does not subject them to the power of +their father. Thus, if at the death of the grandfather the father is +alive and in his power, the grandchildren, after the grandfather's +death, are in the power of the father; but if at the time of the +grandfather's death the father is dead, or not subject to the +grandfather, the grandchildren will not fall under his power, but become +independent. + +1 As deportation to an island for some penal offence entails loss of +citizenship, such removal of a man from the list of Roman citizens has, +like his death, the effect of liberating his children from his power; +and conversely, the deportation of a person subject to paternal power +terminates the power of the parent. In either case, however, if the +condemned person is pardoned by the grace of the Emperor, he recovers +all his former rights. + +2 Relegation to an island does not extinguish paternal power, whether it +is the parent or the child who is relegated. + +3 Again, a father's power is extinguished by his becoming a 'slave of +punishment,' for instance, by being condemned to the mines or exposed to +wild beasts. + +4 A person in paternal power does not become independent by entering +the army or becoming a senator, for military service or consular +dignity does not set a son free from the power of his father. But by +our constitution the supreme dignity of the patriciate frees a son from +power immediately on the receipt of the imperial patent; for who would +allow anything so unreasonable as that, while a father is able by +emancipation to release his son from the tie of his power, the imperial +majesty should be unable to release from dependence on another the man +whom it has selected as a father of the State? 5 Again, capture of the +father by the enemy makes him a slave of the latter; but the status +of his children is suspended by his right of subsequent restoration by +postliminium; for on escape from captivity a man recovers all his former +rights, and among them the right of paternal power over his children, +the law of postliminium resting on a fiction that the captive has never +been absent from the state. But if he dies in captivity the son is +reckoned to have been independent from the moment of his father's +capture. So too, if a son or a grandson is captured by the enemy, the +power of his ascendant is provisionally suspended, though he may again +be subjected to it by postliminium. This term is derived from 'limen' +and 'post,' which explains why we say that the person who has been +captured by the enemy and has come back into our territories has +returned by postliminium: for just as the threshold forms the boundary +of a house, so the ancients represented the boundaries of the empire as +a threshold; and this is also the origin of the term 'limes, signifying +a kind of end and limit. Thus postliminium means that the captive +returns by the same threshold at which he was lost. A captive who is +recovered after a victory over the enemy is deemed to have returned by +postliminium. + +6 Emancipation also liberates children from the power of the parent. +Formerly it was effected either by the observance of an old form +prescribed by statute by which the son was fictitiously sold and then +manumitted, or by imperial rescript. Our forethought, however, has +amended this by a constitution, which has abolished the old fictitious +form, and enabled parents to go directly to a competent judge or +magistrate, and in his presence release their sons or daughters, +grandsons or granddaughters, and so on, from their power. After this, +the father has by the praetor's edict the same rights over the property +of the emancipated child as a patron has over the property of his +freedman: and if at the time of emancipation the child, whether son or +daughter, or in some remoter degree of relationship, is beneath the age +of puberty, the father becomes by the emancipation his or her guardian. + +7 It is to be noted, however, that a grandfather who has both a son, +and by that son a grandson or granddaughter, in his power, may either +release the son from his power and retain the grandson or granddaughter, +or emancipate both together; and a great-grandfather has the same +latitude of choice. + +8 Again, if a father gives a son whom he has in his power in adoption +to the son's natural grandfather or great-grandfather, in accordance +with our constitution on this subject, that is to say, by declaring +his intention, before a judge with jurisdiction in the matter, in the +official records, and in the presence and with the consent of the person +adopted, the natural father's power is thereby extinguished, and passes +to the adoptive father, adoption by whom under these circumstances +retains, as we said, all its old legal consequences. + +9 It is to be noted, that if your daughterinlaw conceives by your son, +and you emancipate or give the latter in adoption during her pregnancy, +the child when born will be in your power; but if the child is conceived +after its father's emancipation or adoption, it is in the power of its +natural father or its adoptive grandfather, as the case may be. + +10 Children, whether natural or adoptive, are only very rarely able to +compel their parent to release them from his power. + + + + +TITLE XIII. OF GUARDIANSHIPS + +Let us now pass on to another classification of persons. Persons +not subject to power may still be subject either to guardians or to +curators, or may be exempt from both forms of control. We will first +examine what persons are subject to guardians and curators, and thus +we shall know who are exempt from both kinds of control. And first of +persons subject to guardianship or tutelage. + +1 Guardianship, as defined by Servius, is authority and control over a +free person, given and allowed by the civil law, in order to protect one +too young to defend himself: + +2 and guardians are those persons who possess this authority and +control, their name being derived from their very functions; for they +are called guardians as being protectors and defenders, just as those +entrusted with the care of sacred buildings are called 'aeditui.' + +3 The law allows a parent to appoint guardians in his will for those +children in his power who have not attained the age of puberty, without +distinction between sons and daughters; but a grandson or granddaughter +can receive a testamentary guardian only provided that the death of the +testator does not bring them under the power of their own father. +Thus, if your son is in your power at the time of your death, your +grandchildren by him cannot have a guardian given them by your will, +although they are in your power, because your death leaves them in the +power of their father. + +4 And as in many other matters afterborn children are treated on the +footing of children born before the execution of the will, so it is +ruled that afterborn children, as well as children born before the will +was made, may have guardians therein appointed to them, provided that +if born in the testator's lifetime they would be family heirs and in his +power. + +5 If a testamentary guardian be given by a father to his emancipated +son, he must be approved by the governor in all cases, though inquiry +into the case is unnecessary. + + + + +TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL + +1 Persons who are in the power of others may be appointed testamentary +guardians no less than those who are independent; and a man can also +validly appoint one of his own slaves as testamentary guardian, giving +him at the same time his liberty; and even in the absence of express +manumission his freedom is to be presumed to have been tacitly conferred +on him, whereby his appointment becomes a valid act, although of course +it is otherwise if the testator appointed him guardian in the erroneous +belief that he was free. The appointment of another man's slave as +guardian, without any addition or qualification, is void, though valid +if the words 'when he shall be free' are added: but this latter form is +ineffectual if the slave is the testator's own, the appointment being +void from the beginning. + +2 If a lunatic or minor is appointed testamentary guardian, he cannot +act until, if a lunatic, he recovers his faculties, and, if a minor, he +attains the age of twentyfive years. + +3 There is no doubt that a guardian may be appointed for and from a +certain time, or conditionally, or before the institution of the heir. + +4 A guardian cannot, however, be appointed for a particular matter or +business, because his duties relate to the person, and not merely to a +particular business or matter. + +5 If a man appoints a guardian to his sons or daughters, he is held to +have intended them also for such as may be afterborn, for the latter +are included in the terms son and daughter. In the case of grandsons, +a question may arise whether they are implicitly included in an +appointment of guardians to sons; to which we reply, that they are +included in an appointment of guardians if the term used is 'children,' +but not if it is 'sons': for the words son and grandson have quite +different meanings. Of course an appointment to afterborn children +includes all children, and not sons only. + + + + +TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES + +In default of a testamentary guardian, the statute of the Twelve Tables +assigns the guardianship to the nearest agnates, who are hence called +statutory guardians. + +1 Agnates are persons related to one another by males, that is, through +their male ascendants; for instance, a brother by the same father, a +brother's son, or such son's son, a father's brother, his son or son's +son. But persons related only by blood through females are not agnates, +but merely cognates. Thus the son of your father's sister is no agnate +of yours, but merely your cognate, and vice versa; for children are +member's of their father's family, and not of your mother's. + +2 It was said that the statute confers the guardianship, in case +of intestacy, on the nearest agnates; but by intestacy here must be +understood not only complete intestacy of a person having power to +appoint a testamentary guardian, but also the mere omission to make +such appointment, and also the case of a person appointed testamentary +guardian dying in the testator's lifetime. + +3 Loss of status of any kind ordinarily extinguishes rights by agnation, +for agnation is a title of civil law. Not every kind of loss of status, +however, affects rights by cognation; because civil changes cannot +affect rights annexed to a natural title to the same extent that they +can affect those annexed to a civil one. + + + + +TITLE XVI. OF LOSS OF STATUS + +Loss of status, or change in one's previous civil rights, is of three +orders, greatest, minor or intermediate, and least. + +1 The greatest loss of status is the simultaneous loss of citizenship +and freedom, exemplified in those persons who by a terrible sentence are +made 'slaves of punishment,' in freedmen condemned for ingratitude to +their patrons, and in those who allow themselves to be sold in order to +share the purchase money when paid. + +2 Minor or intermediate loss of status is loss of citizenship +unaccompanied by loss of liberty, and is incident to interdiction of +fire and water and to deportation to an island. + +3 The least loss of status occurs when citizenship and freedom are +retained, but a man's domestic position is altered, and is exemplified +by adrogation and emancipation. + +4 A slave does not suffer loss of status by being manumitted, for while +a slave he had no civil rights: + +5 and where the change is one of dignity, rather than of civil rights, +there is no loss of status; thus it is no loss of status to be removed +from the senate. + +6 When it was said that rights by cognation are not affected by loss of +status, only the least loss of status was meant; by the greatest loss +of status they are destroyed--for instance, by a cognate's becoming +a slave--and are not recovered even by subsequent manumission. Again, +deportation to an island, which entails minor or intermediate loss of +status, destroys rights by cognation. + +7 When agnates are entitled to be guardians, it is not all who are so +entitled, but only those of the nearest degree, though if all are in the +same degree, all are entitled. + + + + +TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS + +The same statute of the Twelve Tables assigns the guardianship of +freedmen and freedwomen to the patron and his children, and this +guardianship, like that of agnates, is called statutory guardianship; +not that it is anywhere expressly enacted in that statute, but because +its interpretation by the jurists has procured for it as much reception +as it could have obtained from express enactment: the fact that the +inheritance of a freedman or freedwoman, when they die intestate, was +given by the statute to the patron and his children, being deemed a +proof that they were intended to have the guardianship also, partly +because in dealing with agnates the statute coupled guardianship with +succession, and partly on the principle that where the advantage of +the succession is, there, as a rule, ought too to be the burden of the +guardianship. We say 'as a rule,' because if a slave below the age of +puberty is manumitted by a woman, though she is entitled, as patroness, +to the succession, another person is guardian. + + + + +TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS + +The analogy of the patron guardian led to another kind of socalled +statutory guardianship, namely that of a parent over a son or daughter, +or a grandson or granddaughter by a son, or any other descendant through +males, whom he emancipates below the age of puberty: in which case he +will be statutory guardian. + + + + +TITLE XIX. OF FIDUCIARY GUARDIANSHIP + +There is another kind of guardianship known as fiduciary guardianship, +which arises in the following manner. If a parent emancipates a son or +daughter, a grandson or granddaughter, or other descendant while under +the age of puberty, he becomes their statutory guardian: but if at his +death he leaves male children, they become fiduciary guardians of their +own sons, or brothers and sisters, or other relatives who had been thus +emancipated. But on the decease of a patron who is statutory guardian +his children become statutory guardians also; for a son of a deceased +person, supposing him not to have been emancipated during his father's +lifetime, becomes independent at the latter's death, and does not +fall under the power of his brothers, nor, consequently, under their +guardianship; whereas a freedman, had he remained a slave, would at +his master's death have become the slave of the latter's children. The +guardianship, however, is not cast on these persons unless they are of +full age, which indeed has been made a general rule in guardianship and +curatorship of every kind by our constitution. + + + + +TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA +ET TITIA + +Failing every other kind of guardian, at Rome one used to be appointed +under the lex Atilia by the praetor of the city and the majority of the +tribunes of the people; in the provinces one was appointed under the lex +Iulia et Titia by the president of the province. + +1 Again, on the appointment of a testamentary guardian subject to a +condition, or on an appointment limited to take effect after a certain +time, a substitute could be appointed under these statutes during the +pendency of the condition, or until the expiration of the term: and +even if no condition was attached to the appointment of a testamentary +guardian, a temporary guardian could be obtained under these statutes +until the succession had vested. In all these cases the office of the +guardian so appointed determined as soon as the condition was fulfilled, +or the term expired, or the succession vested in the heir. + +2 On the capture of a guardian by the enemy, the same statutes regulated +the appointment of a substitute, who continued in office until the +return of the captive; for if he returned, he recovered the guardianship +by the law of postliminium. + +3 But guardians have now ceased to be appointed under these statutes, +the place of the magistrates directed by them to appoint being taken, +first, by the consuls, who began to appoint guardians to pupils of +either sex after inquiry into the case, and then by the praetors, who +were substituted for the consuls by the imperial constitutions; for +these statutes contained no provisions as to security to be taken from +guardians for the safety of their pupils' property, or compelling them +to accept the office in case of disinclination. + +4 Under the present law, guardians are appointed at Rome by the +prefect of the city, and by the praetor when the case falls within his +jurisdiction; in the provinces they are appointed, after inquiry, by +the governor, or by inferior magistrates at the latter's behest if the +pupil's property is of no great value. + +5 By our constitution, however, we have done away with all difficulties +of this kind relating to the appointing person, and dispensed with the +necessity of waiting for an order from the governor, by enacting that if +the property of the pupil or adult does not exceed five hundred solidi, +guardians or curators shall be appointed by the officers known as +defenders of the city, along with the holy bishop of the place, or in +the presence of other public persons, or by the magistrates, or by the +judge of the city of Alexandria; security being given in the amounts +required by the constitution, and those who take it being responsible if +it be insufficient. + +6 The wardship of children below the age of puberty is in accordance +with the law of nature, which prescribes that persons of immature years +shall be under another's guidance and control. + +7 As guardians have the management of their pupils' business, they are +liable to be sued on account of their administration as soon as the +pupil attains the age of puberty. + + + + +TITLE XXI. OF THE AUTHORITY OF GUARDIANS + +In some cases a pupil cannot lawfully act without the authority of +his guardian, in others he can. Such authority, for instance, is not +necessary when a pupil stipulates for the delivery of property, though +it is otherwise where he is the promisor; for it is an established rule +that the guardian's authority is not necessary for any act by which the +pupil simply improves his own position, though it cannot be dispensed +with where he proposes to make it worse. Consequently, unless the +guardian authorizes all transactions generating bilateral obligations, +such as sale, hire, agency, and deposit, the pupil is not bound, +though he can compel the other contracting party to discharge his own +obligation. + +1 Pupils, however, require their guardian's authority before they can +enter on an inheritance, demand the possession of goods, or accept an +inheritance by way of trust, even though such act be advantageous to +them, and involves no chance of loss. + +2 If the guardian thinks the transaction will be beneficial to his +pupil, his authority should be given presently and on the spot. +Subsequent ratification, or authority given by letter, has no effect. + +3 In case of a suit between guardian and pupil, as the former cannot +lawfully authorize an act in which he is personally concerned or +interested, a curator is now appointed, in lieu of the old praetorian +guardian, with whose cooperation the suit is carried on, his office +determining as soon as it is decided. + + + + +TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED + +Pupils of either sex are freed from guardianship when they reach the age +of puberty, which the ancients were inclined to determine, in the +case of males, not only by age, but also by reference to the physical +development of individuals. Our majesty, however, has deemed it not +unworthy of the purity of our times to apply in the case of males also +the moral considerations which, even among the ancients, forbade in the +case of females as indecent the inspection of the person. Consequently +by the promulgation of our sacred constitution we have enacted that +puberty in males shall be considered to commence immediately on +the completion of the fourteenth year, leaving unaltered the rule +judiciously laid down by the ancients as to females, according to which +they are held fit for marriage after completing their twelfth year. + +1 Again, tutelage is terminated by adrogation or deportation of the +pupil before he attains the age of puberty, or by his being reduced to +slavery or taken captive by the enemy. + +2 So too if a testamentary guardian be appointed to hold office until +the occurrence of a condition, on this occurrence his office determines. + +3 Similarly tutelage is terminated by the death either of pupil or of +guardian. + +4 If a guardian suffers such a loss of status as entails loss of either +liberty or citizenship, his office thereby completely determines. It is, +however, only the statutory kind of guardianship which is destroyed by +a guardian's undergoing the least loss of status, for instance, by his +giving himself in adoption. Tutelage is in every case put an end to by +the pupil's suffering loss of status, even of the lowest order. + +5 Testamentary guardians appointed to serve until a certain time lay +down their office when that time arrives. + +6 Finally, persons cease to be guardians who are removed from their +office on suspicion, or who are enabled to lay down the burden of +the tutelage by a reasonable ground of excuse, according to the rules +presently stated. + + + + +TITLE XXIII. OF CURATORS + +Males, even after puberty, and females after reaching marriageable +years, receive curators until completing their twenty-fifth year, +because, though past the age fixed by law as the time of puberty, they +are not yet old enough to administer their own affairs. + +1 Curators are appointed by the same magistrates who appoint guardians. +They cannot legally be appointed by will, though such appointment, if +made, is usually confirmed by an order of the praetor or governor of the +province. + +2 A person who has reached the age of puberty cannot be compelled +to have a curator, except for the purpose of conducting a suit: for +curators, unlike guardians, can be appointed for a particular matter. + +3 Lunatics and prodigals, even though more than twentyfive years of age, +are by the statute of the Twelve Tables placed under their agnates as +curators; but now, as a rule, curators are appointed for them at Rome +by the prefect of the city or praetor, and in the provinces by the +governor, after inquiry into the case. + +4 Curators should also be given to persons of weak mind, to the deaf, +the dumb, and those suffering from chronic disease, because they are not +competent to manage their own affairs. + +5 Sometimes even pupils have curators, as, for instance, when a +statutory guardian is unfit for his office: for if a pupil already has +one guardian, he cannot have another given him. Again, if a testamentary +guardian, or one appointed by the praetor or governor, is not a good man +of business, though perfectly honest in his management of the pupil's +affairs, it is usual for a curator to be appointed to act with +him. Again, curators are usually appointed in the room of guardians +temporarily excused from the duties of their office. + +6 If a guardian is prevented from managing his pupil's affairs by +illhealth or other unavoidable cause, and the pupil is absent or an +infant, the praetor or governor of the province will, at the guardian's +risk, appoint by decree a person selected by the latter to act as agent +of the pupil. + + + + +TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS + +To prevent the property of pupils and of persons under curators from +being wasted or diminished by their curators or guardians the +praetor provides for security being given by the latter against +maladministration. This rule, however, is not without exceptions, for +testamentary guardians are not obliged to give security, the testator +having had full opportunities of personally testing their fidelity +and carefulness, and guardians and curators appointed upon inquiry are +similarly exempted, because they have been expressly chosen as the best +men for the place. + +1 If two or more are appointed by testament, or by a magistrate upon +inquiry, any one of them may offer security for indemnifying the pupil +or person to whom he is curator against loss, and be preferred to his +colleague, in order that he may either obtain the sole administration, +or else induce his colleague to offer larger security than himself, and +so become sole administrator by preference. Thus he cannot directly call +upon his colleague to give security; he ought to offer it himself, and +so give his colleague the option of receiving security on the one hand, +or of giving it on the other. If none of them offer security, and the +testator left directions as to which was to administer the property, +this person must undertake it: in default of this, the office is cast +by the praetor's edict on the person whom the majority of guardians or +curators shall choose. If they cannot agree, the praetor must interpose. +The same rule, authorizing a majority to elect one to administer the +property, is to be applied where several are appointed after inquiry by +a magistrate. + +2 It is to be noted that, besides the liability of guardians and +curators to their pupils, or the persons for whom they act, for the +management of their property, there is a subsidiary action against the +magistrate accepting the security, which may be resorted to where +all other remedies prove inadequate, and which lies against those +magistrates who have either altogether omitted to take security from +guardians or curators, or taken it to an insufficient amount. According +to the doctrines stated by the jurists, as well as by imperial +constitutions, this action may be brought against the magistrate's heirs +as well as against him personally; + +3 and these same constitutions ordain that guardians or curators who +make default in giving security may be compelled to do so by legal +distraint of their goods. + +4 This action, however, will not lie against the prefect of the city, +the praetor, or the governor of a province, or any other magistrate +authorized to appoint guardians, but only against those to whose usual +duties the taking of security belongs. + + + + +TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION + +There are various grounds on which persons are exempted from serving the +office of guardian or curator, of which the most common is their having +a certain number of children, whether in power or emancipated. If, that +is to say, a man has, in Rome, three children living, in Italy four, or +in the provinces five, he may claim exemption from these, as from other +public offices; for it is settled that the office of a guardian or +curator is a public one. Adopted children cannot be reckoned for this +purpose, though natural children given in adoption to others may: +similarly grandchildren by a son may be reckoned, so as to represent +their father, while those by a daughter may not. It is, however, only +living children who avail to excuse their fathers from serving as +guardian or curator; such as have died are of no account, though the +question has arisen whether this rule does not admit of an exception +where they have died in war; and it is agreed that this is so, but only +where they have fallen on the field of battle: for these, because they +have died for their country, are deemed to live eternally in fame. + +1 The Emperor Marcus, too, replied by rescript, as is recorded in his +Semestria, that employment in the service of the Treasury is a valid +excuse from serving as guardian or curator so long as that employment +lasts. + +2 Again, those are excused from these offices who are absent in the +service of the state; and a person already guardian or curator who has +to absent himself on public business is excused from acting in either of +these capacities during such absence, a curator being appointed to act +temporarily in his stead. On his return, he has to resume the burden +of tutelage, without being entitled to claim a year's exemption, as has +been settled since the opinion of Papinian was delivered in the fifth +book of his replies; for the year's exemption or vacation belongs only +to such as are called to a new tutelage. + +3 By a rescript of the Emperor Marcus persons holding any magistracy may +plead this as a ground of exemption, though it will not enable them to +resign an office of this kind already entered upon. + +4 No guardian or curator can excuse himself on the ground of an action +pending between himself and his ward, unless it relates to the latter's +whole estate or to an inheritance. + +5 Again, a man who is already guardian or curator to three persons +without having sought after the office is entitled to exemption from +further burdens of the kind so long as he is actually engaged with +these, provided that the joint guardianship of several pupils, or +administration of an undivided estate, as where the wards are brothers, +is reckoned as one only. + +6 If a man can prove that through poverty he is unequal to the burden of +the office, this, according to rescripts of the imperial brothers and of +the Emperor Marcus, is a valid ground of excuse. + +7 Illhealth again is a sufficient excuse if it be such as to prevent a +man from attending to even his own affairs: + +8 and the Emperor Pius decided by a rescript that persons unable to read +ought to be excused, though even these are not incapable of transacting +business. + +9 A man too is at once excused if he can show that a father has +appointed him testamentary guardian out of enmity, while conversely no +one can in any case claim exemption who promised the ward's father that +he would act as guardian to them: + +10 and it was settled by a rescript of M. Aurelius and L. Verus that the +allegation that one was unacquainted with the pupil's father cannot be +admitted as a ground of excuse. + +11 Enmity against the ward's father, if extremely bitter, and if there +was no reconciliation, is usually accepted as a reason for exemption +from the office of guardian; + +12 and similarly a person can claim to be excused whose status or civil +rights have been disputed by the father of the ward in an action. + +13 Again, a person over seventy years of age can claim to be excused +from acting as guardian or curator, and by the older law persons less +than twentyfive were similarly exempted. But our constitution, having +forbidden the latter to aspire to these functions, has made excuses +unnecessary. The effect of this enactment is that no pupil or +person under twentyfive years of age is to be called to a statutory +guardianship; for it was most incongruous to place persons under the +guardianship or administration of those who are known themselves to need +assistance in the management of their own affairs, and are themselves +governed by others. + +14 The same rule is to be observed with soldiers, who, even though they +desire it, may not be admitted to the office of guardian: + +15 and finally grammarians, rhetoricians, and physicians at Rome, and +those who follow these callings in their own country and are within the +number fixed by law, are exempted from being guardians or curators. + +16 If a person who has several grounds of excuse wishes to obtain +exemption, and some of them are not allowed, he is not prohibited from +alleging others, provided he does this within the time prescribed. Those +desirous of excusing themselves do not appeal, but ought to allege +their grounds of excuse within fifty days next after they hear of their +appointment, whatever the form of the latter, and whatever kind of +guardians they may be, if they are within a hundred miles of the place +where they were appointed: if they live at a distance of more than a +hundred miles, they are allowed a day for every twenty miles, and thirty +days in addition, but this time, as Scaevola has said, must never be so +reckoned as to amount to less than fifty days. + +17 A person appointed guardian is deemed to be appointed to the whole +patrimony; + +18 and after he has once acted as guardian he cannot be compelled +against his will to become the same person's curator--not even if the +father who appointed him testamentary guardian added in the will that +he made him curator, too, as soon as the ward reached fourteen years of +age--this having been decided by a rescript of the Emperors Severus and +Antoninus. + +19 Another rescript of the same emperors settled that a man is +entitled to be excused from becoming his own wife's curator, even after +intermeddling with her affairs. + +20 No man is discharged from the burden of guardianship who has procured +exemption by false allegations. + + + + +TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED + +The accusation of guardians or curators on suspicion originated in the +statute of the Twelve Tables; + +1 the removal of those who are accused on suspicion is part of the +jurisdiction, at Rome, of the praetor, and in the provinces of their +governors and of the proconsul's legate. + +2 Having shown what magistrates can take cognizance of this subject, let +us see what persons are liable to be accused on suspicion. All guardians +are liable, whether appointed by testament or otherwise; consequently +even a statutory guardian may be made the object of such an accusation. +But what is to be said of a patron guardian? Even here we must reply +that he too is liable; though we must remember that his reputation must +be spared in the event of his removal on suspicion. + +3 The next point is to see what persons may bring this accusation; and +it is to be observed that the action partakes of a public character, +that is to say, is open to all. Indeed, by a rescript of Severus and +Antoninus even women are made competent to bring it, but only those who +can allege a close tie of affection as their motive; for instance, a +mother, nurse, grandmother, or sister. And the praetor will allow any +woman to prefer the accusation in whom he finds an affection real enough +to induce her to save a pupil from suffering harm, without seeming to be +more forward than becomes her sex. + +4 Persons below the age of puberty cannot accuse their guardians on +suspicion; but by a rescript of Severus and Antoninus it has been +permitted to those who have reached that age to deal thus with their +curators, after taking the advice of their nearest relations. + +5 A guardian is 'suspected' who does not faithfully discharge his +tutorial functions, though he may be perfectly solvent, as was the +opinion also of Julian. Indeed, Julian writes that a guardian may be +removed on suspicion before he commences his administration, and a +constitution has been issued in accordance with this view. + +6 A person removed from office on suspicion incurs infamy if his offence +was fraud, but not if it was merely negligence. + +7 As Papinian held, on a person being accused on suspicion he is +suspended from the administration until the action is decided. + +8 If a guardian or curator who is accused on suspicion dies after the +commencement of the action, but before it has been decided, the action +is thereby extinguished; + +9 and if a guardian fails to appear to a summons of which the object is +to fix by judicial order a certain rate of maintenance for the pupil, +the rescript of the Emperors Severus and Antoninus provides that the +pupil may be put in possession of the guardian's property, and orders +the sale of the perishable portions thereof after appointment of a +curator. Consequently, a guardian may be removed as suspected who does +not provide his pupil with sufficient maintenance. + +10 If, on the other hand, the guardian appears, and alleges that the +pupil's property is too inconsiderable to admit of maintenance being +decreed, and it is shown that the allegation is false, the proper course +is for him to be sent for punishment to the prefect of the city, like +those who purchase a guardianship with bribery. + +11 So too a freedman, convicted of having acted fraudulently as guardian +of the sons or grandsons of his patron, should be sent to the prefect of +the city for punishment. + +12 Finally, it is to be noted, that guardians or curators who are guilty +of fraud in their administration must be removed from their office even +though they offer to give security, for giving security does not change +the evil intent of the guardian, but only gives him a larger space of +time wherein he may injure the pupil's property: 13 for a man's mere +character or conduct may be such as to justify one's deeming him +'suspected.' No guardian or curator, however, may be removed on +suspicion merely because he is poor, provided he is also faithful and +diligent. + + + + +BOOK II. + + + + + TITLES + I. Of the different kinds of Things + II. Of incorporeal Things + III. Of servitudes + IV. Of usufruct + V. Of use and habitation + VI. Of usucapion and long possession + VII. Of gifts + VIII. Of persons who may, and who may + not alienate + IX. Of persons through whom we acquire + X. Of the execution of wills + XI. Of soldiers' wills + XII. Of persons incapable of making wills + XIII. Of the disinherison of children + XIV. Of the institution of the heir + XV. Of ordinary substitution + XVI. Of pupillary substitution + XVII. Of the modes in which wills become + void + XVIII. Of an unduteous will + XIX. Of the kinds of and differences + between heirs + XX. Of legacies + XXI. Of the ademption and transference + of legacies + XXII. Of the lex Falcidia + XXIII. Of trust inheritances + XXIV. Of trust bequests of single things + XXV. Of codicils + + + + +TITLE I. OF THE DIFFERENT KINDS OF THINGS + +In the preceding book we have expounded the law of Persons: now let us +proceed to the law of Things. Of these, some admit of private ownership, +while others, it is held, cannot belong to individuals: for some things +are by natural law common to all, some are public, some belong to a +society or corporation, and some belong to no one. But most things +belong to individuals, being acquired by various titles, as will appear +from what follows. + +1 Thus, the following things are by natural law common to all--the air, +running water, the sea, and consequently the seashore. No one therefore +is forbidden access to the seashore, provided he abstains from injury to +houses, monuments, and buildings generally; for these are not, like the +sea itself, subject to the law of nations. + +2 On the other hand, all rivers and harbours are public, so that all +persons have a right to fish therein. + +3 The seashore extends to the limit of the highest tide in time of storm +or winter. + +4 Again, the public use of the banks of a river, as of the river itself, +is part of the law of nations; consequently every one is entitled to +bring his vessel to the bank, and fasten cables to the trees growing +there, and use it as a resting-place for the cargo, as freely as he may +navigate the river itself. But the ownership of the bank is in the owner +of the adjoining land, and consequently so too is the ownership of the +trees which grow upon it. + +5 Again, the public use of the seashore, as of the sea itself, is part +of the law of nations; consequently every one is free to build a cottage +upon it for purposes of retreat, as well as to dry his nets and haul +them up from the sea. But they cannot be said to belong to any one as +private property, but rather are subject to the same law as the sea +itself, with the soil or sand which lies beneath it. + +6 As examples of things belonging to a society or corporation, and not +to individuals, may be cited buildings in cities--theatres, racecourses, +and such other similar things as belong to cities in their corporate +capacity. + +7 Things which are sacred, devoted to superstitious uses, or sanctioned, +belong to no one, for what is subject to divine law is no one's +property. + +8 Those things are sacred which have been duly consecrated to God by +His ministers, such as churches and votive offerings which have been +properly dedicated to His service; and these we have by our constitution +forbidden to be alienated or pledged, except to redeem captives from +bondage. If any one attempts to consecrate a thing for himself and by +his own authority, its character is unaltered, and it does not become +sacred. The ground on which a sacred building is erected remains sacred +even after the destruction of the building, as was declared also by +Papinian. + +9 Any one can devote a place to superstitious uses of his own free +will, that is to say, by burying a dead body in his own land. It is not +lawful, however, to bury in land which one owns jointly with some one +else, and which has not hitherto been used for this purpose, without the +other's consent, though one may lawfully bury in a common sepulchre +even without such consent. Again, the owner may not devote a place to +superstitious uses in which another has a usufruct, without the consent +of the latter. It is lawful to bury in another man's ground, if he gives +permission, and the ground thereby becomes religious even though he +should not give his consent to the interment till after it has taken +place. + +10 Sanctioned things, too, such as city walls and gates, are, in +a sense, subject to divine law, and therefore are not owned by any +individual. Such walls are said to be 'sanctioned,' because any offence +against them is visited with capital punishment; for which reason +those parts of the laws in which we establish a penalty for their +transgressors are called sanctions. + +11 Things become the private property of individuals in many ways; for +the titles by which we acquire ownership in them are some of them titles +of natural law, which, as we said, is called the law of nations, while +some of them are titles of civil law. It will thus be most convenient to +take the older law first: and natural law is clearly the older, having +been instituted by nature at the first origin of mankind, whereas +civil laws first came into existence when states began to be founded, +magistrates to be created, and laws to be written. + +12 Wild animals, birds, and fish, that is to say all the creatures which +the land, the sea, and the sky produce, as soon as they are caught +by any one become at once the property of their captor by the law of +nations; for natural reason admits the title of the first occupant to +that which previously had no owner. So far as the occupant's title is +concerned, it is immaterial whether it is on his own land or on that of +another that he catches wild animals or birds, though it is clear that +if he goes on another man's land for the sake of hunting or fowling, +the latter may forbid him entry if aware of his purpose. An animal thus +caught by you is deemed your property so long as it is completely under +your control; but so soon as it has escaped from your control, and +recovered its natural liberty, it ceases to be yours, and belongs to the +first person who subsequently catches it. It is deemed to have recovered +its natural liberty when you have lost sight of it, or when, though it +is still in your sight, it would be difficult to pursue it. + +13 It has been doubted whether a wild animal becomes your property +immediately you have wounded it so severely as to be able to catch it. +Some have thought that it becomes yours at once, and remains so as +long as you pursue it, though it ceases to be yours when you cease +the pursuit, and becomes again the property of any one who catches it: +others have been of opinion that it does not belong to you till you have +actually caught it. And we confirm this latter view, for it may happen +in many ways that you will not capture it. + +14 Bees again are naturally wild; hence if a swarm settles on your tree, +it is no more considered yours, until you have hived it, than the birds +which build their nests there, and consequently if it is hived by +some one else, it becomes his property. So too any one may take the +honeycombs which bees may chance to have made, though, of course, if you +see some one coming on your land for this purpose, you have a right, +to forbid him entry before that purpose is effected. A swarm which has +flown from your hive is considered to remain yours so long as it is in +your sight and easy of pursuit: otherwise it belongs to the first person +who catches it. + +15 Peafowl too and pigeons are naturally wild, and it is no valid +objection that they are used to return to the same spots from which they +fly away, for bees do this, and it is admitted that bees are wild by +nature; and some people have deer so tame that they will go into the +woods and yet habitually come back again, and still no one denies that +they are naturally wild. With regard, however, to animals which have +this habit of going away and coming back again, the rule has been +established that they are deemed yours so long as they have the intent +to return: for if they cease to have this intention they cease to be +yours, and belong to the first person who takes them; and when they lose +the habit they seem also to have lost the intention of returning. + +16 Fowls and geese are not naturally wild, as is shown by the fact that +there are some kinds of fowls and geese which we call wild kinds. Hence +if your geese or fowls are frightened and fly away, they are considered +to continue yours wherever they may be, even though you have lost sight +of them; and any one who keeps them intending thereby to make a profit +is held guilty of theft. + +17 Things again which we capture from the enemy at once become ours +by the law of nations, so that by this rule even free men become our +slaves, though, if they escape from our power and return to their own +people, they recover their previous condition. + +18 Precious stones too, and gems, and all other things found on the +seashore, become immediately by natural law the property of the finder: + +19 and by the same law the young of animals of which you are the owner +become your property also. + +20 Moreover, soil which a river has added to your land by alluvion +becomes yours by the law of nations. Alluvion is an imperceptible +addition; and that which is added so gradually that you cannot perceive +the exact increase from one moment of time to another is added by +alluvion. + +21 If, however, the violence of the stream sweeps away a parcel of +your land and carries it down to the land of your neighbour it clearly +remains yours; though of course if in the process of time it becomes +firmly attached to your neighbour's land, they are deemed from that time +to have become part and parcel thereof. + +22 When an island rises in the sea, though this rarely happens, it +belongs to the first occupant; for, until occupied, it is held to belong +to no one. If, however (as often occurs), an island rises in a river, +and it lies in the middle of the stream, it belongs in common to the +landowners on either bank, in proportion to the extent of their riparian +interest; but if it lies nearer to one bank than to the other, it +belongs to the landowners on that bank only. If a river divides into +two channels, and by uniting again these channels transform a man's land +into an island, the ownership of that land is in no way altered: + +23 but if a river entirely leaves its old channel, and begins to run in +a new one, the old channel belongs to the landowners on either side of +it in proportion to the extent of their riparian interest, while the new +one acquires the same legal character as the river itself, and becomes +public. But if after a while the river returns to its old channel, the +new channel again becomes the property of those who possess the land +along its banks. + +24 It is otherwise if one's land is wholly flooded, for a flood does not +permanently alter the nature of the land, and consequently if the water +goes back the soil clearly belongs to its previous owner. + +25 When a man makes a new object out of materials belonging to another, +the question usually arises, to which of them, by natural reason, does +this new object belong--to the man who made it, or to the owner of the +materials? For instance, one man may make wine, or oil, or corn, out of +another man's grapes, olives, or sheaves; or a vessel out of his gold, +silver, or bronze; or mead of his wine and honey; or a plaster or +eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest, +or a chair out of his timber. After many controversies between the +Sabinians and Proculians, the law has now been settled as follows, in +accordance with the view of those who followed a middle course between +the opinions of the two schools. If the new object can be reduced to +the materials out of which it was made, it belongs to the owner of the +materials; if not, it belongs to the person who made it. For instance, a +vessel can be melted down, and so reduced to the rude material--bronze, +silver, or gold--of which it is made: but it is impossible to reconvert +wine into grapes, oil into olives, or corn into sheaves, or even mead +into the wine and honey out of which it was compounded. But if a man +makes a new object out of materials which belong partly to him and +partly to another--for instance, mead of his own wine and another's +honey, or a plaster or eyesalve of drugs which are not all his own, or +cloth of wool which belongs only in part to him--in this case there +can be no doubt that the new object belongs to its creator, for he has +contributed not only part of the material, but the labour by which it +was made. + +26 If, however, a man weaves into his own cloth another man's purple, +the latter, though the more valuable, becomes part of the cloth by +accession; but its former owner can maintain an action of theft against +the purloiner, and also a condiction, or action for reparative damages, +whether it was he who made the cloth, or some one else; for although the +destruction of property is a bar to a real action for its recovery, +it is no bar to a condiction against the thief and certain other +possessors. + +27 If materials belonging to two persons are mixed by consent--for +instance, if they mix their wines, or melt together their gold or their +silver--the result of the mixture belongs to them in common. And the law +is the same if the materials are of different kinds, and their mixture +consequently results in a new object, as where mead is made by mixing +wine and honey, or electrum by mixing gold and silver; for even here it +is not doubted that the new object belongs in common to the owners of +the materials. And if it is by accident, and not by the intention of the +owners, that materials have become mixed, the law is the same, whether +they were of the same or of different kinds. + +28 But if the corn of Titius has become mixed with yours, and this by +mutual consent, the whole will belong to you in common, because the +separate bodies or grains, which before belonged to one or the other +of you in severalty, have by consent on both sides been made your joint +property. If, however, the mixture was accidental, or if Titius mixed +the two parcels of corn without your consent, they do not belong to +you in common, because the separate grains remain distinct, and their +substance is unaltered; and in such cases the corn no more becomes +common property than does a flock formed by the accidental mixture of +Titius's sheep with yours. But if either of you keeps the whole of the +mixed corn, the other can bring a real action for the recovery of such +part of it as belongs to him, it being part of the province of the judge +to determine the quality of the wheat which belonged to each. + +29 If a man builds upon his own ground with another's materials, the +building is deemed to be his property, for buildings become a part +of the ground on which they stand. And yet he who was owner of the +materials does not cease to own them, but he cannot bring a real action +for their recovery, or sue for their production, by reason of a clause +in the Twelve Tables providing that no one shall be compelled to take +out of his house materials (tignum), even though they belong to another, +which have once been built into it, but that double their value may +be recovered by the action called 'de tigno iniuncto.' The term tignum +includes every kind of material employed in building, and the object +of this provision is to avoid the necessity of having buildings pulled +down; but if through some cause or other they should be destroyed, the +owner of the materials, unless he has already sued for double value, may +bring a real action for recovery, or a personal action for production. + +30 On the other hand, if one man builds a house on another's land with +his own materials, the house belongs to the owner of the land. In this +case, however, the right of the previous owner in the materials is +extinguished, because he is deemed to have voluntarily parted with them, +though only, of course, if he was aware that the land on which he was +building belonged to another man. Consequently, though the house should +be destroyed, he cannot claim the materials by real action. Of course, +if the builder of the house has possession of the land, and the owner of +the latter claims the house by real action, but refuses to pay for the +materials and the workmen's wages, he can be defeated by the plea of +fraud, provided the builder's possession is in good faith: for if he +knew that the land belonged to some one else it may be urged against him +that he was to blame for rashly building on land owned to his knowledge +by another man. + +31 If Titius plants another man's shrub in land belonging to himself, +the shrub will become his; and, conversely, if he plants his own shrub +in the land of Maevius, it will belong to Maevius. In neither case, +however, will the ownership be transferred until the shrub has taken +root: for, until it has done this, it continues to belong to the +original owner. So strict indeed is the rule that the ownership of +the shrub is transferred from the moment it has taken root, that if a +neighbour's tree grows so close to the land of Titius that the soil of +the latter presses round it, whereby it drives its roots entirely into +the same, we say the tree becomes the property of Titius, on the ground +that it would be unreasonable to allow the owner of a tree to be a +different person from the owner of the land in which it is rooted. +Consequently, if a tree which grows on the boundaries of two estates +drives its roots even partially into the neighbour's soil, it becomes +the common property of the two landowners. + +32 On the same principle corn is reckoned to become a part of the soil +in which it is sown. But exactly as (according to what we said) a man +who builds on another's land can defend himself by the plea of fraud +when sued for the building by the owner of the land, so here too one who +has in good faith and at his own expense put crops into another man's +soil can shelter himself behind the same plea, if refused compensation +for labour and outlay. + +33 Writing again, even though it be in letters of gold, becomes a part +of the paper or parchment, exactly as buildings and sown crops become +part of the soil, and consequently if Titius writes a poem, or a +history, or a speech on your paper and parchment, the whole will be held +to belong to you, and not to Titius. But if you sue Titius to recover +your books or parchments, and refuse to pay the value of the writing, +he will be able to defend himself by the plea of fraud, provided that he +obtained possession of the paper or parchment in good faith. + +34 Where, on the other hand, one man paints a picture on another's +board, some think that the board belongs, by accession, to the painter, +others, that the painting, however great its excellence, becomes part of +the board. The former appears to us the better opinion, for it is absurd +that a painting by Apelles or Parrhasius should be an accessory of a +board which, in itself, is thoroughly worthless. Hence, if the owner +of the board has possession of the picture, and is sued for it by the +painter, who nevertheless refuses to pay the cost of the board, he will +be able to repel him by the plea of fraud. If, on the other hand, the +painter has possession, it follows from what has been said that the +former owner of the board, [if he is to be able to sue at all], must +claim it by a modified and not by a direct action; and in this case, +if he refuses to pay the cost of the picture, he can be repelled by the +plea of fraud, provided that the possession of the painter be in good +faith; for it is clear, that if the board was stolen by the painter, or +some one else, from its former owner, the latter can bring the action of +theft. + +35 If a man in good faith buys land from another who is not its owner, +though he believed he was, or acquires it in good faith by gift or some +other lawful title, natural reason directs that the fruits which he has +gathered shall be his, in consideration of his care and cultivation: +consequently if the owner subsequently appears and claims the land by +real action, he cannot sue for fruits which the possessor has consumed. +This, however, is not allowed to one who takes possession of land which +to his knowledge belongs to another person, and therefore he is obliged +not only to restore the land, but to make compensation for fruits even +though they have been consumed. + +36 A person who has a usufruct in land does not become owner of +the fruits which grow thereon until he has himself gathered them; +consequently fruits which, at the moment of his decease, though ripe, +are yet ungathered, do not belong to his heir, but to the owner of the +land. What has been said applies also in the main to the lessee of land. + +37 The term 'fruits,' when used of animals, comprises their young, +as well as milk, hair, and wool; thus lambs, kids, calves, and foals, +belong at once, by the natural law of ownership, to the fructuary. +But the term does not include the offspring of a female slave, which +consequently belongs to her master; for it seemed absurd to reckon human +beings as fruits, when it is for their sake that all other fruits have +been provided by nature. + +38 The usufructuary of a flock, as Julian held, ought to replace any of +the animals which die from the young of the rest, and, if his usufruct +be of land, to replace dead vines or trees; for it is his duty to +cultivate according to law and use them like a careful head of a family. + +39 If a man found treasure in his own land, the Emperor Hadrian, +following natural equity, adjudged to him the ownership of it, as he +also did to a man who found one by accident in soil which was sacred or +religious. If he found it in another man's land by accident, and without +specially searching for it, he gave half to the finder, half to the +owner of the soil; and upon this principle, if a treasure were found in +land belonging to the Emperor, he decided that half should belong to +the latter, and half to the finder; and consistently with this, if a man +finds one in land which belongs to the imperial treasury or the people, +half belongs to him, and half to the treasury or the State. + +40 Delivery again is a mode in which we acquire things by natural law; +for it is most agreeable to natural equity that where a man wishes to +transfer his property to another person his wish should be confirmed. +Consequently corporeal things, whatever be their nature, admit of +delivery, and delivery by their owner makes them the property of the +alienee; this, for instance, is the mode of alienating stipendiary and +tributary estates, that is to say, estates lying in provincial soil; +between which, however, and estates in Italy there now exists, according +to our constitution, no difference. + +41 And ownership is transferred whether the motive of the delivery +be the desire to make a gift, to confer a dowry, or any other motive +whatsoever. When, however, a thing is sold and delivered, it does not +become the purchaser's property until he has paid the price to the +vendor, or satisfied him in some other way, as by getting some one else +to accept liability for him, or by pledge. And this rule, though laid +down also in the statute of the Twelve Tables, is rightly said to be a +dictate of the law of all nations, that is, of natural law. But if the +vendor gives the purchaser credit, the goods sold belong to the latter +at once. + +42 It is immaterial whether the person who makes delivery is the owner +himself, or some one else acting with his consent. + +43 Consequently, if any one is entrusted by an owner with the management +of his business at his own free discretion, and in the execution of his +commission sells and delivers any article, he makes the receiver its +owner. + +44 In some cases even the owner's bare will is sufficient, without +delivery, to transfer ownership. For instance, if a man sells or makes +you a present of a thing which he has previously lent or let to you or +placed in your custody, though it was not from that motive he originally +delivered it to you, yet by the very fact that he suffers it to be +yours you at once become its owner as fully as if it had been originally +delivered for the purpose of passing the property. + +45 So too if a man sells goods lying in a warehouse, he transfers the +ownership of them to the purchaser immediately he has delivered to the +latter the keys of the warehouse. + +46 Nay, in some cases the will of the owner, though directly only +towards an uncertain person, transfers the ownership of the thing, as +for instance when praetors and consuls throw money to a crowd: here they +know not which specific coin each person will get, yet they make the +unknown recipient immediately owner, because it is their will that each +shall have what he gets. + +47 Accordingly, it is true that if a man takes possession of property +abandoned by its previous owner, he at once becomes its owner himself: +and a thing is said to be abandoned which its owner throws away with the +deliberate intention that it shall no longer be part of his property, +and of which, consequently, he immediately ceases to be the owner. + +48 It is otherwise with things which are thrown overboard during a +storm, in order to lighten the ship; in the ownership of these things +there is no change, because the reason for which they are thrown +overboard is obviously not that the owner does not care to own them any +longer, but that he and the ship besides may be more likely to escape +the perils of the sea. Consequently any one who carries them off after +they are washed on shore, or who picks them up at sea and keeps them, +intending to make a profit thereby, commits a theft; for such things +seem to be in much the same position as those which fall out of a +carriage in motion unknown to their owners. + + + + +TITLE II. OF INCORPOREAL THINGS + +Some things again are corporeal, and others incorporeal. + +1 Those are corporeal which in their own nature are tangible, such as +land, slaves, clothing, gold, silver, and others innumerable. + +2 Things incorporeal are such as are intangible: rights, for instance, +such as inheritance, usufruct, and obligations, however acquired. And it +is no objection to this definition that an inheritance comprises things +which are corporeal; for the fruits of land enjoyed by a usufructuary +are corporeal too, and obligations generally relate to the conveyance of +something corporeal, such as land, slaves, or money, and yet the right +of succession, the right of usufruct, and the right existing in every +obligation, are incorporeal. + +3 So too the rights appurtenant to land, whether in town or country, +which are usually called servitudes, are incorporeal things. + + + + +TITLE III. OF SERVITUDES + +The following are rights appurtenant to country estates: 'iter,' +the right of passage at will for a man only, not of driving beast or +vehicles; 'actus,' the right of driving beasts or vehicles (of which two +the latter contains the former, though the former does not contain the +latter, so that a man who has iter has not necessarily actus, while if +he has actus he has also iter, and consequently can pass himself even +though unaccompanied by cattle); 'via,' which is the right of going, of +driving any thing whatsoever, and of walking, and which thus contains +both iter and actus; and fourthly, 'aquaeductus,' the right of +conducting water over another man's land. + +1 Servitudes appurtenant to town estates are rights which are attached +to buildings; and they are said to appertain to town estates because all +buildings are called 'town estates,' even though they are actually in +the country. The following are servitudes of this kind--the obligation +of a man to support the weight of his neighbour's house, to allow a beam +to be let into his wall, or to receive the rain from his neighbour's +roof on to his own either in drops or from a shoot, or from a gutter +into his yard; the converse right of exemption from any of these +obligations; and the right of preventing a neighbour from raising his +buildings, lest thereby one's ancient lights be obstructed. + +2 Some think that among servitudes appurtenant to country estates ought +properly to be reckoned the rights of drawing water, of watering cattle, +of pasture, of burning lime, and of digging sand. + +3 These servitudes are called rights attached to estates, because +without estates they cannot come into existence; for no one can acquire +or own a servitude attached to a town or country estate unless he has an +estate for it to be attached to. + +4 When a landowner wishes to create any of these rights in favour of +his neighbour, the proper mode of creation is agreement followed by +stipulation. By testament too one can impose on one's heir an obligation +not to raise the height of his house so as to obstruct his neighbour's +ancient lights, or bind him to allow a neighbour to let a beam into +his wall, to receive the rain water from a neighbour's pipe, or allow a +neighbour a right of way, of driving cattle or vehicles over his land, +or conducting water over it. + + + + +TITLE IV. OF USUFRUCT + +Usufruct is the right of using and taking the fruits of property not +one's own, without impairing the substance of that property; for being +a right over a corporeal thing, it is necessarily extinguished itself +along with the extinction of the latter. + +1 Usufruct is thus a right detached from the aggregate of rights +involved in ownership, and this separation can be effected in very many +ways: for instance, if one man gives another a usufruct by legacy, the +legatee has the usufruct, while the heir has merely the bare ownership; +and, conversely, if a man gives a legacy of an estate, reserving +the usufruct, the usufruct belongs to the heir, while only the bare +ownership is vested in the legatee. Similarly, he can give to one man +a legacy of the usufruct, to another one of the estate, subject to the +other's usufruct. If it is wished to create a usufruct in favour of +another person otherwise than by testament, the proper mode is agreement +followed by stipulation. However, lest ownership should be entirely +valueless through the permanent separation from it of the usufruct, +certain modes have been approved in which usufruct may be extinguished, +and thereby revert to the owner. + +2 A usufruct may be created not only in land or buildings, but also in +slaves, cattle, and other objects generally, except such as are actually +consumed by being used, of which a genuine usufruct is impossible by +both natural and civil law. Among them are wine, oil, grain, clothing, +and perhaps we may also say coined money; for a sum of money is in a +sense extinguished by changing hands, as it constantly does in simply +being used. For convenience sake, however, the senate enacted that a +usufruct could be created in such things, provided that due security be +given to the heir. Thus if a usufruct of money be given by legacy, that +money, on being delivered to the legatee, becomes his property, though +he has to give security to the heir that he will repay an equivalent +sum on his dying or undergoing a loss of status. And all things of this +class, when delivered to the legatee, become his property, though they +are first appraised, and the legatee then gives security that if he dies +or undergoes a loss of status he will ay the value which was put upon +them. Thus in point of fact the senate did not introduce a usufruct +of such things, for that was beyond its power, but established a right +analogous to usufruct by requiring security. + +3 Usufruct determines by the death of the usufructuary, by his +undergoing either of the greater kinds of loss of status, by its +improper exercise, and by its nonexercise during the time fixed by +law; all of which points are settled by our constitution. It is also +extinguished when surrendered to the owner by the usufructuary (though +transfer to a third person is inoperative); and again, conversely, +by the fructuary becoming owner of the thing, this being called +consolidation. Obviously, a usufruct of a house is extinguished by +the house being burnt down, or falling through an earthquake or faulty +construction; and in such case a usufruct of the site cannot be claimed. + +4 When a usufruct determines, it reverts to and is reunited with the +ownership; and from that moment he who before was but bare owner of the +thing begins to have full power over it. + + + + +TITLE V. OF USE AND HABITATION + +A bare use, or right of using a thing, is created in the same mode as a +usufruct, and the modes in which it may determine are the same as those +just described. + +1 A use is a less right than a usufruct; for if a man has a bare use of +an estate, he is deemed entitled to use the vegetables, fruit, flowers, +hay, straw, and wood upon it only so far as his daily needs require: +he may remain on the land only so long as he does not inconvenience its +owner, or impede those who are engaged in its cultivation; but he +cannot let or sell or give away his right to a third person, whereas a +usufructuary may. + +2 Again, a man who has the use of a house is deemed entitled only to +live in it himself; he cannot transfer his right to a third person, and +it scarcely seems to be agreed that he may take in a guest; but besides +himself he may lodge there his wife, children, and freedmen, and other +free persons who form as regular a part of his establishment as his +slaves. Similarly, if a woman has the use of a house, her husband may +dwell there with her. + +3 When a man has the use of a slave, he has only the right of personally +using his labour and services; in no way is he allowed to transfer his +right to a third person, and the same applies to the use of beasts of +burden. + +4 If a legacy be given of the use of a herd or of a flock of sheep, the +usuary may not use the milk, lambs, or wool, for these are fruits; but +of course he may use the animals for the purpose of manuring his land. + +5 If a right of habitation be given to a man by legacy or in some other +mode, this seems to be neither a use nor a usufruct, but a distinct +and as it were independent right; and by a constitution which we have +published in accordance with the opinion of Marcellus, and in the +interests of utility, we have permitted persons possessed of this right +not only to live in the building themselves, but also to let it out to +others. + +6 What we have here said concerning servitudes, and the rights of +usufruct, use, and habitation, will be sufficient; of inheritance and +obligations we will treat in their proper places respectively. And +having now briefly expounded the modes in which we acquire things by the +law of nations, let us turn and see in what modes they are acquired by +statute or by civil law. + + + + +TITLE VI. OF USUCAPION AND LONG POSSESSION + +It was a rule of the civil law that if a man in good faith bought a +thing, or received it by way of gift, or on any other lawful ground, +from a person who was not its owner, but whom he believed to be such, he +should acquire it by usucapion--if a movable, by one year's possession, +and by two years' possession if an immovable, though in this case +only if it were in Italian soil;--the reason of the rule being the +inexpediency of allowing ownership to be long unascertained. The +ancients thus considered that the periods mentioned were sufficient to +enable owners to look after their property; but we have arrived at a +better opinion, in order to save people from being overquickly defrauded +of their own, and to prevent the benefit of this institution from being +confined to only a certain part of the empire. We have consequently +published a constitution on the subject, enacting that the period of +usucapion for movables shall be three years, and that ownership of +immovables shall be acquired by long possession--possession, that is to +say, for ten years, if both parties dwell in the same province, and for +twenty years if in different provinces; and things may in these modes +be acquired in full ownership, provided the possession commences on a +lawful ground, not only in Italy but in every land subject to our sway. + +1 Some things, however, not withstanding the good faith of the +possessor, and the duration of his possession, cannot be acquired by +usucapion; as is the case, for instance, if one possesses a free man, a +thing sacred or religious, or a runaway slave. + +2 Things again of which the owner lost possession by theft, or +possession of which was gained by violence, cannot be acquired by +usucapion, even by a person who has possessed them in good faith for the +specified period: for stolen things are declared incapable of usucapion +by the statute of the Twelve Tables and by the lex Atinia, and things +taken with violence by the lex Iulia et Plautia. + +3 The statement that things stolen or violently possessed cannot, by +statute, be acquired by usucapion, means, not that the thief or violent +dispossessor is incapable of usucapion--for these are barred by another +reason, namely the fact that their possession is not in good faith; but +that even a person who has purchased the thing from them in good faith, +or received it on some other lawful ground, is incapable of acquiring by +usucapion. Consequently, in things movable even a person who possesses +in good faith can seldom acquire ownership by usucapion, for he who +sells, or on some other ground delivers possession of a thing belonging +to another, commits a theft. + +4 However, this admits of exception; for if an heir, who believes a +thing lent or let to, or deposited with, the person whom he succeeds, +to be a portion of the inheritance, sells or gives it by way of dowry to +another who receives it in good faith, there is no doubt that the latter +can acquire the ownership of it by usucapion; for the thing is here not +tainted with the flaw attaching to stolen property, because an heir does +not commit a theft who in good faith conveys a thing away believing it +to be his own. + +5 Again, the usufructuary of a female slave, who believes her offspring +to be his property, and sells or gives it away, does not commit a theft: +for theft implies unlawful intention. + +6 There are also other ways in which one man can transfer to another +property which is not his own, without committing a theft, and thereby +enable the receiver to acquire by usucapion. + +7 Usucapion of property classed among things immovable is an easier +matter; for it may easily happen that a man may, without violence, +obtain possession of land which, owing to the absence or negligence of +its owner, or to his having died and left no successor, is presently +possessed by no one. Now this man himself does not possess in good +faith, because he knows the land on which he has seized is not his own: +but if he delivers it to another who receives it in good faith, the +latter can acquire it by long possession, because it has neither +been stolen nor violently possessed; for the idea held by some of the +ancients, that a piece of land or a place can be stolen, has now been +exploded, and imperial constitutions have been enacted in the interests +of persons possessing immovables, to the effect that no one ought to +be deprived of a thing of which he has had long and unquestioned +possession. + +8 Sometimes indeed even things which have been stolen or violently +possessed can be acquired by usucapion, as for instance after they have +again come under the power of their real owner: for by this they are +relieved from the taint which had attached to them, and so become +capable of usucapion. + +9 Things belonging to our treasury cannot be acquired by usucapion. But +there is on record an opinion of Papinian, supported by the rescripts of +the Emperors Pius, Severus, and Antoninus, that if, before the property +of a deceased person who has left no heir is reported to the exchequer, +some one has bought or received some part thereof, he can acquire it by +usucapion. + +10 Finally, it is to be observed that things are incapable of being +acquired through usucapion by a purchaser in good faith, or by one who +possesses on some other lawful ground, unless they are free from all +flaws which vitiate the usucapion. + +11 If there be a mistake as to the ground on which possession is +acquired, and which it is wrongly supposed will support usucapion, +usucapion cannot take place. Thus a man's possession may be founded on +a supposed sale or gift, whereas in point of fact there has been no sale +or gift at all. + +12 Long possession which has begun to run in favour of a deceased person +continues to run on in favour of his heir or praetorian successor, even +though he knows that the land belongs to another person. But if the +deceased's possession had not a lawful inception, it is not available +to the heir or praetorian successor, although ignorant of this. Our +constitution has enacted that in usucapion too a similar rule shall +be observed, and that the benefit of the possession shall continue in +favour of the successor. + +13 The Emperors Severus and Antoninus have decided by a rescript that a +purchaser too may reckon as his own the time during which his vendor has +possessed the thing. + +14 Finally, it is provided by an edict of the Emperor Marcus that after +an interval of five years a purchaser from the treasury of property +belonging to a third person may repel the owner, if sued by him, by +an exception. But a constitution issued by Zeno of sacred memory has +protected persons who acquire things from the treasury by purchase, +gift, or other title, affording them complete security from the moment +of transfer, and guaranteeing their success in any action relating +thereto, whether they be plaintiffs or defendants; while it allows those +who claim any action in respect of such property as owners or pledges +to sue the imperial treasury at any time within four years from the +transaction. A divine constitution which we ourselves have lately issued +has extended the operation of Zeno's enactment, respecting conveyances +by the treasury, to persons who have acquired anything from our palace +or that of the Empress. + + + + +TITLE VII. OF GIFTS + +Another mode in which property is acquired is gift. Gifts are of two +kinds; those made in contemplation of death, and those not so made. + +1 Gifts of the first kind are those made in view of approaching death, +the intention of the giver being that in the event of his decease the +thing given should belong to the donee, but that if he should survive or +should desire to revoke the gift, or if the donee should die first, the +thing should be restored to him. These gifts in contemplation of death +now stand on exactly the same footing as legacies; for as in some +respects they were more like ordinary gifts, in others more like +legacies, the jurists doubted under which of these two classes +they should be placed, some being for gift, others for legacy: and +consequently we have enacted by constitution that in nearly every +respect they shall be treated like legacies, and shall be governed by +the rules laid down respecting them in our constitution. In a word, a +gift in contemplation of death is where the donor would rather have the +thing himself than that the donee should have it, and that the latter +should rather have it than his own heir. An illustration may be found in +Homer, where Telemachus makes a gift to Piraeus. + +2 Gifts which are made without contemplation of death, which we call +gifts between the living, are of another kind, and have nothing in +common with legacies. If the transaction be complete, they cannot be +revoked at pleasure; and it is complete when the donor has manifested +his intention, whether in writing or not. Our constitution has settled +that such a manifestation of intention binds the donor to deliver, +exactly as in the case of sale; so that even before delivery gifts +are completely effectual, and the donor is under a legal obligation to +deliver the object. Enactments of earlier emperors required that +such gifts, if in excess of two hundred solidi, should be officially +registered; but our constitution has raised this maximum to five hundred +solidi, and dispensed with the necessity of registering gifts of this +or of a less amount; indeed it has even specified some gifts which are +completely valid, and require no registration, irrespective of their +amount. We have devised many other regulations in order to facilitate +and secure gifts, all of which may be gathered from the constitutions +which we have issued on this topic. It is to be observed, however, +that even where gifts have been completely executed we have by our +constitution under certain circumstances enabled donors to revoke them, +but only on proof of ingratitude on the part of the recipient of the +bounty; the aim of this reservation being to protect persons, who have +given their property to others, from suffering at the hands of the +latter injury or loss in any of the modes detailed in our constitution. + +3 There is another specific kind of gift between the living, with which +the earlier jurists were quite unacquainted, and which owed its +later introduction to more recent emperors. It was called gift before +marriage, and was subject to the implied condition that it should not +be binding until the marriage had taken place; its name being due to the +fact that it was always made before the union of the parties, and could +never take place after the marriage had once been celebrated. The first +change in this matter was made by our imperial father Justin, who, as +it had been allowed to increase dowries even after marriage, issued a +constitution authorizing the increase of gifts before marriage during +the continuance of the marriage tie in cases where an increase had been +made to the dowry. The name 'gift before marriage' was, however, still +retained, though now inappropriate, because the increase was made to it +after the marriage. We, however, in our desire to perfect the law, and +to make names suit the things which they are used to denote, have by +a constitution permitted such gifts to be first made, and not merely +increased, after the celebration of the marriage, and have directed that +they shall be called gifts 'on account of' (and not 'before') marriage, +thereby assimilating them to dowries; for as dowries are not only +increased, but actually constituted, during marriage, so now gifts +on account of marriage may be not only made before the union of +the parties, but may be first made as well as increased during the +continuance of that union. + +4 There was formerly too another civil mode of acquisition, namely, by +accrual, which operated in the following way: if a person who owned +a slave jointly with Titius gave him his liberty himself alone by +vindication or by testament, his share in the slave was lost, and went +to the other joint owner by accrual. But as this rule was very bad as a +precedent--for both the slave was cheated of his liberty, and the kinder +masters suffered all the loss while the harsher ones reaped all the +gain--we have deemed it necessary to suppress a usage which seemed so +odious, and have by our constitution provided a merciful remedy, by +discovering a means by which the manumitter, the other joint owner, +and the liberated slave, may all alike be benefited. Freedom, in whose +behalf even the ancient legislators clearly established many rules at +variance with the general principles of law, will be actually acquired +by the slave; the manumitter will have the pleasure of seeing the +benefit of his kindness undisturbed; while the other joint owner, by +receiving a money equivalent proportionate to his interest, and on the +scale which we have fixed, will be indemnified against all loss. + + + + +TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE + +It sometimes happens that an owner cannot alienate, and that a nonowner +can. Thus the alienation of dowry land by the husband, without the +consent of the wife, is prohibited by the lex Iulia, although, since +it has been given to him as dowry, he is its owner. We, however, have +amended the lex Iulia, and thus introduced an improvement; for that +statute applied only to land in Italy, and though it prohibited a +mortgage of the land even with the wife's consent, it forbade it to be +alienated only without her concurrence. To correct these two defects we +have forbidden mortgages as well as alienations of dowry land even when +it is situated in the provinces, so that such land can now be dealt with +in neither of these ways, even if the wife concurs, lest the weakness +of the female sex should be used as a means to the wasting of their +property. + +1 Conversely, a pledgee, in pursuance of his agreement, may alienate +the pledge, though not its owner; this, however, may seem to rest on the +assent of the pledgor given at the inception of the contract, in which +it was agreed that the pledgee should have a power of sale in default of +repayment. But in order that creditors may not be hindered from pursuing +their lawful rights, or debtors be deemed to be overlightly deprived of +their property, provisions have been inserted in our constitution and +a definite procedure established for the sale of pledges, by which the +interests of both creditors and debtors have been abundantly guarded. + +2 We must next observe that no pupil of either sex can alienate anything +without his or her guardian's authority. Consequently, if a pupil +attempts to lend money without such authority, no property passes, and +he does not impose a contractual obligation; hence the money, if it +exists, can be recovered by real action. If the money which he attempted +to lend has been spent in good faith by the wouldbe borrower, it can +be sued for by the personal action called condiction; if it has been +fraudulently spent, the pupil can sue by personal action for its +production. On the other hand, things can be validly conveyed to pupils +of either sex without the guardian's authority; accordingly, if a debtor +wishes to pay a pupil, he must obtain the sanction of the guardian to +the transaction, else he will not be released. In a constitution +which we issued to the advocates of Caesarea at the instance of the +distinguished Tribonian, quaestor of our most sacred palace, it has with +the clearest reason been enacted, that the debtor of a pupil may safely +pay a guardian or curator by having first obtained permission by the +order of a judge, for which no fee is to be payable: and if the judge +makes the order, and the debtor in pursuance thereof makes payment, he +is completely protected by this form of discharge. Supposing, however, +that the form of payment be other than that which we have fixed, and +that the pupil, though he still has the money in his possession, or has +been otherwise enriched by it, attempts to recover the debt by action, +he can be repelled by the plea of fraud. If on the other hand he has +squandered the money or had it stolen from him, the plea of fraud will +not avail the debtor, who will be condemned to pay again, as a penalty +for having carelessly paid without the guardian's authority, and not +in accordance with our regulation. Pupils of either sex cannot validly +satisfy a debt without their guardian's authority, because the money +paid does not become the creditor's property; the principle being that +no pupil is capable of alienation without his guardian's sanction. + + + + +TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE + +We acquire property not only by our own acts, but also by the acts +of persons in our power, of slaves in whom we have a usufruct, and of +freemen and slaves belonging to another but whom we possess in good +faith. Let us now examine these cases in detail. + +1 Formerly, whatever was received by a child in power of either sex, +with the exception of military peculium, was acquired for the parent +without any distinction; and the parent was entitled to give away or +sell to one child, or to a stranger, what had been acquired through +another, or dispose of it in any other way that he pleased. This, +however, seemed to us to be a cruel rule, and consequently by a general +constitution which we have issued we have improved the children's +position, and yet reserved to parents all that was their due. This +enacts that whatever a child gains by and through property, of which +his father allows him the control, is acquired, according to the old +practice, for the father alone; for what unfairness is there in property +derived from the father returning to him? But of anything which the +child derives from any source other than his father, though his father +will have a usufruct therein, the ownership is to belong to the child, +that he may not have the mortification of seeing the gains which he has +made by his own toil or good fortune transferred to another. + +2 We have also made a new rule relating to the right which a father had +under earlier constitutions, when he emancipated a child, of retaining +absolutely, if he pleased, a third part of such property of the child +as he himself had no ownership in, as a kind of consideration for +emancipating him. The harsh result of this was that a son was by +emancipation deprived of the ownership of a third of his property; and +thus the honour which he got by being emancipated and made independent +was balanced by the diminution of his fortune. We have therefore enacted +that the parent, in such a case, shall no longer retain the ownership of +a third of the child's property, but, in lieu thereof, the usufruct of +one half; and thus the son will remain absolute owner of the whole of +his fortune, while the father will reap a greater benefit than before, +by being entitled to the enjoyment of a half instead of a third. + +3 Again, all rights which your slaves acquire by tradition, stipulation, +or any other title, are acquired for you, even though the acquisition be +without your knowledge, or even against your will; for a slave, who +is in the power of another person, can have nothing of his own. +Consequently, if he is instituted heir, he must, in order to be able to +accept the inheritance, have the command of his master; and if he has +that command, and accepts the inheritance, it is acquired for his master +exactly as if the latter had himself been instituted heir; and it is +precisely the same with a legacy. And not only is ownership acquired for +you by those in your power, but also possession; for you are deemed to +possess everything of which they have obtained detention, and thus +they are to you instruments through whom ownership may be acquired by +usucapion or long possession. + +4 Respecting slaves in whom a person has only a usufruct, the rule is, +that what they acquire by means of the property of the usufructuary, +or by their own work, is acquired for him; but what they acquire by +any other means belongs to their owner, to whom they belong themselves. +Accordingly, if such a slave is instituted heir, or made legatee +or donee, the succession, legacy, or gift is acquired, not for the +usufructuary, but for the owner. And a man who in good faith possesses a +free man or a slave belonging to another person has the same rights as +a usufructuary; what they acquire by any other mode than the two we have +mentioned belongs in the one case to the free man, in the other to the +slave's real master. After a possessor in good faith has acquired the +ownership of a slave by usucapion, everything which the slave acquires +belongs to him without distinction; but a fructuary cannot acquire +ownership of a slave in this way, because in the first place he does not +possess the slave at all, but has merely a right of usufruct in him, +and because in the second place he is aware of the existence of another +owner. Moreover, you can acquire possession as well as ownership through +slaves in whom you have a usufruct or whom you possess in good faith, +and through free persons whom in good faith you believe to be your +slaves, though as regards all these classes we must be understood to +speak with strict reference to the distinction drawn above, and to mean +only detention which they have obtained by means of your property or +their own work. + +5 From this it appears that free men not subject to your power, or whom +you do not possess in good faith, and other persons' slaves, of whom +you are neither usufructuaries nor just possessors, cannot under any +circumstances acquire for you; and this is the meaning of the maxim +that a man cannot be the means of acquiring anything for one who is +a stranger in relation to him. To this maxim there is but one +exception--namely, that, as is ruled in a constitution of the Emperor +Severus, a free person, such as a general agent, can acquire possession +for you, and that not only when you know, but even when you do not know +of the fact of the acquisition: and through this possession ownership +can be immediately acquired also, if it was the owner who delivered the +thing; and if it was not, it can be acquired ultimately by usucapion or +by the plea of long possession. + +6 So much at present concerning the modes of acquiring rights over +single things: for direct and fiduciary bequests, which are also among +such modes, will find a more suitable place in a later portion of our +treatise. We proceed therefore to the titles whereby an aggregate of +rights is acquired. If you become the successors, civil or praetorian, +of a person deceased, or adopt an independent person by adrogation, or +become assignees of a deceased's estate in order to secure their liberty +to slaves manumitted by his will, the whole estate of those persons is +transferred to you in an aggregate mass. Let us begin with inheritances, +whose mode of devolution is twofold, according as a person dies testate +or intestate; and of these two modes we will first treat of acquisition +by will. The first point which here calls for exposition is the mode in +which wills are made. + + + + +TITLE X. OF THE EXECUTION OF WILLS + +The term testament is derived from two words which mean a signifying of +intention. + +1 Lest the antiquities of this branch of law should be entirely +forgotten, it should be known that originally two kinds of testaments +were in use, one of which our ancestors employed in times of peace and +quiet, and which was called the will made in the comitia calata, while +the other was resorted to when they were setting out to battle, and was +called procinctum. More recently a third kind was introduced, called the +will by bronze and balance, because it was made by mancipation, which +was a sort of fictitious sale, in the presence of five witnesses and a +balance holder, all Roman citizens above the age of puberty, together +with the person who was called the purchaser of the family. The two +first-mentioned kinds of testament, however, went out of use even in +ancient times, and even the third, or will by bronze and balance, though +it has remained in vogue longer than they, has become partly disused. + +2 All these three kinds of will which we have mentioned belonged to the +civil law, but later still a fourth form was introduced by the praetor's +edict; for the new law of the praetor, or ius honorarium, dispensed +with mancipation, and rested content with the seals of seven witnesses, +whereas the seals of witnesses were not required by the civil law. + +3 When, however, by a gradual process the civil and praetorian +laws, partly by usage, partly by definite changes introduced by the +constitution, came to be combined into a harmonious whole, it was +enacted that a will should be valid which was wholly executed at one +time and in the presence of seven witnesses (these two points being +required, in a way, by the old civil law), to which the witnesses +signed their names--a new formality imposed by imperial legislation--and +affixed their seals, as had been required by the praetor's edict. Thus +the present law of testament seems to be derived from three distinct +sources; the witnesses, and the necessity of their all being present +continuously through the execution of the will in order that the +execution may be valid, coming from the civil law: the signing of +the document by the testator and the witnesses being due to imperial +constitutions, and the exact number of witnesses, and the sealing of the +will by them, to the praetor's edict. + +4 An additional requirement imposed by our constitution, in order to +secure the genuineness of testaments and prevent forgery, is that +the name of the heir shall be written by either the testator or the +witnesses, and generally that everything shall be done according to the +tenor of that enactment. + +5 The witnesses may all seal the testament with the same seal; for, as +Pomponius remarks, what if the device on all seven seals were the same? +It is also lawful for a witness to use a seal belonging to another +person. + +6 Those persons only can be witnesses who are legally capable of +witnessing a testament. Women, persons below the age of puberty, slaves, +lunatics, persons dumb or deaf, and those who have been interdicted from +the management of their property, or whom the law declares worthless and +unfitted to perform this office, cannot witness a will. + +7 In cases where one of the witnesses to a will was thought free at the +time of its execution, but was afterwards discovered to be a slave, the +Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the +Emperors Severus and Antoninus declared that of their goodness they +would uphold such a will as validly made; for, at the time when it was +sealed, this witness was admitted by all to be free, and, as such, had +had his civil position called in question by no man. + +8 A father and a son in his power, or two brothers who are both in the +power of one father, can lawfully witness the same testament, for there +can be no harm in several persons of the same family witnessing together +the act of a man who is to them a stranger. + +9 No one, however, ought to be among the witnesses who is in the +testator's power, and if a son in power makes a will of military +peculium after his discharge, neither his father nor any one in his +father's power is qualified to be a witness; for it is not allowed to +support a will by the evidence of persons in the same family with the +testator. + +10 No will, again, can be witnessed by the person instituted heir, or +by any one in his power, or by a father in whose power he is, or by a +brother under the power of the same father: for the execution of a will +is considered at the present day to be purely and entirely a transaction +between the testator and the heir. Through mistaken ideas on this matter +the whole law of testamentary evidence fell into confusion: for the +ancients, though they rejected the evidence of the purchaser of the +family and of persons connected with him by the tie of power, allowed +a will to be witnessed by the heir and persons similarly connected with +him, though it must be admitted that they accompanied this privilege +with urgent cautions against its abuse. We have, however, amended this +rule, and enacted in the form of law what the ancients expressed in the +form only of advice, by assimilating the heir to the old purchaser of +the family, and have rightly forbidden the heir, who now represents that +character, and all other persons connected with him by the tie referred +to, to bear witness in a matter in which, in a sense, they would be +witnesses in their own behalf. Accordingly, we have not allowed earlier +constitutions on this subject to be inserted in our Code. + +11 Legatees, and persons who take a benefit under a will by way of +trust, and those connected with them, we have not forbidden to be +witnesses, because they are not universal successors of the deceased: +indeed, by one of our constitutions we have specially granted this +privilege to them, and, a fortiori, to persons in their power, or in +whose power they are. + +12 It is immaterial whether the will be written on a tablet, paper, +parchment, or any other substance: and a man may execute any number of +duplicates of his will, for this is sometimes necessary, though in each +of them the usual formalities must be observed. For instance, a person +setting out upon a voyage may wish to take a statement of his last +wishes along with him, and also to leave one at home; and numberless +other circumstances which happen to a man, and over which he has no +control, will make this desirable. + +14 So far of written wills. When, however, one wishes to make a will +binding by the civil law, but not in writing, he may summon seven +witnesses, and in their presence orally declare his wishes; this, it +should be observed, being a form of will which has been declared by +constitutions to be perfectly valid by civil law. + + + + +TITLE XI. OF SOLDIERS' WILLS + +Soldiers, in consideration of their extreme ignorance of law, have +been exempted by imperial constitutions from the strict rules for the +execution of a testament which have been described. Neither the legal +number of witnesses, nor the observance of the other rules which have +been stated, is necessary to give force to their wills, provided, that +is to say, that they are made by them while on actual service; this +last qualification being a new though wise one introduced by our +constitution. Thus, in whatever mode a soldier's last wishes are +declared, whether in writing or orally, this is a binding will, by force +of his mere intention. At times, however, when they are not employed +on actual service, but are living at home or elsewhere, they are not +allowed to claim this privilege: they may make a will, even though they +be sons in power, in virtue of their service, but they must observe the +ordinary rules, and are bound by the forms which we described above as +requisite in the execution of wills of civilians. + +1 Respecting the testaments of soldiers the Emperor Trajan sent a +rescript to Statilius Severus in the following terms: 'The privilege +allowed to soldiers of having their wills upheld, in whatever manner +they are made, must be understood to be limited by the necessity of +first proving that a will has been made at all; for a will can be made +without writing even by civilians. Accordingly, with reference to the +inheritance which is the subject of the action before you, if it can be +shown that the soldier who left it, did in the presence of witnesses, +collected expressly for this purpose, declare orally who he wished to be +his heir, and on what slaves he wished to confer liberty, it may well +be maintained that in this way he made an unwritten testament, and his +wishes therein declared ought to be carried out. But if, as is so common +in ordinary conversation, he said to some one, I make you my heir, or, I +leave you all my property, such expressions cannot be held to amount to +a testament, and the interest of the very soldiers, who are privileged +in the way described, is the principal ground for rejecting such a +precedent. For if it were admitted, it would be easy, after a soldier's +death, to procure witnesses to affirm that they had heard him say he +left his property to any one they pleased to name, and in this way it +would be impossible to discover the true intentions of the deceased.' + +2 A soldier too may make a will though dumb and deaf. + +3 This privilege, however, which we have said soldiers enjoy, is allowed +them by imperial constitutions only while they are engaged on actual +service, and in camp life. Consequently, if veterans wish to make a will +after their discharge, or if soldiers actually serving wish to do this +away from camp, they must observe the forms prescribed for all +citizens by the general law; and a testament executed in camp without +formalities, that is to say, not according to the form prescribed by +law, will remain valid only for one year after the testator's discharge. +Supposing then that the testator died within a year, but that a +condition, subject to which the heir was instituted, was not fulfilled +within the year, would it be feigned that the testator was a soldier at +the date of his decease, and the testament consequently upheld? and this +question we answer in the affirmative. + +4 If a man, before going on actual service, makes an invalid will, +and then during a campaign opens it, and adds some new disposition, or +cancels one already made, or in some other way makes it clear that he +wishes it to be his testament, it must be pronounced valid, as being, in +fact, a new will made by the man as a soldier. + +5 Finally, if a soldier is adrogated, or, being a son in power, is +emancipated, his previously executed will remains good by the fiction +of a new expression of his wishes as a soldier, and is not deemed to be +avoided by his loss of status. + +6 It is, however, to be observed that earlier statutes and imperial +constitutions allowed to children in power in certain cases a civil +peculium after the analogy of the military peculium, which for that +reason was called quasimilitary, and of which some of them were +permitted to dispose by will even while under power. By an extension +of this principle our constitution has allowed all persons who have a +peculium of this special kind to dispose of it by will, though subject +to the ordinary forms of law. By a perusal of this constitution the +whole law relating to this privilege may be ascertained. + + + + +TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS + +Certain persons are incapable of making a lawful will. For instance, +those in the power of others are so absolutely incapable that they +cannot make a testament even with the permission of their parents, with +the exception of those whom we have enumerated, and particularly of +children in power who are soldiers, and who are permitted by imperial +constitution to dispose by will of all they may acquire while on actual +service. This was allowed at first only to soldiers on active service, +by the authority of the Emperors Augustus and Nerva, and of the +illustrious Emperor Trajan; afterwards, it was extended by an enactment +of the Emperor Hadrian to veterans, that is, soldiers who had received +their discharge. Accordingly, if a son in power makes a will of his +military peculium, it will belong to the person whom he institutes +as heir: but if he dies intestate, leaving no children or brothers +surviving him, it will go to the parent in whose power he is, according +to the ordinary rule. From this it can be understood that a parent +has no power to deprive a son in his power of what he has acquired on +service, nor can the parent's creditors sell or otherwise touch it; and +when the parent dies it is not shared between the soldier's son and +his brothers, but belongs to him alone, although by the civil law the +peculium of a person in power is always reckoned as part of the property +of the parent, exactly as that of a slave is deemed part of the property +of his master, except of course such property of the son as by imperial +constitutions, and especially our own, the parent is unable to acquire +in absolute ownership. Consequently, if a son in power, not having a +military or quasimilitary peculium, makes a will, it is invalid, even +though he is released from power before his decease. + +1 Again, a person under the age of puberty is incapable of making a +will, because he has no judgement, and so too is a lunatic, because he +has lost his reason; and it is immaterial that the one reaches the age +of puberty, and the other recovers his faculties, before his decease. +If, however, a lunatic makes a will during a lucid interval, the will +is deemed valid, and one is certainly valid which he made before he +lost his reason: for subsequent insanity never avoids a duly executed +testament or any other disposition validly made. + +2 So too a spendthrift, who is interdicted from the management of his +own affairs, is incapable of making a valid will, though one made by him +before being so interdicted holds good. + +3 The deaf, again, and the dumb cannot always make a will, though here +we are speaking not of persons merely hard of hearing, but of total +deafness, and similarly by a dumb person is meant one totally dumb, and +not one who merely speaks with difficulty; for it often happens that +even men of culture and learning by some cause or other lose the +faculties of speech and hearing. Hence relief has been afforded them by +our constitution, which enables them, in certain cases and in certain +modes therein specified, to make a will and other lawful dispositions. +If a man, after making his will, becomes deaf or dumb through ill health +or any other cause, it remains valid notwithstanding. + +4 A blind man cannot make a will, except by observing the forms +introduced by a law of our imperial father Justin. + +5 A will made by a prisoner while in captivity with the enemy is +invalid, even though he subsequently returns. One made, however, +while he was in his own state is valid, if he returns, by the law of +postliminium; if he dies in captivity it is valid by the lex Cornelia. + + + + +TITLE XIII. OF THE DISINHERISON OF CHILDREN + +The law, however, is not completely satisfied by the observance of the +rules hereinbefore explained. A testator who has a son in his power must +take care either to institute him heir, or to specially disinherit him, +for passing him over in silence avoids the will; and this rule is so +strict, that even if the son die in the lifetime of the father no heir +can take under the will, because of its original nullity. As regards +daughters and other descendants of either sex by the male line, the +ancients did not observe this rule in all its strictness; for if these +persons were neither instituted nor disinherited, the will was not +avoided, but they were entitled to come in with the instituted heirs, +and to take a certain portion of the inheritance. And these persons the +ascendant was not obliged to specially disinherit; he could disinherit +them collectively by a general clause. + +1 Special disinherison may be expressed in these terms--'Be Titius +my son disinherited,' or in these, 'Be my son disinherited,' without +inserting the name, supposing there is no other son. Children born +after the making of the will must also be either instituted heirs or +disinherited, and in this respect are similarly privileged, that if a +son or any other family heir, male or female, born after the making of +the will, be passed over in silence, the will, though originally valid, +is invalidated by the subsequent birth of the child, and so becomes +completely void. Consequently, if the woman from whom a child was +expected to have an abortive delivery, there is nothing to prevent the +instituted heirs from taking the inheritance. It was immaterial +whether the female family heirs born after the making of the will were +disinherited specially or by a general clause, but if the latter mode be +adopted, some legacy must be left them in order that they may not seem +to have been passed over merely through inadvertence: but male +family heirs born after the making of the will, sons and other lineal +descendants, are held not to be properly disinherited unless they are +disinherited specially, thus: 'Be any son that shall be born to me +disinherited.' + +2 With children born after the making of the will are classed children +who succeed to the place of a family heir, and who thus, by an event +analogous to subsequent birth, become family heirs to an ancestor. +For instance, if a testator have a son, and by him a grandson or +granddaughter in his power, the son alone, being nearer in degree, +has the right of a family heir, although the grandchildren are in the +testator's power equally with him. But if the son die in the testator's +lifetime, or is in some other way released from his power, the +grandson and granddaughter succeed to his place, and thus, by a kind of +subsequent birth, acquire the rights of family heirs. To prevent this +subsequent avoidance of one's will, grandchildren by a son must be +either instituted heirs or disinherited, exactly as, to secure the +original validity of a testament, a son must be either instituted or +specially disinherited; for if the son die in the testator's lifetime, +the grandson and granddaughter take his place, and avoid the will just +as if they were children born after its execution. And this disinherison +was first allowed by the lex Iunia Vallaea, which explains the form +which is to be used, and which resembles that employed in disinheriting +family heirs born after the making of a will. + +3 It is not necessary, by the civil law, to either institute or +disinherit emancipated children, because they are not family heirs. But +the praetor requires all, females as well as males, unless instituted, +to be disinherited, males specially, females collectively; and if they +are neither appointed heirs nor disinherited as described, the praetor +promises them possession of goods against the will. + +4 Adopted children, so long as they are in the power of their adoptive +father, are in precisely the same legal position as children born +in lawful wedlock; consequently they must be either instituted or +disinherited according to the rules stated for the disinherison of +natural children. When, however, they have been emancipated by their +adoptive father, they are no longer regarded as his children either +by the civil law or by the praetor's edict. Conversely, in relation to +their natural father, so long as they remain in the adoptive family they +are strangers, so that he need neither institute nor disinherit them: +but when emancipated by their adoptive father, they have the same rights +in the succession to their natural father as they would have had if it +had been he by whom they were emancipated. Such was the law introduced +by our predecessors. + +5 Deeming, however, that between the sexes, to each of which nature +assigns an equal share in perpetuating the race of man, there is in this +matter no real ground of distinction, and marking that, by the ancient +statute of the Twelve Tables, all were called equally to the succession +on the death of their ancestor intestate (which precedent the praetors +also seem to have subsequently followed), we have by our constitution +introduced a simple system of the same kind, applying uniformly to sons, +daughters, and other descendants by the male line, whether born before +or after the making of the will. This requires that all children, +whether family heirs or emancipated, shall be specially disinherited, +and declares that their pretermission shall have the effect of avoiding +the will of their parent, and depriving the instituted heirs of the +inheritance, no less than the pretermission of children who are family +heirs or who have been emancipated, whether already born, or born after, +though conceived before the making of the will. In respect of adoptive +children we have introduced a distinction, which is explained in our +constitution on adoptions. + +6 If a soldier engaged on actual service makes a testament without +specially disinheriting his children, whether born before or after the +making of the will, but simply passing over them in silence, though he +knows that he has children, it is provided by imperial constitutions +that his silent pretermission of them shall be equivalent to special +disinherison. + +7 A mother or maternal grandfather is not bound to institute her or his +children or grandchildren; they may simply omit them, for silence on the +part of a mother, or of a maternal grandfather or other ascendant, has +the same effect as actual disinherison by a father. For neither by the +civil law, nor by that part of the praetor's edict in which he promises +children who are passed over possession of goods against the will, is +a mother obliged to disinherit her son or daughter if she does not +institute them heirs, or a maternal grandfather to be equally precise +with reference to grandchildren by a daughter: though such children and +grandchildren, if omitted, have another remedy, which will shortly be +explained. + + + + +TITLE XIV. OF THE INSTITUTION OF THE HEIR + +A man may institute as his heirs either free men or slaves, and either +his own slaves or those of another man. If he wished to institute +his own slave it was formerly necessary, according to the more common +opinion, that he should expressly give him his liberty in the will: +but now it is lawful, by our constitution, to institute one's own slave +without this express manumission--a change not due to any spirit of +innovation, but to a sense of equity, and one whose principle was +approved by Atilicinus, as it is stated by Seius in his books on +Masurius Sabinus and on Plautius. Among a testator's own slaves is to be +reckoned one of whom he is bare owner, the usufruct being vested in some +other person. There is, however, one case in which the institution of a +slave by his mistress is void, even though freedom be given him in +the will, as is provided by a constitution of the Emperors Severus and +Antoninus in these terms: 'Reason demands that no slave, accused of +criminal intercourse with his mistress, shall be capable of being +manumitted, before his sentence is pronounced, by the will of the woman +who is accused of participating in his guilt: accordingly if he be +instituted heir by that mistress, the institution is void.' Among 'other +persons' slaves' is reckoned one in whom the testator has a usufruct. + +1 If a slave is instituted heir by his own master, and continues in that +condition until his master's decease, he becomes by the will both free, +and necessary heir. But if the testator himself manumits him in his +lifetime, he may use his own discretion about acceptance; for he is not +a necessary heir, because, though he is named heir to the testament, it +was not by that testament that he became free. If he has been alienated, +he must have the order of his new master to accept, and then his master +becomes heir through him, while he personally becomes neither heir nor +free, even though his freedom was expressly given him in the testament, +because by alienating him his former master is presumed to have +renounced the intention of enfranchising him. When another person's +slave is instituted heir, if he continues in the same condition he +must have the order of his master to accept; if alienated by him in +the testator's lifetime, or after the testator's death but before +acceptance, he must have the order of the alienee to accept; finally, if +manumitted in the testator's lifetime, or after the testator's death but +before acceptance, he may accept or not at his own discretion. + +2 A slave who does not belong to the testator may be instituted heir +even after his master's decease, because slaves who belong to an +inheritance are capable of being instituted or made legatees; for an +inheritance not yet accepted represents not the future heir but the +person deceased. Similarly, the slave of a child conceived but not yet +born may be instituted heir. + +3 If a slave belonging to two or more joint owners, both or all of whom +are legally capable of being made heirs or legatees, is instituted heir +by a stranger, he acquires the inheritance for each and all of the joint +owners by whose orders he accepts it in proportion to the respective +shares in which they own him. + +4 A testator may institute either a single heir, or as many as he +pleases. + +5 An inheritance is usually divided into twelve ounces, and is denoted +in the aggregate by the term as, and each fraction of this aggregate, +ranging from the ounce up to the as or pound, has its specific name, as +follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12), +semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6), +deunx (11/12), and as it is not necessary, however, that there +should always be twelve ounces, for for the purposes of testamentary +distribution an as may consist of as many ounces as the testator +pleases; for instance, if a testator institutes only a single heir, +but declares that he is to be heir ex semisse, or to one half of the +inheritance, this half will really be the whole, for no one can die +partly testate and partly intestate, except soldiers, in the carrying +out of whose wills the intention is the only thing regarded. Conversely, +a testator may divide his inheritance into as large a number of ounces +as he pleases. + +6 If more heirs than one are instituted, it is unnecessary for the +testator to assign a specific share in the inheritance to each, unless +he intends that they shall not take in equal portions; for it is obvious +that if no shares are specified they divide the inheritance equally +between them. Supposing, however, that specific shares are assigned to +all the instituted heirs except one, who is left without any express +share at all, this last heir will be entitled to any fraction of the as +which has not been disposed of; and if there are two or more heirs +to whom no specific shares have been assigned, they will divide this +unassigned fraction equally between them. Finally, if the whole as has +been assigned in specific shares to some of the heirs, the one or more +who have no specific shares take half of the inheritance, while the +other half is divided among the rest according to the shares assigned to +them; and it is immaterial whether the heir who has no specified share +come first or last in the institution, or occupies some intermediate +place; for such share is presumed to be given to him as is not in some +other way disposed of. + +7 Let us now see how the law stands if some part remains undisposed of, +and yet each heir has his share assigned to him--if, for instance +there are three heirs instituted, and each is assigned a quarter of the +inheritance. It is evident that in this case the part undisposed of will +go to them in proportion to the share each has assigned to him by +the will, and it will be exactly as if they had each been originally +instituted to a third. Conversely, if each heir is given so large a +fraction that the as will be exceeded, each must suffer a proportionate +abatement; thus if four heirs are instituted, and to each is assigned +a third of the inheritance, it will be the same as if each had been +originally instituted to a quarter. + +8 If more than twelve ounces are distributed among some of the heirs +only, one being left without a specific share, he will have what is +wanting to complete the second as; and the same will be done if more +than twenty-four ounces are distributed, leaving him shareless; but all +these ideal sums are afterwards reduced to the single as, whatever be +the number of ounces they comprise. + +9 The institution of the heir may be either absolute or conditional, but +no heir can be instituted from, or up to, some definite date, as, for +instance, in the following form--'be so and so my heir after five years +from my decease,' or 'after the calends of such a month,' or 'up to and +until such calends'; for a time limitation in a will is considered a +superfluity, and an heir instituted subject to such a time limitation is +treated as heir absolutely. + +10 If the institution of an heir, a legacy, a fiduciary bequest, or a +testamentary manumission is made to depend on an impossible condition, +the condition is deemed unwritten, and the disposition absolute. + +11 If an institution is made to depend on two or more conditions, +conjunctively expressed,--as, for instance, 'if this and that shall be +done'--all the conditions must be satisfied: if they are expressed +in the alternative, or disjunctively--as 'if this or that shall be +done'--it is enough if one of them alone is satisfied. + +12 A testator may institute as his heir a person whom he has never seen, +for instance, nephews who have been born abroad and are unknown to him: +for want of this knowledge does not invalidate the institution. + + + + +TITLE XV. OF ORDINARY SUBSTITUTION + +A testator may institute his heirs, if he pleases, in two or more +degrees, as, for instance, in the following form: 'If A shall not be +my heir, then let B be my heir'; and in this way he can make as many +substitutions as he likes, naming in the last place one of his own +slaves as necessary heir, in default of all others taking. + +1 Several may be substituted in place of one, or one in place of +several, or to each heir may be substituted a new and distinct person, +or, finally, the instituted heirs may be substituted reciprocally in +place of one another. + +2 If heirs who are instituted in equal shares are reciprocally +substituted to one another, and the shares which they are to have in +the substitution are not specified, it is presumed (as was settled by +a rescript of the Emperor Pius) that the testator intended them to take +the same shares in the substitution as they took directly under the +will. + +3 If a third person is substituted to one heir who himself is +substituted to his coheir, the Emperors Severus and Antoninus decided +by rescript that this third person is entitled to the shares of both +without distinction. + +4 If a testator institutes another man's slave, supposing him to be an +independent person, and substitutes Maevius in his place to meet the +case of his not taking the inheritance, then, if the slave accepts +by the order of his master, Maevius is entitled to a half. For, when +applied to a person whom the testator knows to be in the power of +another, the words 'if he shall not be my heir' are taken to mean 'if +he shall neither be heir himself nor cause another to be heir'; but when +applied to a person whom the testator supposes to be independent, they +mean 'if he shall not acquire the inheritance either for himself, or for +that person to whose power he shall subsequently become subject,' and +this was decided by Tiberius Caesar in the case of his slave Parthenius. + + + + +TITLE XVI. OF PUPILLARY SUBSTITUTION + +To children below the age of puberty and in the power of the testator, +not only can such a substitute as we have described be appointed, that +is, one who shall take on their failing to inherit, but also one who +shall be their heir if, after inheriting, they die within the age of +puberty; and this may be done in the following terms, 'Be my son Titius +my heir; and if he does not become my heir, or, after becoming my heir, +die before becoming his own master (that is, before reaching puberty), +then be Seius my heir.' In which case, if the son fails to inherit, +the substitute is the heir of the testator; but if the son, after +inheriting, dies within the age of puberty, he is the heir of the son. +For it is a rule of customary law, that when our children are too young +to make wills for themselves, their parents may make them for them. + +1 The reason of this rule has induced us to assert in our Code a +constitution, providing that if a testator has children, grandchildren, +or greatgrandchildren who are lunatics or idiots, he may, after the +analogy of pupillary substitution, substitute certain definite persons +to them, whatever their sex or the nearness of their relationship to +him, and even though they have reached the age of puberty; provided +always that on their recovering their faculties such substitution shall +at once become void, exactly as pupillary substitution proper ceases to +have any operation after the pupil has reached puberty. + +2 Thus, in pupillary substitution effected in the form described, there +are, so to speak, two wills, the father's and the son's, just as if the +son had personally instituted an heir to himself; or rather, there is +one will dealing with two distinct matters, that is, with two distinct +inheritances. + +3 If a testator be apprehensive that, after his own death, his son, +while still a pupil, may be exposed to the danger of foul play, because +another person is openly substituted to him, he ought to make the +ordinary substitution openly, and in the earlier part of the testament, +and write the other substitution, wherein a man is named heir on the +succession and death of the pupil, separately on the lower part of the +will; and this lower part he should tie with a separate cord and fasten +with a separate seal, and direct in the earlier part of the will that it +shall not be opened in the lifetime of the son before he attains the age +of puberty. Of course a substitution to a son under the age of puberty +is none the less valid because it is a integral part of the very will +in which the testator has instituted him his heir, though such an open +substitution may expose the pupil to the danger of foul play. + +4 Not only when we leave our inheritance to children under the age +of puberty can we make such a substitution, that if they accept the +inheritance, and then die under that age, the substitute is their heir, +but we can do it when we disinherit them, so that whatever the pupil +acquires by way of inheritance, legacy or gift from his relatives or +friends, will pass to the substitute. What has been said of +substitution to children below the age of puberty, whether instituted or +disinherited, is true also of substitution to afterborn children. + +5 In no case, however, may a man make a will for his children unless +he makes one also for himself; for the will of the pupil is but a +complementary part of the father's own testament; accordingly, if the +latter is void, the former will be void also. + +6 Substitution may be made either to each child separately, or only to +such one of them as shall last die under the age of puberty. The first +is the proper plan, if the testator's intention is that none of them +shall die intestate: the second, if he wishes that, as among them, the +order of succession prescribed by the Twelve Tables shall be strictly +preserved. + +7 The person substituted in the place of a child under the age of +puberty may be either named individually--for instance, Titius--or +generally prescribed, as by the words 'whoever shall be my heir'; in +which latter case, on the child dying under the age of puberty, +those are called to the inheritance by the substitution who have been +instituted heirs and have accepted, their shares in the substitution +being proportionate to the shares in which they succeeded the father. + +8 This kind of substitution may be made to males up to the age of +fourteen, and to females up to that of twelve years; when this age is +once passed, the substitution becomes void. + +9 To a stranger, or a child above the age of puberty whom a man has +instituted heir, he cannot appoint a substitute to succeed him if he +take and die within a certain time: he has only the power to bind him by +a trust to convey the inheritance to another either wholly or in part; +the law relating to which subject will be explained in its proper place. + + + + +TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID + +A duly executed testament remains valid until either revoked or +rescinded. + +1 A will is revoked when, though the civil condition of the testator +remains unaltered, the legal force of the will itself is destroyed, as +happens when, after making his will, a man adopts as his son either an +independent person, in which case the adoption is effected by imperial +decree, or a person already in power, when it is done through the agency +of the praetor according to our constitution. In both these cases the +will is revoked, precisely as it would be by the subsequent birth of a +family heir. + +2 Again, a subsequent will duly executed is a revocation of a prior +will, and it makes no difference whether an heir ever actually takes +under it or not; the only question is whether one might conceivably have +done so. Accordingly, whether the person instituted declines to be heir, +or dies in the lifetime of the testator, or after his death but before +accepting the inheritance, or is excluded by failure of the condition +under which he was instituted--in all the cases the testator dies +intestate; for the earlier will is revoked by the later one, and the +later one is inoperative, as no heir takes under it. + +3 If, after duly making one will, a man executes a second one which is +equally valid, the Emperors Severus and Antoninus decided by rescript +that the first is revoked by the second, even though the heir instituted +in the second is instituted to certain things only. The terms of this +enactment we have ordered to be inserted here, because it contains +another provision. 'The Emperors Severus and Antoninus to Cocceius +Campanus. A second will, although the heir named therein be instituted +to certain things only, is just as valid as if no mention of the things +had been made: but the heir is bound to content himself with the things +given him, or with such further portion of the inheritance as will make +up the fourth part to which he is entitled under the lex Falcidia, and +(subject thereto) to transfer the inheritance to the persons instituted +in the earlier will: for the words inserted in the later will +undoubtedly contain the expression of a wish that the earlier one shall +remain valid.' This accordingly is a mode in which a testament may be +revoked. + +4 There is another event by which a will duly executed may be +invalidated, namely, the testator's undergoing a loss of status: how +this may happen was explained in the preceding Book. + +5 In this case the will may be said to be rescinded, though both those +that are revoked, and those that are not duly executed, may be said to +become or be rescinded; and similarly too those which are duly executed +but subsequently rescinded by loss of status may be said to be revoked. +However, as it is convenient that different grounds of invalidity should +have different names to distinguish them, we say that some wills are +unduly executed from the commencement, while others which are duly +executed are either revoked or rescinded. + +6 Wills, however, which, though duly executed, are subsequently +rescinded by the testator's undergoing loss of status are not altogether +inoperative: for if the seals of seven witnesses are attached, the +instituted heir is entitled to demand possession in accordance with the +will, if only the testator were a citizen of Rome and independent at +the time of his decease; but if the cause of the rescission was +the testator's subsequent loss of citizenship or of freedom, or his +adoption, and he dies an alien, or slave, or subject to his adoptive +father's power, the instituted heir is barred from demanding possession +in accordance with the will. + +7 The mere desire of a testator that a will which he has executed shall +no longer have any validity is not, by itself, sufficient to avoid +it; so that, even if he begins to make a later will, which he does not +complete because he either dies first, or changes his mind, the first +will remains good; it being provided in an address of the Emperor +Pertinax to the Senate that one testament which is duly executed is not +revoked by a later one which is not duly and completely executed; for an +incomplete will is undoubtedly null. + +8 In the same address the Emperor declared that he would accept no +inheritance to which he was made heir on account of a suit between the +testator and some third person, nor would he uphold a will in which he +was instituted in order to screen some legal defect in its execution, +or accept an inheritance to which he was instituted merely by word of +mouth, or take any testamentary benefit under a document defective in +point of law. And there are numerous rescripts of the Emperors Severus +and Antoninus to the same purpose: 'for though,' they say, 'the laws do +not bind us, yet we live in obedience to them.' + + + + +TITLE XVIII. OF AN UNDUTEOUS WILL + +Inasmuch as the disinherison or omission by parents of their children +has generally no good reason, those children who complain that they have +been wrongfully disinherited or passed over have been allowed to bring +an action impeaching the will as unduteous, under the pretext that the +testator was of unsound mind at the time of its execution. This does +not mean that he was really insane, but that the will, though legally +executed, bears no mark of that affection to which a child is entitled +from a parent: for if a testator is really insane, his will is void. + +1 Parents may impeach the wills of their children as unduteous, as well +as children those of their parents. Brothers and sisters of the testator +are by imperial constitutions preferred to infamous persons who are +instituted to their exclusion, so that it is in these cases only that +they can bring this action. Persons related to the testator in a further +degree than as brothers or sisters can in no case bring the action, or +at any rate succeed in it when brought. + +2 Children fully adopted, in accordance with the distinction drawn in +our constitution, can bring this action as well as natural children, but +neither can do so unless there is no other mode in which they can obtain +the property of the deceased: for those who can obtain the inheritance +wholly or in part by any other title are barred from attacking a will as +unduteous. Afterborn children too can employ this remedy, if they can by +no other means recover the inheritance. + +3 That they may bring the action must be understood to mean, that +they may bring it only if absolutely nothing has been left them by the +testator in his will: a restriction introduced by our constitution out +of respect for a father's natural rights. If, however, a part of the +inheritance, however small, or even a single thing is left them, the +will cannot be impeached, but the heir must, if necessary, make up what +is given them to a fourth of what they would have taken had the testator +died intestate, even though the will does not direct that this fourth is +to be made up by the assessment of an honest and reliable man. + +4 If a guardian accepts, under his own father's will, a legacy on behalf +of the pupil under his charge, the father having left nothing to him +personally, he is in no way debarred from impeaching his father's will +as unduteous on his own account. + +5 On the other hand, if he impeaches the will of his pupil's father on +the pupil's behalf, because nothing has been left to the latter, and is +defeated in the action, he does not lose a legacy given in the same will +to himself personally. + +6 Accordingly, that a person may be barred from the action impeaching +the will, it is requisite that he should have a fourth of what he would +have taken on intestacy, either as heir, legatee direct or fiduciary, +donee in contemplation of death, by gift from the testator in his +lifetime (though gift of this latter kind bars the action only if made +under any of the circumstances mentioned in our constitution) or in any +of the other modes stated in the imperial legislation. + +7 In what we have said of the fourth we must be understood to mean that +whether there be one person only, or more than one, who can impeach the +will as unduteous, onefourth of the whole inheritance may be given them, +to be divided among them all proportionately, that is to say, to each +person a fourth of what he would have had if the testator had died +intestate. + + + + +TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS + +Heirs are of three kinds, that is to say, they are either necessary, +family heirs and necessary, or external. + +1 A necessary heir is a slave of the testator, whom he institutes as +heir: and he is so named because, willing or unwilling, and without +any alternative, he becomes free and necessary heir immediately on the +testator's decease. For when a man's affairs are embarrassed, it is +common for one of his slaves to be instituted in his will, either in +the first place, or as a substitute in the second or any later place, so +that, if the creditors are not paid in full, the heir may be insolvent +rather than the testator, and his property, rather than the testator's, +may be sold by the creditors and divided among them. To balance this +disadvantage he has this advantage, that his acquisitions after the +testator's decease are for his own sole benefit; and although the estate +of the deceased is insufficient to pay the creditors in full, the heir's +subsequent acquisitions are never on that account liable to a second +sale. + +2 Heirs who are both family heirs and necessary are such as a son or a +daughter, a grandchild by a son, and further similar lineal descendants, +provided that they are in the ancestor's power at the time of his +decease. To make a grandson or granddaughter a family heir it is, +however, not sufficient for them to be in the grandfather's power at +the moment of his decease: it is further requisite that their own father +shall, in the lifetime of the grandfather, have ceased to be the family +heir himself, whether by death or by any other mode of release from +power: for by this event the grandson and granddaughter succeed to the +place of their father. They are called family heirs, because they are +heirs of the house, and even in the lifetime of the parent are to a +certain extent deemed owners of the inheritance: wherefore in intestacy +the first right of succession belongs to the children. They are called +necessary heirs because they have no alternative, but, willing or +unwilling, both where there is a will and where there is not, they +become heirs. The praetor, however, permits them, if they wish, to +abstain from the inheritance, and leave the parent to become insolvent +rather than themselves. + +3 Those who are not subject to the testator's power are called external +heirs. Thus children of ours who are not in our power, if instituted +heirs by us, are deemed external heirs; and children instituted by their +mother belong to this class, because women never have children in +their power. Slaves instituted heirs by their masters, and manumitted +subsequently to the execution of the will, belong to the same class. + +4 It is necessary that external heirs should have testamentary capacity, +whether it is an independent person, or some one in his power, who is +instituted: and this capacity is required at two times; at the same time +of the making of the will, when, without it, the institution would be +void; and at the same time of the testator's decease, when, without +it, the institution would have no effect. Moreover, the instituted +heir ought to have this capacity also at the time when he accepts +the inheritance, whether he is instituted absolutely or subject to a +condition; and indeed it is especially at this time that his capacity to +take ought to be looked to. If, however, the instituted heir undergoes +a loss of status in the interval between the making of the will and +the testator's decease, or the satisfaction of the condition subject to +which he was instituted, he is not thereby prejudiced: for, as we +said, there are only three points of time which have to be regarded. +Testamentary capacity thus does not mean merely capacity to make a will; +it also means capacity to take for oneself, or for the father or master +in whose power one is, under the will of another person: and this latter +kind of testamentary capacity is quite independent of the capacity to +make a will oneself. Accordingly, even lunatics, deaf persons, afterborn +children, infants, children in power, and other persons' slaves are said +to have testamentary capacity; for though they cannot make a valid will, +they can acquire for themselves or for another under a will made by +someone else. + +5 External heirs have the privilege of deliberating whether they will +accept or disclaim an inheritance. But if a person who is entitled +to disclaim interferes with the inheritance, or if one who has the +privilege of deliberation accepts it, he no longer has the power of +relinquishing it, unless he is a minor under the age of twentyfive +years, for minors obtain relief from the praetor when they incautiously +accept a disadvantageous inheritance, as well as when they take any +other injudicious step. + +6 It is, however, to be observed that the Emperor Hadrian once relieved +even a person who had attained his majority, when, after his accepting +the inheritance, a great debt, unknown at the time of acceptance, had +come to light. This was but the bestowal of an especial favour on +a single individual; the Emperor Gordian subsequently extended the +privilege, but only to soldiers, to whom it was granted as a class. We, +however, in our benevolence have placed this benefit within the reach of +all our subjects, and drafted a constitution as just as it is splendid, +under which, if heirs will but observe its terms, they can accept an +inheritance without being liable to creditors and legatees beyond the +value of the property. Thus so far as their liability is concerned there +is no need for them to deliberate on acceptance, unless they fail to +observe the procedure of our constitution, and prefer deliberation, by +which they will remain liable to all the risks of acceptance under the +older law. + +7 An external heir, whether his right accrue to him under a will or +under the civil law of intestate succession, can take the inheritance +either by acting as heir, or by the mere intention to accept. By acting +as heir is mean, for instance, using things belonging to the inheritance +as one's own, or selling them, or cultivating or giving leases of the +deceased's estates, provided only one expresses in any way whatsoever, +by deed or word, one's intention to accept the inheritance, so long as +one knows that the person with whose property one is thus dealing has +died testate or intestate, and that one is that person's heir. To act as +heir, in fact, is to act as owner, and the ancients often used the term +'heir' as equivalent to the term 'owner.' And just as the mere intention +to accept makes an external heir heir, so too the mere determination not +to accept bars him from the inheritance. Nothing prevents a person who +is born deaf or dumb, or who becomes so after birth, from acting as heir +and thus acquiring the inheritance, provided only he knows what he is +doing. + + + + +TITLE XX. OF LEGACIES + +Let us now examine legacies:--a kind of title which seems foreign to +the matter at hand, for we are expounding titles whereby aggregates of +rights are acquired; but as we have treated in full of wills and heirs +appointed by will, it was natural in close connexion therewith to +consider this mode of acquisition. + +1 Now a legacy is a kind of gift left by a person deceased; + +2 and formerly they were of four kinds, namely, legacy by vindication, +by condemnation, by permission, and by preception, to each of which a +definite form of words was appropriated by which it was known, and which +served to distinguish it from legacies of the other kinds. Solemn +forms of words of this sort, however, have been altogether abolished by +imperial constitutions; and we, desiring to give greater effect to the +wishes of deceased persons, and to interpret their expressions with +reference rather to those wishes than to their strict literal meaning, +have issued a constitution, composed after great reflection, enacting +that in future there shall be but one kind of legacy, and that, whatever +be the terms in which the bequest is couched, the legatee may sue for +it no less by real or hypothecary than by personal action. How carefully +and wisely this constitution is worded may be ascertained by a perusal +of its contents. + +3 We have determined, however, to go even beyond this enactment; for, +observing that the ancients subjected legacies to strict rules, while +the rules which they applied to fiduciary bequests, as springing more +directly from the deceased person's wishes, were more liberal, we have +deemed it necessary to assimilate the former completely to the latter, +so that any future features in which legacies are inferior to fiduciary +bequests may be supplied to them from the latter, and the latter +themselves may in future possess any superiority which has hitherto +been enjoyed by legacies only. In order, however, to avoid perplexing +students in their first essays in the law by discussing these two forms +of bequests together, we have thought it worth while to treat them +separately, dealing first with legacies, and then with fiduciary +bequests, so that the reader, having first learnt their respective +natures in a separate treatment, may, when his legal education is more +advanced, be able easily to comprehend their treatment in combination. + +4 A legacy may be given not only of things belonging to the testator +or heir, but also of things belonging to a third person, the heir being +bound by the will to buy and deliver them to the legatee, or to give him +their value if the owner is unwilling to sell them. If the thing given +be one of those of which private ownership is impossible, such, for +instance, as the Campus Martius, a basilica, a church, or a thing +devoted to public use, not even its value can be claimed, for the legacy +is void. In saying that a thing belonging to a third person may be given +as a legacy we must be understood to mean that this may be done if the +deceased knew that it belonged to a third person, and not if he was +ignorant of this: for perhaps he would never have given the legacy if +he had known that the thing belonged neither to him nor to the heir, and +there is a rescript of the Emperor Pius to this effect. It is also the +better opinion that the plaintiff, that is the legatee, must prove that +the deceased knew he was giving as a legacy a thing which was not his +own, rather than that the heir must prove the contradictory: for the +general rule of law is that the burden of proof lies on the plaintiff. + +5 If the thing which a testator bequests is in pledge to a creditor, +the heir is obliged to redeem it, subject to the same distinction as has +been drawn with reference to a legacy of a thing not belonging to +the testator; that is to say, the heir is bound to redeem only if the +deceased knew the thing to be in pledge: and the Emperors Severus and +Antoninus have decided this by rescript. If, however, the deceased +expresses his intention that the legatee should redeem the thing +himself, the heir is under no obligation to do it for him. + +6 If a legacy is given of a thing belonging to another person, and the +legatee becomes its owner during the testator's lifetime by purchase, +he can obtain its value from the heir by action on the will: but if he +gives no consideration for it, that is to say, gets it by way of gift or +by some similar title, he cannot sue; for it is settled law that where +a man has already got a thing, giving no consideration in return, he +cannot get its value by a second title of the same kind. Accordingly, if +a man is entitled to claim a thing under each of two distinct wills, it +is material whether he gets the thing, or merely its value, under the +earlier one: for if he gets the thing itself, he cannot sue under +the second will, because he already has the thing without giving any +consideration, whereas he has a good right of action if he has merely +got its value. + +7 A thing which does not yet exist, but will exist, may be validly +bequeathed:--for instance, the produce of such and such land, or the +child of such and such female slave. + +8 If the same thing is given as a legacy to two persons, whether jointly +or severally, and both claim it, each is entitled to only a half; if one +of them does not claim it, because either he does not care for it, or +has died in the testator's lifetime, or for some other reason, the whole +goes to his colegatee. A joint legacy is given in such words as the +following: 'I give and bequeath my slave Stichus to Titius and Seius': a +several legacy thus, 'I give and bequeath my slave Stichus to Titius: I +give and bequeath Stichus to Seius': and even if the testator says 'the +same slave Stichus' the legacy is still a several one. + +9 If land be bequeathed which belongs to some one other than the +testator, and the intended legatee, after purchasing the bare ownership +therein, obtains the usufruct without consideration, and then sues under +the will, Julian says that this action for the land is well grounded, +because in a real action for land a usufruct is regarded merely as a +servitude; but it is part of the duty of the judge to deduct the value +of the usufruct from the sum which he directs to be paid as the value of +the land. + +10 A legacy by which something already belonging to the legatee is given +him is void, for what is his own already cannot become more his own +than it is: and even though he alienates it before the testator's death, +neither it nor its value can be claimed. + +11 If a testator bequeaths something belonging to him, but which he +thought belonged to another person, the legacy is good, for its validity +depends not on what he thought, but on the real facts of the case: and +it is clearly good if he thought it already belonged to the legatee, +because his expressed wish can thus be carried out. + +12 If, after making his will, a testator alienates property which he has +therein given away as a legacy, Celsus is of opinion that the legatee +may still claim it unless the testator's intention was thereby to +revoke the bequest, and there is a rescript of the Emperors Severus +and Antoninus to this effect, as well as another which decides that +if, after making his will, a testator pledges land which he had therein +given as a legacy, the part which has not been alienated can in any case +be claimed, and the alienated part as well if the alienator's intention +was not to revoke the legacy. + +13 If a man bequeaths to his debtor a discharge from his debt, the +legacy is good, and the testator's heir cannot sue either the debtor +himself, or his heir, or any one who occupies the position of heir to +him, and the debtor can even compel the testator's heir to formally +release him. Moreover, a testator can also forbid his heir to claim +payment of a debt before a certain time has elapsed. + +14 Contrariwise, if a debtor leaves his creditor a legacy of what he +owes him, the legacy is void, if it includes no more than the debt, +for the creditor is thus in no way benefited; but if the debtor +unconditionally bequeaths a sum of money which the creditor cannot claim +until a definite date has arrived or a condition has been satisfied, the +legacy is good, because it confers on the creditor a right to earlier +payment. And, even if the day arrives, or the condition is satisfied, +during the testator's lifetime, Papinian decides, and rightly, that +the legacy is nevertheless a good one, because it was good when first +written; for the opinion that a legacy becomes void, because something +happens to deprive it of all material effect, is now rejected. + +15 If a man leaves his wife a legacy of her dowry, the gift is good, +because the legacy is worth more than a mere right of action for the +dowry. If, however, he has never received the dowry which he bequeaths, +the Emperors Severus and Antoninus have decided by rescript that the +legacy is void, provided the general term 'dowry' is used, but good, +if in giving it to the wife a definite sum or thing is specified, or +described generally by reference to the dowry deed. + +16 If a thing bequeathed perishes through no act of the heir, the loss +falls on the legatee: thus if a slave belonging to another person, who +is given in this way, is manumitted through no act of the heir, the +latter is not bound. If, however, the slave belongs to the heir, who +manumits him, Julian says that he is bound, and it is immaterial whether +he knew or not that the slave had been bequeathed away from him. + +17 If a testator gives a legacy of female slaves along with their +offspring, the legatee can claim the latter even if the mothers are +dead, and so again if a legacy is given of ordinary slaves along with +their vicarii or subordinates, the latter can be claimed even if +the former are dead. But if the legacy be of a slave along with his +peculium, and the slave is dead, or has been manumitted or alienated, +the legacy of the peculium is extinguished; and similarly, if the legacy +be of land with everything upon it, or with all its instruments of +tillage, by the alienation of the land the legacy of the instruments of +tillage is extinguished. + +18 If a flock be given as a legacy, which is subsequently reduced to a +single sheep, this single survivor can be claimed; and Julian says that +in a legacy of a flock are comprised sheep which are added to it after +the making of the will, a flock being but one aggregate composed of +distinct members, just as a house is but one aggregate composed of +distinct stones built together. So if the legacy consists of a house, +we hold that pillars or marbles added to it after the making of the will +pass under the bequest. + +20 If a slave's peculium be given as a legacy, the legatee undoubtedly +profits by what is added to it, and is a loser by what is taken from +it, during the testator's lifetime. Whatever the slave acquires in +the interval between the testator's death and the acceptance of the +inheritance belongs, according to Julian, to the legatee, if that +legatee be the slave himself who is manumitted by the will, because a +legacy of this kind vests from the acceptance of the inheritance: but +if the legatee be a stranger, he is not entitled to such acquisitions, +unless they are made by means of the peculium itself. A slave manumitted +by a will is not entitled to his peculium unless it is expressly +bequeathed to him, though, if the master manumits him in his lifetime, +it is enough if it be not expressly taken from him, and to this effect +the Emperors Severus and Antoninus have decided by rescript: as also, +that a legacy of his peculium to a slave does not carry with it the +right to sue for money which he has expended on his master's account, +and that a legacy of a peculium may be inferred from directions in a +will that a slave is to be free so soon as he has made a statement of +his accounts and made up any balance, which may be against him, from his +peculium. + +21 Incorporeal as well as corporeal things can be bequeathed: thus a man +can leave a legacy even of a debt which is owed to him, and the heir can +be compelled to transfer to the legatee his rights of action, unless the +testator has exacted payment in his lifetime, in which case the legacy +is extinguished. Again, such a legacy as the following is good: 'be my +heir bound to repair so and so's house, or to pay so and so's debts.' + +22 If a legacy be a general one, as of a slave or some other thing not +specifically determined, the legatee is entitled to choose what slave, +or what thing, he will have, unless the testator has expressed a +contrary intention. + +23 A legacy of selection, that is, when a testator directs the legatee +to select one from among his slaves, or any other class of things, was +held to be given subject to an implied condition that the legatee should +make the choice in person; so that if he died before doing so the legacy +did not pass to his heir. By our constitution, however, we have made an +improvement in this matter, and allowed the legatee's heir to exercise +the right of selection, although the legatee has not done so personally +in his lifetime; which enactment, through our careful attention to +the subject, contains the further provision, that if there are either +several colegatees to whom a right of selection has been bequeathed, +and who cannot agree in their choice, or several coheirs of a single +legatee, who differ through some wishing to choose this thing and others +that, the question shall be decided by fortune--the legacy not being +extinguished, which many of the jurists in an ungenerous spirit wished +to make the rule--; that is to say, that lots shall be drawn, and he on +whom the lot falls shall have a priority of choice over the rest. + +24 Three persons only can be legatees who have testamentary capacity, +that is, who are legally capable of taking under a will. + +25 Formerly it was not allowed to leave either legacies or fiduciary +bequests to uncertain persons, and even soldiers, as the Emperor Hadrian +decided by rescript, were unable to benefit uncertain persons in this +way. An uncertain person was held to be one of whom the testator had +no certain conception, as the legatee in the following form: 'Whoever +bestows his daughter in marriage on my son, do thou, my heir, give him +such or such land.' So too a legacy left to the first consuls designate +after the writing of the will was held to be given to an uncertain +person, and many others that might be instanced: and so it was held that +freedom could not be bequeathed to an uncertain person, because it was +settled that slaves ought to be enfranchised by name, and an uncertain +person could not be appointed guardian. But a legacy given with a +certain demonstration, that is, to an uncertain member of a certain +class, was valid, for instance, the following: 'Whoever of all my +kindred now alive shall first marry my daughter, do thou, my heir, +give him such and such thing.' It was, however, provided by imperial +constitutions that legacies or fiduciary bequests left to uncertain +persons and paid by mistake could not be recovered back. + +26 An afterborn stranger again could not take a legacy; an afterborn +stranger being one who on his birth will not be a family heir to the +testator; thus a grandson by an emancipated son was held to be an +afterborn stranger to his grandfather. + +27 These parts of the law, however, have not been left without due +alteration, a constitution having been inserted in our Code by which +we have in these respects amended the rules relating to legacies and +fiduciary bequests no less than to inheritances, as will be made clear +by a perusal of the enactment, which, however, still maintains the old +rule that an uncertain person cannot be appointed guardian: for when a +testator is appointing a guardian for his issue, he ought to be quite +clear as to the person and character of the party he selects. + +28 An afterborn stranger could and still can be instituted heir, unless +conceived of a woman who cannot by law be a man's wife. + +29 If a testator makes a mistake in any of the names of the legatee, the +legacy is nevertheless valid provided there is no doubt as to the person +he intended, and the same rule is very properly observed as to heirs as +well as legatees; for names are used only to distinguish persons, and +if the person can be ascertained in other ways a mistake in the name is +immaterial. + +30 Closely akin to this rule is another, namely, that an erroneous +description of the thing bequeathed does not invalidate the bequest; +for instance, if a testator says, 'I give and bequeath Stichus my born +slave,' the legacy is good, if it quite clear who is meant by Stichus, +even though it turn out that he was not born the testator's slave, but +was purchased by him. Similarly, if he describe Stichus as 'the slave +I bought from Seius,' whereas in fact he bought him from some one else, +the legacy is good, if it is clear what slave he intended to give. + +31 Still less is a legacy invalidated from a wrong motive being assigned +by the testator for giving it: if, for instance, he says, 'I give and +bequeath Stichus to Titius, because he looked after my affairs while I +was away,' or 'because I was acquitted on a capital charge through his +undertaking my defence,' the legacy is still good, although in point of +fact Titius never did look after the testator's affairs, or never did, +through his advocacy, procure his acquittal. But the law is different +if the testator expresses his motive in the guise of a condition, as: 'I +give and bequeath such and such land to Titius, if he has looked after +my affairs.' 32 It is questioned whether a legacy to a slave of the +heir is valid. It is clear that such a legacy is void if given +unconditionally, even though the slave ceases to belong to the heir +during the testator's lifetime: for a legacy which would be void if +the testator died immediately after making his will ought not to become +valid by the simple fact of the testator's living longer. Such a legacy, +however, is good if given subject to a condition, the question then +being, whether at the vesting of the legacy the slave has ceased to +belong to the heir. + +33 On the other hand, there is no doubt that even an absolute legacy +to the master of a slave who is instituted heir is good: for, even +supposing that the testator dies immediately after making the will, the +right to the legacy does not necessarily belong to the person who is +heir; for the inheritance and the legacy are separable, and a different +person from the legatee may become heir through the slave; as happens +if, before the slave accepts the inheritance at his master's bidding, +he is conveyed to another person, or is manumitted and thus becomes heir +himself; in both of which cases the legacy is valid. But if he remains +in the same condition, and accepts at his master's bidding, the legacy +is extinguished. + +34 A legacy given before an heir was appointed was formerly void, +because a will derives its operation from the appointment of an heir, +and accordingly such appointment is deemed the beginning and foundation +of the whole testament, and for the same reason a slave could not be +enfranchised before an heir was appointed. Yet even the old lawyers +themselves disapproved of sacrificing the real intentions of the +testator by too strictly following the order of the writing: and we +accordingly have deemed these rules unreasonable, and amended them by +our constitution, which permits a legacy, and much more freedom, which +is always more favoured, to be given before the appointment of an heir, +or in the middle of the appointments, if there are several. + +35 Again, a legacy to take effect after the death of the heir or +legatee, as in the form: 'After my heir's death I give and bequeath,' +was formerly void, as also was one to take effect on the day preceding +the death of the heir or legatee. This too, however, we have corrected, +by making such legacies as valid as they would be were they fiduciary +bequests, lest in this point the latter should be found to have some +superiority over the former. + +36 Formerly too the gift, revocation, and transference of legacies by +way of penalty was void. A penal legacy is one given in order to coerce +the heir into doing or not doing something; for instance, the following: +'If my heir gives his daughter in marriage to Titius,' or, conversely, +'if he does not give her in marriage to Titius, let him pay ten aurei +to Seius'; or again, 'if my heir parts with my slave Stichus,' or, +conversely, 'if he does not part with him, let him pay ten aurei to +Titius.' And so strictly was this rule observed, that it is declared +in a large number of imperial constitutions that even the Emperor will +accept no legacy by which a penalty is imposed on some other person: and +such legacies were void even when given by a soldier's will, in which +as a rule so much trouble was taken to carry out exactly the testator's +wishes. Moreover, Sabinus was of opinion that a penal appointment of a +coheir was void, as exemplified in the following: 'Be Titius my heir: if +Titius gives his daughter in marriage to Seius, be Seius my heir also'; +the ground of the invalidity being that it made no difference in what +way Titius was constrained, whether by a legacy being left away from +him, or by some one being appointed coheir. Of these refinements, +however, we disapproved, and have consequently enacted generally +that bequests, even though given, revoked, or transferred in order to +penalize the heir, shall be treated exactly like other legacies, except +where the event on which the penal legacy is contingent is either +impossible, illegal, or immoral: for such testamentary dispositions as +these the opinion of my times will not permit. + + + + +TITLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES + +Legacies may be revoked either in a later clause of the will or by +codicils, and the revocation may be made either in words contrary +to those of the gift, as the gift thus 'I give and bequeath,' the +revocation thus 'I do not give and bequeath,' or in words not contrary, +that is to say, in any words whatsoever. + +1 A legacy may also be transferred from one person to another, as thus: +'I give and bequeath to Seius the slave Stichus whom I. bequeathed to +Titius,' and this may be done either by a later clause of the will or by +codicils; the result being that the legacy is taken away from Titius and +simultaneously given to Seius. + + + + +TITLE XXII. OF THE LEX FALCIDIA + +We have finally to consider the lex Falcidia, the most recent enactment +limiting the amount which can be given in legacies. The statute of the +Twelve Tables had conferred complete liberty of bequest on testators, by +which they were enabled to give away their whole patrimony in legacies, +that statute having enacted: 'let a man's testamentary disposition of +his property be regarded as valid.' This complete liberty of bequest, +however, it was thought proper to limit in the interest of testators +themselves, for intestacy was becoming common through the refusal of +instituted heirs to accept inheritances from which they received +little or no advantage at all. The lex Furia and the lex Voconia +were enactments designed to remedy the evil, but as both were found +inadequate to the purpose, the lex Falcidia was finally passed, +providing that no testator should be allowed to dispose of more than +three-quarters of his property in legacies, or in other words, that +whether there was a single heir instituted, or two or more, he or they +should always be entitled to at least a quarter of the inheritance. + +1 If two heirs, say Titius and Seius, are instituted, and Titius's share +of the inheritance is either wholly exhausted in legacies specifically +charged thereon, or burdened beyond the limit fixed by the statute, +while no legacies at all are charged on Seius, or at any rate legacies +which exhaust it only to the extent of one half or less, the question +arose whether, as Seius has at least a quarter of the whole inheritance, +Titius was or was not entitled to retain anything out of the legacies +which had been charged upon him: and it was settled that he could keep +an entire fourth of his share of the inheritance; for the calculation +of the lex Falcidia is to be applied separately to the share of each of +several heirs in the inheritance. + +2 The amount of the property upon which the calculation is brought to +bear is its amount at the moment of the testator's decease. Thus, to +illustrate by an example, a testator who is worth a hundred aurei at his +decease gives the whole hundred away in legacies: here, if before the +heir accepts, the inheritance is so much augmented through slaves who +belong to it, or by births of children from such of them as are females, +or by the young of cattle that, even after paying away a hundred aurei +in legacies, the heir will still have a clear fourth of the inheritance, +the legatee's position is in no way improved, but a quarter of the +sum given in legacies may still be deducted for himself by the heir. +Conversely, if only seventyfive aurei are given in legacies, and before +acceptance the inheritance is so much diminished in value, say by +fire, shipwreck, or death of slaves, that no more or even less than +seventyfive aurei are left, the legatees can claim payment of their +legacies in full. In this latter case, however, the heir is not +prejudiced, for he is quite free to refused the inheritance: +consequently, the legatees must come to terms with him, and content +themselves with a portion of their legacies, lest they lose all through +no one's taking under the will. + +3 When the calculation of the lex Falcidia is made, the testator's debts +and funeral expenses are first deducted, and the value of slaves whom he +has manumitted in the will or directed to be manumitted is not reckoned +as part of the inheritance; the residue is then divided so as to leave +the heirs a clear fourth, the other three quarters being distributed +among the legatees in proportion to the amount of the legacies given +them respectively in the will. Thus, if we suppose four hundred aurei +to have been given in legacies, and the value of the inheritance, out +of which they are to be paid, to be exactly that sum, each legatee must +have his legacy abated by onefourth; if three hundred and fifty have +been given in legacies, each legacy will be diminished by one-eighth; if +five hundred, first a fifth, then a fourth, must be deducted: for +when the amount given in legacies actually exceeds the sum of the +inheritance, there must be struck off first the excess, and then the +share which the heir is entitled to retain. + + + + +TITLE XXIII. OF TRUST INHERITANCES + +We now proceed to fiduciary bequests or trusts; and let us begin with +trust inheritances. + +1 Legacies or inheritances given by trust had originally no binding +legal force, because no one could be compelled against his will to do +what he was merely asked to do. As there were certain classes of persons +to whom testators were unable to leave inheritances or legacies, when +they wished to effect these objects they used to trust to the good faith +of some one who had this kind of testamentary capacity, and whom +they asked to give the inheritance, or the legacy, to the intended +beneficiary; hence the name 'trusts,' because they were not enforced +by legal obligation, but only by the transferor's sense of honesty. +Subsequently the Emperor Augustus, either out of regard for various +favourites of his own, or because the request was said to have been made +in the name of the Emperor's safety, or moved thereto by individual +and glaring cases of perfidy, commanded the consuls in certain cases to +enforce the duty by their authority. And this being deemed equitable, +and being approved by the people, there was gradually developed a new +and permanent jurisdiction, and trusts became so popular that soon a +special praetor was appointed to hear suits relating to them, who was +called the trust praetor. + +2 The first requisite is an heir directly instituted, in trust to +transfer the inheritance to another, for the will is void without an +instituted heir in the first instance. Accordingly, when a testator has +written: 'Lucius Titius, be thou my heir,' he may add: 'I request you, +Lucius Titius, as soon as you can accept my inheritance, to convey and +transfer it to Gaius Seius'; or he can request him to transfer a part. +So a trust may be either absolute or conditional, and to be performed +either immediately or on a specified future day. + +3 After the transfer of the inheritance the transferor continues heir, +the transferee being sometimes regarded as quasi-heir, sometimes as +quasi-legatee. + +4 But during the reign of Nero, in the consulate of Trebellius Maximus +and Annaeus Seneca, a senatusconsult was passed providing that, when +an inheritance is transferred in pursuance of a trust, all the actions +which the civil law allows to be brought by or against the heir shall be +maintainable by and against the transferee: and after this enactment the +praetor used to give indirect or fictitious actions to and against the +transferee as quasiheir. + +5 However, as the instituted heirs, when (as so often was the case) +they were requested to transfer the whole or nearly the whole of an +inheritance, declined to accept for what was no benefit, or at most a +very slight benefit, to themselves, and this caused a failure of the +trusts, afterwards, in the time of the Emperor Vespasian, and during the +consulate of Pegasus and Pusio, the senate decreed that an heir who +was requested to transfer the inheritance should have the same right +to retain a fourth thereof as the lex Falcidia gives to an heir charged +with the payment of legacies, and gave a similar right of retaining the +fourth of any specific thing left in trust. After the passing of this +senatusconsult the heir, wherever it came into operation, was sole +administrator, and the transferee of the residue was in the position of +a partiary legatee, that is, of a legatee of a certain specified portion +of the estate under the kind of bequest called participation, so that +the stipulations which had been usual between an heir and a partiary +legatee were now entered into by the heir and transferee, in order to +secure a rateable division of the gains and losses arising out of the +inheritance. + +6 Accordingly, after this, if no more than threefourths of the +inheritance was in trust to be transferred, then the SC. Trebellianum +governed the transfer, and both were liable to be sued for the debts +of the inheritance in rateable portions, the heir by civil law, +the transferee, as quasiheir, by that enactment. But if more than +threefourths, or even the whole was left in trust to be transferred, the +SC. Pegasianum came into operation, and when once the heir had accepted, +of course voluntarily, he was the sole administrator whether he retained +onefourth or declined to retain it: but if he did, he entered into +stipulations with the transferee similar to those usual between the heir +and a partiary legatee, while if he did not, but transferred the whole +inheritance, he covenanted with him as quasi-purchaser. If an instituted +heir refuse to accept an inheritance from a suspicion that the +liabilities exceed the assets, it is provided by the SC. Pegasianum +that, on the petition of the person to whom he is requested to transfer, +he shall be ordered by the praetor to accept and transfer it, whereupon +the transferee shall be as capable of suing and being sued as the +transferee under the SC. Trebellianum. In this case no stipulations are +necessary, because by a concurrent operation of the two senatusconsults +both the transferor is protected, and all actions relating to the +inheritance pass to and against the transferee. + +7 As, however, the covenants which had become necessary through the SC. +Pegasianum were disliked even by the older lawyers, and are in certain +cases considered injurious by the eminent jurist Papinian, and it being +our desire that our statute book should be clear and simple rather than +complicated, we have, after placing these two senatusconsults side by +side and examining their points of resemblance and difference, resolved +to repeal the SC. Pegasianum, as the later enactment, and to give +exclusive authority to the SC. Trebellianum, under which in future +all trust inheritances are to be transferred, whether the testator has +freely given his heir a fourth of the property, or more or less, or even +nothing at all: provided always, that when the heir has either nothing +or less than a fourth, it shall be lawful for him, under our authority +expressed in this statute, to retain a fourth, or to recover it by +action if he has already paid it over, the heir and the transferee being +capable both of suing and being sued in proportion to their shares in +the inheritance, after the analogy of the SC. Trebellianum; and provided +also, that if the heir voluntarily transfers the whole inheritance, the +transferee shall be able to sue and be sued on all actions relating to +the inheritance whatsoever. Moreover, we have transferred to the SC. +Trebellianum the leading provision of the SC. Pegasianum, whereby it was +enacted that when an instituted heir refused to accept an inheritance +offered to him, he could be compelled to accept and transfer the whole +inheritance if the intended transferee so desired, and that all actions +should pass to and against the latter: so that it is under the SC. +Trebellianum alone that the heir, if unwilling to accept, is now obliged +to do so, if the intended transferee desire the inheritance, though to +him personally no loss or profit can accrue under the transaction. + +8 It makes no difference whether it is a sole or part heir who is under +a trust to another, or whether what he is requested to transfer is the +whole or only a part of that to which he is heir; for we direct that the +same rules shall be applied in the case of a part being transferred as +we have said are observed in the transference of a whole inheritance. + +9 If the request addressed to the heir is to transfer the inheritance +after deducting or reserving some specific thing which is equal in value +to a fourth part thereof, such as land or anything else, the conveyance +will be made under the SC. Trebellianum, exactly as if he had been +asked after retaining a fourth part of the inheritance to transfer the +residue. There is, however, some difference between the two cases; for +in the first, where the inheritance is transferred after deducting or +reserving some specific thing, the senatusconsult has the effect of +making the transferee the only person who can sue or be sued in respect +of the inheritance, and the part retained by the heir is free from all +encumbrances, exactly as if he had received it under a legacy; whereas +in the second, where the heir, after retaining a fourth part of the +inheritance, transfers the rest as requested, the actions are divided, +the transferee being able to sue and be sued in respect of threefourths +of the inheritance, and the heir in respect of the rest. Moreover, if +the heir is requested to transfer the inheritance after deducting or +reserving only a single specific thing, which, however, in value is +equivalent to the greater part of the inheritance, the transferee is +still the only person who can sue and be sued, so that he ought well +to weigh whether it is worth his while to take it: and the case is +precisely the same, whether what the heir is directed to deduct or +reserve before transferring is two or more specific things, or a +definite sum which in fact is equivalent to a fourth or even the greater +part of the inheritance. What we have said of a sole heir is equally +true of one who is instituted only to a part. + +10 Moreover, a man about to die intestate can charge the person to whom +he knows his property will go by either the civil or praetorian law to +transfer to some one else either his whole inheritance, or a part of it, +or some specific thing, such as land, a slave, or money: but legacies +have no validity unless given by will. + +11 The transferee may himself be charged by the deceased with a trust +to transfer to some other person either the whole or a part of what he +receives, or even something different. + +12 As has been already observed, trusts in their origin depended solely +on the good faith of the heir, from which early history they derived +both their name and their character: and it was for that reason that the +Emperor Augustus made them legally binding obligations. And we, in +our desire to surpass that prince, have recently made a constitution, +suggested by a matter brought before us by the eminent Tribonian, +quaestor of our sacred palace, by which it is enacted, that if a +testator charges his heir with a trust to transfer the whole inheritance +or some specific thing, and the trust cannot be proved by writing or +by the evidence of five witnesses--five being, as is known, the number +required by law for the proof of oral trusts--through there having been +fewer witnesses than five, or even none at all, and if the heir, whether +it be his own son or some one else whom the testator has chosen to +trust, and by whom he desired the transfer to be made, perfidiously +refuses to execute the trust, and in fact denies that he was ever +charged with it, the alleged beneficiary, having previously sworn to his +own good faith, may put the heir upon his oath: whereupon the heir may +be compelled to swear that no trust was ever charged upon him, or, in +default, to transfer the inheritance or the specific thing, as the case +may be, in order that the last wishes of the testator, the fulfilment +of which he has left to the honour of his heir, may not be defeated. We +have also prescribed the same procedure where the person charged with a +trust is a legatee or already himself a transferee under a prior trust. +Finally, if the person charged admits the trust, but tries to shelter +himself behind legal technicalities, he may most certainly be compelled +to perform his obligation. + + + + +TITLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS + +Single things can be left in trust as well as inheritances; land, for +instance, slaves, clothing, gold, silver, and coined money; and the +trust may be imposed either on an heir or on a legatee, although a +legatee cannot be charged with a legacy. + +1 Not only the testator's property, but that of an heir, or legatee, or +person already benefited by a trust, or any one else may be given by +a trust. Thus a legatee, or a person in whose favour the testator has +already created a trust, may be asked to transfer either a thing left +to him, or any other thing belonging to himself or a stranger, provided +always that he is not charged with a trust to transfer more than he +takes by the will, for in respect of such excess the trust would be +void. When a person is charged by a trust to transfer a thing belonging +to some one else, he must either purchase and deliver it, or pay its +value. + +2 Liberty can be left to a slave by a trust charging an heir, legatee, +or other person already benefited by a trust of the testator's, with +his manumission, and it makes no difference whether the slave is the +property of the testator, of the heir, of the legatee or of a stranger: +for a stranger's slave must be purchased and manumitted; and on his +master's refusal to sell (which refusal is allowable only if the master +has taken nothing under the will) the trust to enfranchise the slave is +not extinguished, as though its execution had become impossible, but its +execution is merely postponed; because it may become possible to free +him at some future time, whenever an opportunity of purchasing him +presents itself. A trust of manumission makes the slave the freedman, +not of the testator, though he may have been his owner, but of the +manumitter, whereas a direct bequest of liberty makes a slave the +freedman of the testator, whence too he is called 'orcinus.' But a +direct bequest of liberty can be made only to a slave who belongs to the +testator both at the time of making his will and at that of his decease; +and by a direct bequest of liberty is to be understood the case where +the testator desires him to become free in virtue, as it were, of his +own testament alone, and so does not ask some one else to manumit him. + +3 The words most commonly used to create a trust are I beg, I. request, +I wish, I commission, I trust to your good faith; and they are just as +binding when used separately as when united. + + + + +TITLE XXV. OF CODICILS + +It is certain that codicils were not in use before the time of Augustus, +for Lucius Lentulus, who was also the originator of trusts, was the +first to introduce them, in the following manner. Being on the point of +death in Africa, he executed codicils, confirmed by his will, by which +he begged Augustus to do something for him as a trust; and on the +Emperor's fulfilling his wishes, other persons followed the precedent +and discharged trusts created in this manner, and the daughter of +Lentulus paid legacies which could not have been legally claimed from +her. It is said that Augustus called a council of certain jurists, among +them Trebatius, who at that time enjoyed the highest reputation, and +asked them whether the new usage could be sanctioned, or did not rather +run counter to the received principles of law, and that Trebatius +recommended their admission, remarking 'how convenient and even +necessary the practice was to citizens,' owing to the length of the +journeys which were taken in those early days, and upon which a man +might often be able to make codicils when he could not make a will. +And subsequently, after codicils had been made by Labeo, nobody doubted +their complete validity. + +1 Not only can codicils be made after a will, but a man dying intestate +can create trusts by codicils, though Papinian says that codicils +executed before a will are invalid unless confirmed by a later express +declaration that they shall be binding. But a rescript of the Emperors +Severus and Antoninus decides that the performance of a trust imposed +by codicils written before a will may in any case be demanded, if it +appears that the testator had not abandoned the intention expressed in +them. + +2 An inheritance can neither be given nor taken away by codicils, nor, +accordingly, can a child be disinherited in this way: for, if it were +otherwise, the law of wills and of codicils would be confounded. By this +it is meant that an inheritance cannot directly be given or taken away +by codicils; for indirectly, by means of a trust, one can very well +be given in this manner. Nor again can a condition be imposed on an +instituted heir, or a direct substitution be effected, by codicils. + +3 A man can make any number of codicils, and no solemnities are required +for their execution. + + + + +BOOK III. + + + + +TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY + +A man is said to die intestate who either has made no will at all, or +has made one which is invalid, or if one which has been duly executed +has been subsequently revoked, or rescinded, or finally, if no one +accepts as heir under the testament. + +1 The inheritances of intestate persons go first, by the statute of the +Twelve Tables, to family heirs; + +2 and family heirs, as we said above, are those who were in the power +of the deceased at the time of his death, such as a son or daughter, a +grandchild by a son, or a greatgrandchild by such grandchild if a male, +and this whether the relationship be natural or adoptive. Among them +must also be reckoned children who, though not born in lawful wedlock, +have been inscribed members of the curia according to the tenor of the +imperial constitutions relating to them, and thus acquire the rights of +family heirs, or who come within the terms of our constitutions by which +we have enacted that, if any one shall cohabit with a woman whom he +might have lawfully married, but for whom he did not at first feel +marital affection, and shall after begetting children by her begin to +feel such affection and formally marry her, and then have by her sons or +daughters, not only shall those be lawful children and in their father's +power who were born after the settlement of the dowry, but also +those born before, to whom in reality the later born ones owed their +legitimacy; and we have provided that this rule shall hold even though +no children are born after the execution of the dowry deed, or if, +having been born, they are dead. It is to be observed, however, that a +grandchild or greatgrandchild is not a family heir, unless the person in +the preceding degree has ceased to be in the power of the parent, either +through having died, or by some other means, such as emancipation; for +if at the time of a man's decease a son is in his power, a grandson by +that son cannot be a family heir, and the case is exactly the same with +more remote descendants. Children too who are born after the ancestor's +death, and who would have been in his power had they been born during +his lifetime, are family heirs. + +3 Family heirs succeed even though ignorant of their title, and they +can take upon an intestacy even though insane, because whenever the law +vests property in a person, even when he is ignorant of his title, it +equally vests it in him if insane. Thus, immediately on the parent's +death, the ownership is as it were continued without any break, so that +pupils who are family heirs do not require their guardian's sanction in +order to succeed, for inheritances go to such heirs even though ignorant +of their title; and similarly an insane family heir does not require his +curator's consent in order to succeed, but takes by operation of law. + +4 Sometimes, however, a family heir succeeds in this way to his parent, +even though not in the latter's power at the time of his decease, as +where a person returns from captivity after his father's death, this +being the effect of the law of postliminium. + +5 And sometimes conversely a man is not a family heir although in the +power of the deceased at the time of his death, as where the latter +after his death is adjudged to have been guilty of treason, and his +memory is thereby branded with infamy: such a person is unable to have a +family heir, for his property is confiscated to the treasury, though one +who would otherwise have succeeded him may be said to have in law been a +family heir, and ceased to be such. + +6 Where there is a son or daughter, and a grandchild by another son, +these are called together to the inheritance, nor does the nearer in +degree exclude the more remote, for it seems just that grandchildren +should represent their father and take his place in the succession. +Similarly a grandchild by a son, and a greatgrandchild by a grandson +are called to the inheritance together. And as it was thought just that +grandchildren and greatgrandchildren should represent their father, it +seemed consistent that the inheritance should be divided by the number +of stems, and not by the number of individuals, so that a son should +take onehalf, and grandchildren by another son the other: or, if two +sons left children, that a single grandchild, or two grandchildren by +one son, should take onehalf, and three or four grandchildren by the +other son the other. + +7 In ascertaining whether, in any particular case, so and so is a family +heir, one ought to regard only that moment of time at which it first was +certain that the deceased died intestate, including hereunder the +case of no one's accepting under the will. For instance, if a son be +disinherited and a stranger instituted heir, and the son die after the +decease of his father, but before it is certain that the heir instituted +in the will either will not or cannot take the inheritance, a grandson +will take as family heir to his grandfather, because he is the only +descendant in existence when first it is certain that the ancestor died +intestate; and of this there can be no doubt. + +8 A grandson born after, though conceived before, his grandfather's +death, whose father dies in the interval between the grandfather's +decease and desertion of the latter's will through failure of the +instituted heir to take, is family heir to his grandfather; though it is +obvious that if (other circumstances remaining the same) he is conceived +as well as born after the grandfather's decease, he is no family heir, +because he was never connected with his grandfather by any tie of +relationship; exactly as a person adopted by an emancipated son is +not among the children of, and therefore cannot be family heir to, the +latter's father. And such persons, not being children in relation to +the inheritance, cannot apply either for possession of the goods of the +deceased as next of kin. So much for family heirs. + +9 As to emancipated children, they have, by the civil law, no rights to +succeed to an intestate; for having ceased to be in the power of their +parent, they are not family heirs, nor are they called by any other +title in the statute of the Twelve Tables. The praetor, however, +following natural equity, gives them possession of the goods of the +deceased merely as children, exactly as if they had been in his power +at the time of his death, and this whether they stand alone or whether +there are family heirs as well. Consequently, if a man die leaving two +children, one emancipated, and the other in his power at the time of +his decease, the latter is sole heir by the civil law, as being the +only family heir; but through the former's being admitted to part of the +inheritance by the indulgence of the praetor, the family heir becomes +heir to part of the inheritance only. + +10 Emancipated children, however, who have given themselves in adoption +are not thus admitted, under the title of children, to share the +property of their natural father, if at the time of his decease they are +in their adoptive family; though it is otherwise if they are emancipated +during his lifetime by their adoptive father, for then they are admitted +as if they had been emancipated by him and had never been in an adoptive +family, while, conversely, as regards their adoptive father, they are +henceforth regarded as strangers. If, however, they are emancipated +by the adoptive after the death of the natural father, as regards the +former they are strangers all the same, and yet do not acquire the rank +of children as regards succession to the property of the latter; the +reason of this rule being the injustice of putting it within the power +of an adoptive father to determine to whom the property of the natural +father shall belong, whether to his children or to his agnates. + +11 Adoptive are thus not so well off as natural children in respect of +rights of succession: for by the indulgence of the praetor the latter +retain their rank as children even after emancipation, although they +lose it by the civil law; while the former, if emancipated, are not +assisted even by the praetor. And there is nothing wrong in their +being thus differently treated, because civil changes can affect rights +annexed to a civil title, but not rights annexed to a natural title, +and natural descendants, though on emancipation they cease to be family +heirs, cannot cease to be children or grandchildren; whereas on +the other hand adoptive children are regarded as strangers after +emancipation, because they lose the title and name of son or daughter, +which they have acquired by a civil change, namely adoption, by another +civil change, namely emancipation. + +12 And the rule is the same in the possession of goods against the will +which the praetor promises to children who are passed over in their +parent's testament, that is to say, are neither instituted nor duly +disinherited; for the praetor calls to this possession children who were +in their parent's power at the time of his decease, or emancipated, but +excludes those who at that time were in an adoptive family: still less +does he here admit adoptive children emancipated by their adoptive +father, for by emancipation they cease entirely to be children of his. + +13 We should observe, however, that though children who are in an +adoptive family, or who are emancipated by their adoptive after the +decease of their natural father, are not admitted on the death of the +latter intestate by that part of the edict by which children are called +to the possession of goods, they are called by another part, namely that +which admits the cognates of the deceased, who, however, come in only +if there are no family heirs, emancipated children, or agnates to take +before them: for the praetor prefers children, whether family heirs +or emancipated, to all other claimants, ranking in the second degree +statutory successors, and in the third cognates, or next of kin. + +14 All these rules, however, which to our predecessors were sufficient, +have received some emendation by the constitution which we have enacted +relative to persons who have been given in adoption to others by +their natural fathers; for we found cases in which sons by entering +an adoptive family forfeited their right of succeeding their natural +parents, and then, the tie of adoption being easily broken by +emancipation, lost all title to succeed their adoptive parents as well. +We have corrected this, in our usual manner, by a constitution which +enacts that, when a natural father gives his son in adoption to another +person, the son's rights shall remain the same in every particular as +if he had continued in the power of his natural father, and the adoption +had never taken place, except only that he shall be able to succeed his +adoptive father should he die intestate. If, however, the latter makes +a will, the son cannot obtain any part of the inheritance either by the +civil or by the praetorian law, that is to say, either by impeaching the +will as unduteous or by applying for possession against the will; for, +being related by no tie of blood, the adoptive father is not bound +either to institute him heir or to disinherit him, even though he has +been adopted, in accordance with the SC. Afinianum, from among three +brothers; for, even under these circumstances, he is not entitled to a +fourth of what he might have taken on intestacy, nor has he any action +for its recovery. We have, however, by our constitution excepted persons +adopted by natural ascendants, for between them and their adopters there +is the natural tie of blood as well as the civil tie of adoption, and +therefore in this case we have preserved the older law, as also in that +of an independent person giving himself in adrogation: all of which +enactment can be gathered in its special details from the tenor of the +aforesaid constitution. + +15 By the ancient law too, which favoured the descent through males, +those grandchildren only were called as family heirs, and preferred to +agnates, who were related to the grandfather in this way: grandchildren +by daughters, and greatgrandchildren by granddaughters, whom it regarded +only as cognates, being called after the agnates in succession to +their maternal grandfather or greatgrandfather, or their grandmother or +greatgrandmother, whether paternal or maternal. But the Emperors would +not allow so unnatural a wrong to endure without sufficient correction, +and accordingly, as people are, and are called, grandchildren and +greatgrandchildren of a person whether they trace their descent through +males or through females, they placed them altogether in the same rank +and order of succession. In order, however, to bestow some privilege on +those who had in their favour the provisions of the ancient law as +well as natural right, they determined that grandchildren, +greatgrandchildren, and others who traced their descent through a female +should have their portion of the inheritance diminished by receiving +less by onethird than their mother or grandmother would have taken, +or than their father or grandfather, paternal or maternal, when the +deceased, whose inheritance was in question, was a woman; and they +excluded the agnates, if such descendants claimed the inheritance, even +though they stood alone. Thus, exactly as the statute of the Twelve +Tables calls the grandchildren and greatgrandchildren to represent their +deceased father in the succession to their grandfather, so the imperial +legislation substitutes them for their deceased mother or grandmother, +subject to the aforesaid deduction of a third part of the share which +she personally would have taken. + +16 As, however, there was still some question as to the relative rights +of such grandchildren and of the agnates, who on the authority of a +certain constitution claimed a fourth part of the deceased's estate, we +have repealed the said enactment, and not permitted its insertion in +our Code from that of Theodosius. By the constitution which we have +published, and by which we have altogether deprived it of validity, +we have provided that in case of the survival of grandchildren by +a daughter, greatgrandchildren by a granddaughter, or more remote +descendants related through a female, the agnates shall have no claim to +any part of the estate of the deceased, that collaterals may no longer +be preferred to lineal descendants; which constitution we hereby reenact +with all its force from the date originally determined: provided always, +as we direct, that the inheritance shall be divided between sons and +grandchildren by a daughter, or between all the grandchildren, and other +more remote descendants, according to stocks, and not by counting heads, +on the principle observed by the ancient law in dividing an inheritance +between sons and grandchildren by a son, the issue obtaining without +any diminution the portion which would have belonged to their mother or +father, grandmother or grandfather: so that if, for instance, there be +one or two children by one stock, and three or four by another, the +one or two, and the three or four, shall together take respectively one +moiety of the inheritance. + + + + +TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES + +If there is no family heir, nor any of those persons called to the +succession along with family heirs by the praetor or the imperial +legislation, to take the inheritance in any way, it devolves, by the +statute of the Twelve Tables, on the nearest agnate. + +1 Agnates, as we have observed in the first book, are those cognates +who trace their relationship through males, or, in other words, who are +cognate through their respective fathers. Thus, brothers by the same +father are agnates, whether by the same mother or not, and are called +'consanguinei'; an uncle is agnate to his brother's son, and vice +versa; and the children of brothers by the same father, who are called +'consobrini, are one another's agnates, so that it is easy to arrive at +various degrees of agnation. Children who are born after their father's +decease acquire the rights of kinship exactly as if they had been born +before that event. But the law does not give the inheritance to all the +agnates, but only to those who were nearest in degree at the moment when +it was first certain that the deceased died intestate. + +2 The relation of agnation can also be established by adoption, for +instance, between a man's own sons and those whom he has adopted, all +of whom are properly called consanguinei in relation to one another. +So, too, if your brother, or your paternal uncle, or even a more remote +agnate, adopts any one, that person undoubtedly becomes one of your +agnates. + +3 Male agnates have reciprocal rights of succession, however remote the +degree of relationship: but the rule as regards females, on the other +hand, was that they could not succeed as agnates to any one more +remotely related to them than a brother, while they themselves could +be succeeded by their male agnates, however distant the connexion: thus +you, if a male, could take the inheritance of a daughter either of your +brother or of your paternal uncle, or of your paternal aunt, but she +could not take yours; the reason of this distinction being the seeming +expediency of successions devolving as much as possible on males. But as +it was most unjust that such females should be as completely excluded +as if they were strangers, the praetor admits them to the possession of +goods promised in that part of the edict in which mere natural kinship +is recognised as a title to succession, under which they take provided +there is no agnate, or other cognate of a nearer degree of relationship. +Now these distinctions were in no way due to the statute of the Twelve +Tables, which, with the simplicity proper to all legislation, conferred +reciprocal rights of succession on all agnates alike, whether males +or females, and excluded no degree by reason merely of its remoteness, +after the analogy of family heirs; but it was introduced by the jurists +who came between the Twelve Tables and the imperial legislation, and who +with their legal subtleties and refinements excluded females other +than sisters altogether from agnatic succession. And no other scheme of +succession was in those times heard of, until the praetors, by gradually +mitigating to the best of their ability the harshness of the civil law, +or by filling up voids in the old system, provided through their edicts +a new one. Mere cognation was thus in its various degrees recognised +as a title to succession, and the praetors gave relief to such females +through the possession of goods, which they promised to them in that +part of the edict by which cognates are called to the succession. We, +however, have followed the Twelve Tables in this department of law, +and adhered to their principles: and, while we commend the praetors for +their sense of equity, we cannot hold that their remedy was adequate; +for when the degree of natural relationship was the same, and when the +civil title of agnation was conferred by the older law on males and +females alike, why should males be allowed to succeed all their agnates, +and women (except sisters) be debarred from succeeding any? Accordingly, +we have restored the old rules in their integrity, and made the law on +this subject an exact copy of the Twelve Tables, by enacting, in our +constitution, that all 'statutory' successors, that is, persons tracing +their descent from the deceased through males, shall be called alike +to the succession as agnates on an intestacy, whether they be males or +females, according to their proximity of degree; and that no females +shall be excluded on the pretence that none but sisters have the right +of succeeding by the title of kinship. + +4 By an addition to the same enactment we have deemed it right to +transfer one, though only one, degree of cognates into the ranks of +those who succeed by a statutory title, in order that not only the +children of a brother may be called, as we have just explained, to the +succession of their paternal uncle, but that the children of a sister +too, even though only of the half blood on either side (but not her more +remote descendants), may share with the former the inheritance of their +uncle; so that, on the decease of a man who is paternal uncle to his +brother's children, and maternal uncle to those of his sister, the +nephews and nieces on either side will now succeed him alike, provided, +of course, that the brother and sister do not survive, exactly as if +they all traced their relationship through males, and thus all had a +statutory title. But if the deceased leaves brothers and sisters who +accept the inheritance, the remoter degrees are altogether excluded, +the division in this case being made individually, that is to say, by +counting heads, not stocks. + +5 If there are several degrees of agnates, the statute of the Twelve +Tables clearly calls only the nearest, so that if, for instance, the +deceased leaves a brother, and a nephew by another brother deceased, or +a paternal uncle, the brother is preferred. And although that statute, +in speaking of the nearest agnate, uses the singular number, there is +no doubt that if there are several of the same degree they are all +admitted: for though properly one can speak of 'the nearest degree' +only when there are several, yet it is certain that even though all the +agnates are in the same degree the inheritance belongs to them. + +6 If a man dies without having made a will at all, the agnate who takes +is the one who was nearest at the time of the death of the deceased. But +when a man dies, having made a will, the agnate who takes (if one is +to take at all) is the one who is nearest when first it becomes certain +that no one will accept the inheritance under the testament; for until +that moment the deceased cannot properly be said to have died intestate +at all, and this period of uncertainty is sometimes a long one, so that +it not unfrequently happens that through the death, during it, of a +nearer agnate, another becomes nearest who was not so at the death of +the testator. + +7 In agnatic succession the established rule was that the right of +accepting the inheritance could not pass from a nearer to a more remote +degree; in other words, that if the nearest agnate, who, as we have +described, is called to the inheritance, either refuses it or dies +before acceptance, the agnates of the next grade have no claim to +admittance under the Twelve Tables. This hard rule again the praetors +did not leave entirely without correction, though their remedy, which +consisted in the admission of such persons, since they were excluded +from the rights of agnation, in the rank of cognates, was inadequate. +But we, in our desire to have the law as complete as possible, have +enacted in the constitution which in our clemency we have issued +respecting the rights of patrons, that in agnatic succession the +transference of the rights to accept from a nearer to a remoter degree +shall not be refused: for it was most absurd that agnates should +be denied a privilege which the praetor had conferred on cognates, +especially as the burden of guardianship fell on the second degree of +agnates if there was a failure of the first, the principle which we have +now sanctioned being admitted so far as it imposed burdens, but rejected +so far as it conferred a boon. + +8 To statutory succession the ascendant too is none the less called who +emancipates a child, grandchild, or remoter descendant under a +fiduciary agreement, which by our constitution is now implied in every +emancipation. Among the ancients the rule was different, for the parent +acquired no rights of succession unless he had entered into a special +agreement of trust to that effect prior to the emancipation. + + + + +TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM + +So strict were the rules of the statute of the Twelve Tables in +preferring the issue of males, and excluding those who traced their +relationship through females, that they did not confer reciprocal rights +of inheritance even on a mother and her children, though the praetors +called them to succeed one another as next of kin by promising them the +possession of goods in the class of cognates. + +1 But this narrowness of the law was afterwards amended, the Emperor +Claudius being the first to confer on a mother, as a consolation for the +loss of her children, a statutory right to their inheritance, + +2 and afterwards, very full provisions were made by the SC. +Tertullianum, enacted in the time of the Emperor Hadrian, and relating +to the melancholy succession of children by their mothers, though not +by their grandmothers, whereby it was provided that a freeborn woman who +had three or a freedwoman who had four children should be entitled to +succeed to the goods of her children who died intestate, even though +herself under paternal power; though, in this latter case, she cannot +accept the inheritance except by the direction of the person in whose +power she is. + +3 Children of the deceased who are or who rank as family heirs, whether +in the first or any other degree, are preferred to the mother, and even +where the deceased is a woman her children by imperial constitutions +have a prior claim to the mother, that is, to their own grandmother. +Again, the father of the deceased is preferred to the mother, but not +so the paternal grandfather or greatgrandfather, at least when it is +between them only that the question arises who is entitled. A brother by +the same father excluded the mother from the succession to both sons +and daughters, but a sister by the same father came in equally with the +mother; and where there were both a brother and a sister by the same +father, as well as a mother who was entitled by number of children, +the brother excluded the mother, and divided the inheritance in equal +moieties with the sister. + +4 By a constitution, however, which we have placed in the Code made +illustrious by our name, we have deemed it right to afford relief to the +mother, in consideration of natural justice, of the pains of childbirth, +and of the danger and even death which mothers often incur in this +manner; for which reason we have judged it a sin that they should be +prejudiced by a circumstance which is entirely fortuitous. For if a +freeborn woman had not borne three, or a freedwoman four children, she +was undeservedly defrauded of the succession to her own offspring; +and yet what fault had she committed in bearing few rather than many +children? Accordingly, we have conferred on mothers a full statutory +right of succession to their children, and even if they have had no +other child than the one in question deceased. + +5 The earlier constitutions, in their review of statutory rights of +succession, were in some points favourable, in others unfavourable, +to mothers; thus in some cases they did not call them to the whole +inheritance of their children, but deducted a third in favour of certain +other persons with a statutory title, while in others they did exactly +the opposite. We, however, have determined to follow a straightforward +and simple path, and, preferring the mother to all other persons with a +statutory title, to give her the entire succession of her sons, without +deduction in favour of any other persons except a brother or sister, +whether by the same father as the deceased, or possessing rights of +cognation only; so that, as we have preferred the mother to all with +a statutory title, so we call to the inheritance, along with her, all +brothers and sisters of the deceased, whether statutorily entitled or +not: provided that, if the only surviving relatives of the deceased +are sisters, agnatic or cognatic, and a mother, the latter shall have +onehalf, and all the sisters together the other half of the inheritance; +if a mother and a brother or brothers, with or without sisters agnatic +or cognatic, the inheritance shall be divided among mother, brothers, +and sisters in equal portions. + +6 But, while we are legislating for mothers, we ought also to bestow +some thought on their offspring; and accordingly mothers should +observe that if they do not apply within a year for guardians for their +children, either originally or in lieu of those who have been removed or +excused, they will forfeit their title to succeed such children if they +die under the age of puberty. + +7 A mother can succeed her child under the SC. Tertullianum even though +the child be illegitimate. + + + + +TITLE IV. OF THE SENATUSCONSULTUM ORFITIANUM + +Conversely, children were admitted to succeed their mother on her death +intestate by the SC. Orfitianum, passed in the time of the Emperor +Marcus, when Orfitus and Rufus were consuls: by which a statutory right +of succession was conferred on both sons and daughters, even though in +the power of another, in preference to their deceased mother's brothers +and sisters and other agnates. + +1 As, however, grandsons were not called by this senatusconsult with a +statutory title to the succession of their grandmothers, + +2 this was subsequently amended by imperial constitutions, providing +that grandchildren should be called to inherit exactly like children. It +is to be observed that rights of succession such as those conferred +by the SC. Tertullianum and Orfitianum are not extinguished by loss of +status, owing to the rule that rights of succession conferred by later +statutes are not destroyed in this way, but only such as are conferred +by the statute of the Twelve Tables; + +3 and finally that under the latter of these two enactments even +illegitimate children are admitted to their mother's inheritance. + +4 If there are several heirs with a statutory title, some of whom do +not accept, or are prevented from doing so by death or some other cause, +their shares accrue in equal proportions to those who do accept the +inheritance, or to their heirs, supposing they die before the failure of +the others to take. + + + + +TITLE V. OF THE SUCCESSION OF COGNATES + +After family heirs, and persons who by the praetor and the imperial +legislation are ranked as such, and after persons statutorily entitled, +among whom are the agnates and those whom the aforesaid senatusconsults +and our constitution have raised to the rank of agnates, the praetor +calls the nearest cognates. + +1 In this class or order natural or blood relationship alone is +considered: for agnates who have undergone loss of status and their +children, though not regarded as having a statutory title under the +statute of the Twelve Tables, are called by the praetor in the +third order of the succession. The sole exceptions to this rule are +emancipated brothers and sisters, though not in equal shares with them, +but with some deduction, the amount of which can easily be ascertained +from the terms of the constitution itself. But to other agnates of +remoter degrees, even though they have not undergone loss of status, and +still more to cognates, they are preferred by the aforesaid statute. + +2 Again, collateral relations connected with the deceased only by the +female line are called to the succession by the praetor in the third +order as cognates; + +3 and children who are in an adoptive family are admitted in this order +to the inheritance of their natural parent. + +4 It is clear that illegitimate children can have no agnates, for in +law they have no father, and it is through the father that agnatic +relationship is traced, while cognatic relationship is traced through +the mother as well. On the same principle they cannot be held to be +consanguinei of one another, for consanguinei are in a way agnatically +related: consequently, they are connected with one another only as +cognates, and in the same way too with the cognates of their mother. +Accordingly, they can succeed to the possession of goods under that part +of the Edict in which cognates are called by the title of mere kinship. + +5 In this place too we should observe that a person who claims as an +agnate can be admitted to the inheritance, even though ten degrees +removed from the deceased, both by the statute of the Twelve Tables, and +by the Edict in which the praetor promises the possession of goods to +heirs statutorily entitled: but on the ground of mere natural kinship +the praetor promises possession of goods to those cognates only who are +within the sixth degree; the only persons in the seventh degree whom +he admits as cognates being the children of a second cousin of the +deceased. + + + + +TITLE VI. OF THE DEGREES OF COGNATION + +It is here necessary to explain the way in which the degrees of natural +relationship are reckoned. In the first place it is to be observed that +they can be counted either upwards, or downwards, or crosswise, that is +to say, collaterally. Relations in the ascending line are parents, in +the descending line, children, and similarly uncles and aunts paternal +and maternal. In the ascending and descending lines a man's nearest +cognate may be related to him in the first degree; in the collateral +line he cannot be nearer to him than the second. + +1 Relations in the first degree, reckoning upwards, are the father and +mother; reckoning downwards, the son and daughter. + +2 Those in the second degree, upwards, are grandfather and grandmother; +downwards, grandson and granddaughter; + +3 and in the collateral line brother and sister. In the third degree, +upwards, are the greatgrandfather and greatgrandmother; downwards, the +greatgrandson and greatgranddaughter; in the collateral line, the sons +and daughters of a brother or sister, and also uncles and aunts paternal +and maternal. The father's brother is called 'patruus,' in Greek +'patros', the mother's brother avunculus, in Greek specifically +'matros,' though the term theios is used indifferently to indicate +either. The father's sister is called 'amita,' the mother's 'matertera'; +both go in Greek by the name 'theia,' or, with some, 'tithis.' + +4 In the fourth degree, upwards, are the greatgreatgrandfather and +the greatgreatgrandmother; downwards, the greatgreatgrandson and the +great-great-granddaughter; in the collateral line, the paternal greatuncle +and greataunt, that is to say, the grandfather's brother and sister: the +same relations on the grandmother's side, that is to say, her brother +and sister: and first cousins male and female, that is, children of +brothers and sisters in relation to one another. The children of two +sisters, in relation to one another, are properly called 'consobrini,' +a corruption of 'consororini'; those of two brothers, in relation to one +another, 'fratres patrueles,' if males, 'sorores patrueles,' if females; +and those of a brother and a sister, in relation to one another, +'amitini'; thus the sons of your father's sister call you 'consobrinus,' +and you call them 'amitini.' + +5 In the fifth degree, upwards, are the grandfather's great-grandfather +and great-grandmother, downwards, the great-grandchildren of one's own +grandchildren, and in the collateral line the grandchildren of a brother +or sister, a great-grandfather's or great-grandmother's brother or sister, +the children of one's first cousins, that is, of a 'frater-' or 'soror +patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or +'amitina,' and first cousins once removed, that is to say, the children +of a great-uncle or great-aunt paternal or maternal. + +6 In the sixth degree, upwards, are the great-grandfather's +great-grandfather and great-grandmother; downwards, the great-grandchildren +of a great-grandchild, and in the collateral line the great-grandchildren +of a brother or sister, as also the brother and sister of a +great-great-grandfather or great-great-grandmother, and second cousins, +that is to say, the children of 'fratres-' or 'sorores patrueles,' of +'consobrini,' or of 'amitini.' + +7 This will be enough to show how the degrees of relationship are +reckoned; for from what has been said it is easy to understand how we +ought to calculate the remoter degrees also, each generation always +adding one degree: so that it is far easier to say in what degree any +one is related to some one else than to indicate his relationship by the +proper specific term. + +8 The degrees of agnation are also reckoned in the same manner; + +9 but as truth is fixed in the mind of man much better by the eye than +by the ear, we have deemed it necessary, after giving an account of the +degree of relationship, to have a table of them inserted in the present +book, that so the youth may be able by both ears and eyes to gain a most +perfect knowledge of them. [Note:--the pedagogical table is omitted in +the present edition.] + +10 It is certain that the part of the Edict in which the possession +of goods is promised to the next of kin has nothing to do with the +relationships of slaves with one another, nor is there any old +statute by which such relationships were recognised. However, in +the constitution which we have issued with regard to the rights of +patrons--a subject which up to our times had been most obscure, and +full of difficulties and confusion--we have been prompted by humanity +to grant that if a slave shall beget children by either a free woman +or another slave, or conversely if a slave woman shall bear children of +either sex by either a freeman or a slave, and both the parents and the +children (if born of a slave woman) shall become free, or if the mother +being free, the father be a slave, and subsequently acquire his freedom, +the children shall in all these cases succeed their father and mother, +and the patron's rights lie dormant. And such children we have called +to the succession not only of their parents, but also of one another +reciprocally, by this enactment, whether those born in slavery and +subsequently manumitted are the only children, or whether there be +others conceived after their parents had obtained their freedom, and +whether they all have the same father and mother, or the same father and +different mothers, or vice versa; the rules applying to children born in +lawful wedlock being applied here also. + +11 To sum up all that we have said, it appears that persons related +in the same degree of cognation to the deceased are not always called +together, and that even a remoter is sometimes preferred to a nearer +cognate. For as family heirs and those whom we have enumerated as +equivalent to family heirs have a priority over all other claimants, it +is clear that a great-grandson or great-great-grandson is preferred to a +brother, or the father or mother of the deceased; and yet the father and +mother, as we have remarked above, are in the first degree of +cognation, and the brother is in the second, while the great-grandson and +great-great-grandson are only in the third and fourth respectively. And it +is immaterial whether the descendant who ranks among family heirs was in +the power of the deceased at the time of his death, or out of it through +having been emancipated or through being the child of an emancipated +child or a child of the female sex. + +12 When there are no family heirs, and none of those persons who we have +said rank as such, an agnate who has lost none of his agnatic rights, +even though very many degrees removed from the deceased, is usually +preferred to a nearer cognate; for instance, the grandson or +great-grandson of a paternal uncle has a better title than a maternal +uncle or aunt. Accordingly, in saying that the nearest cognate is +preferred in the succession, or that, if there are several cognates in +the nearest degree, they are called equally, we mean that this is the +case if no one is entitled to priority, according to what we have said, +as either being or ranking as a family heir, or as being an agnate; the +only exceptions to this being emancipated brothers and sisters of the +deceased who are called to succeed him, and who, in spite of their loss +of status, are preferred to other agnates in a remoter degree than +themselves. + + + + +TITLE VII. OF THE SUCCESSION TO FREEDMEN + +Let us now turn to the property of freedmen. These were originally +allowed to pass over their patrons in their wills with impunity: for by +the statute of the Twelve Tables the inheritance of a freedman devolved +on his patron only when he died intestate without leaving a family +heir. If he died intestate, but left a family heir, the patron was not +entitled to any portion of this property, and this, if the family +heir was a natural child, seemed to be no grievance; but if he was an +adoptive child, it was clearly unfair that the patron should be debarred +from all right to the succession. + +1 Accordingly this injustice of the law was at a later period corrected +by the praetor's Edict, by which, if a freedman made a will, he was +commanded to leave his patron half his property; and, if he left him +nothing at all, or less than a half, possession of such half was given +to him against the testament. If, on the other hand, he died intestate, +leaving as family heir an adoptive son, the patron could obtain even +against the latter possession of the goods of the deceased to the extent +of onehalf. But the freedman was enabled to exclude the patron if he +left natural children, whether in his power at the time of his death, or +emancipated or given in adoption, provided that he made a will in which +he instituted them heirs to any part of the succession, or that, being +passed over, they demanded possession against the will under the Edict: + +2 if disinherited, they did not avail to bar the patron. At a still +later period the lex Papia Poppaea augmented the rights of patrons +who had more wealthy freedmen. By this it was enacted that, whenever +a freedman left property amounting in value to a hundred thousand +sesterces and upwards, and not so many as three children, the patron, +whether he died testate or intestate, should be entitled to a portion +equal to that of a single child. Accordingly, if the freedman left +a single son or daughter as heir, the patron could claim half the +property, exactly as if he had died without leaving any children: if he +left two children as heirs, the patron could claim a third: if he left +three, the patron was excluded altogether. + +3 In our constitution, however, which we have drawn up in a convenient +form and in the Greek language, so as to be known by all, we have +established the following rules for application to such cases. If the +freedman or freedwoman is less than a 'centenarius', that is, has +a fortune of less than a hundred aurei (which we have reckoned as +equivalent to the sum of a hundred thousand sesterces fixed by the lex +Papia), the patron shall have no right to any share in the succession +if they make a will; while, if they die intestate without leaving any +children, we have retained unimpaired the rights conferred on the patron +by the Twelve Tables. If they are possessed of more than a hundred +aurei, and leave a descendant or descendants of either sex and any +degree to take the inheritance civil or praetorian, we have given to +such child or children the succession to their parents, to the exclusion +of every patron and his issue. If, however, they leave no children, and +die intestate, we have called the patron or patroness to their whole +inheritance: while if they make a will, passing over their patron or +patroness, and leaving no children, or having disinherited such as they +have, or (supposing them to be mothers or maternal grandfathers) having +passed them over without leaving them the right to impeach the testament +as unduteous, then, under our constitution, the patron shall succeed, +by possession against the will, not, as before, to onehalf of the +freedman's estate, but to onethird, or, if the freedman or freedwoman +has left him less than this third in his or her will, to so much as will +make up the difference. But this third shall be free from all charges, +even from legacies or trust bequests in favour of the children of +the freedman or freedwoman, all of which are to fall on the patron's +coheirs. In the same constitution we have gathered together the rules +applying to many other cases, which we deemed necessary for the +complete settlement of this branch of law: for instance, a title to the +succession of freedmen is conferred not only on patrons and patronesses, +but on their children and collateral relatives to the fifth degree: all +of which may be ascertained by reference to the constitution itself. If, +however, there are several descendants of a patron or patroness, or of +two or several, the nearest in degree is to take the succession of the +freedman or freedwoman, which is to be divided, not among the stocks, +but by counting the heads of those nearest in degree. And the same +rule is to be observed with collaterals: for we have made the law of +succession to freedmen almost identical with that relating to freeborn +persons. + +4 All that has been said relates nowadays to freedmen who are Roman +citizens, for dediticii and Latini Iuniani having been together +abolished there are now no others. As to a statutory right of succession +to a Latin, there never was any such thing; for men of this class, +though during life they lived as free, yet as they drew their last +breath they lost their liberty along with their life, and under the lex +Iunia their manumitters kept their property, like that of slaves, as a +kind of peculium. It was subsequently provided by the SC. Largianum +that the manumitter's children, unless expressly disinherited, should be +preferred to his external heirs in succession to the goods of a Latin; +and this was followed by the edict of the Emperor Trajan, providing that +a Latin who contrived, without the knowledge or consent of his patron, +to obtain by imperial favour a grant of citizenship should live +a citizen, but die a Latin. Owing, however, to the difficulties +accompanying these changes of condition, and others as well, we have +determined by our constitution to repeal for ever the lex Iunia, the SC. +Largianum, and the edict of Trajan, and to abolish them along with the +Latins themselves, so as to enable all freedmen to enjoy the citizenship +of Rome: and we have converted in a wonderful manner the modes in which +persons became Latins, with some additions, into modes of attaining +Roman citizenship. + + + + +TITLE VIII. OF THE ASSIGNMENT OF FREEDMEN + +Before we leave the subject of succession to freedmen, we should observe +a resolution of the Senate, to the effect that, though the property of +freedmen belongs in equal portions to all the patron's children who +are in the same degree, it shall yet be lawful for a parent to assign +a freedman to one of his children, so that after his own death the +assignee shall be considered his sole patron, and the other children +who, had it not been for such assignment, would be admitted equally with +him, shall have no claim to the succession whatever: though they recover +their original rights if the assignee dies without issue. + +1 It is lawful to assign freedwomen as well as freedmen, and to +daughters and granddaughters no less than to sons and grandsons; + +2 and the power of assignment is conferred on all who have two or +more children in their power, and enables them to assign a freedman or +freedwoman to such children while so subject to them. Accordingly the +question arose, whether the assignment becomes void, if the parent +subsequently emancipates the assignee? and the affirmative opinion, +which was held by Julian and many others, has now become settled law. + +3 It is immaterial whether the assignment is made in a testament or +not, and indeed patrons are enabled to exercise this power in any terms +whatsoever, as is provided by the senatusconsult passed in the time of +Claudius, when Suillus Rufus and Ostorius Scapula were consuls. + + + + +TITLE IX. OF POSSESSION OF GOODS + +The law as to possession of goods was introduced by the praetor by way +of amending the older system, and this not only in intestate succession, +as has been described, but also in cases where deceased persons have +made a will. For instance, although the posthumous child of a +stranger, if instituted heir, could not by the civil law enter upon the +inheritance, because his institution would be invalid, he could with +the assistance of the praetor be made possessor of the goods by the +praetorian law. Such a one can now, however, by our constitution be +lawfully instituted, as being no longer unrecognised by the civil law. + +1 Sometimes, however, the praetor promises the possession of goods +rather in confirmation of the old law than for the purpose of correcting +or impugning it; as, for instance, when he gives possession in +accordance with a duly executed will to those who have been instituted +heirs therein. Again, he calls family heirs and agnates to the +possession of goods on an intestacy; and yet, even putting aside the +possession of goods, the inheritance belongs to them already by the +civil law. + +2 Those whom the praetor calls to a succession do not become heirs in +the eye of the law, for the praetor cannot make an heir, because persons +become heirs by a statute only, or some similar ordinance such as a +senatusconsult or an imperial constitution: but as the praetor gives +them the possession of goods they become quasiheirs, and are called +'possessors of goods.' And several additional grades of grantees of +possession were recognised by the praetor in his anxiety that no +one might die without a successor; the right of entering upon an +inheritance, which had been confined by the statute of the Twelve Tables +within very narrow limits, having been conferred more extensively by him +in the spirit of justice and equity. + +3 The following are the kinds of testamentary possession of goods. +First, the socalled 'contratabular' possession, given to children who +are merely passed over in the will. Second, that which the praetor +promises to all duly instituted heirs, and which is for that reason +called secundum tabulas. Then, having spoken of wills, the praetor +passes on to cases of intestacy, in which, firstly, he gives the +possession of goods which is called unde liberi to family heirs and +those who in his Edict are ranked as such. Failing these, he gives it, +secondly, to successors having a statutory title: thirdly, to the ten +persons whom he preferred to the manumitter of a free person, if a +stranger in relation to the latter, namely the latter's father and +mother, grandparents paternal and maternal, children, grandchildren by +daughters as well as by sons, and brothers and sisters whether of the +whole or of the half blood only. The fourth degree of possession is +that given to the nearest cognates: the fifth is that called tum quam +ex familia: the sixth, that given to the patron and patroness, their +children and parents: the seventh, that given to the husband or wife of +the deceased: the eighth, that given to cognates of the manumitter. + +4 Such was the system established by the praetorian jurisdiction. We, +however, who have been careful to pass over nothing, but correct +all defects by our constitutions, have retained, as necessary, the +possession of goods called contra tabulas and secundum tabulas, and also +the kinds of possession upon intestacy known as unde liberis and unde +legitimi. + +5 The possession, however, which in the praetor's Edict occupied the +fifth place, and was called unde decem personae, we have with benevolent +intentions and with a short treatment shown to be superfluous. Its +effect was to prefer to the extraneous manumitter the ten persons +specified above; but our constitution, which we have made concerning the +emancipation of children, has in all cases made the parent implicitly +the manumitter, as previously under a fiduciary contract, and has +attached this privilege to every such manumission, so as to render +superfluous the aforesaid kind of possession of goods. We have therefore +removed it, and put in its place the possession which the praetor +promises to the nearest cognates, and which we have thus made the fifth +kind instead of the sixth. + +6 The possession of goods which formerly stood seventh in the list, +which was called tum quam ex familia, and that which stood eighth, +namely, the possession entitled unde liberi patroni patronaeque et +parentes eorum, we have altogether suppressed by our constitution +respecting the rights of patrons. For, having assimilated the succession +to freedmen to the succession to freeborn persons, with this sole +exception--in order to preserve some difference between the two +classes--that no one has any title to the former who is related more +distantly than the fifth degree, we have left them sufficient remedies +in the 'contratabular' possession, and in those called unde legitimi and +unde cognati, wherewith to vindicate their rights, so that thus all the +subtleties and inextricable confusion of these two kinds of possession +of goods have been abolished. + +7 We have preserved in full force another possession of goods, which is +called unde vir et uxor, and which occupied the ninth place in the old +classification, and have given it a higher place, namely, the sixth. +The tenth kind, which was called unde cognati manumissoris, we have +very properly abolished for reasons which have been already stated: +thus leaving in full operation only six ordinary kinds of possession of +goods. + +8 The seventh, which follows them, was introduced with most excellent +reason by the praetors, whose Edict finally promised the possession +of goods to those persons expressly entitled to it by any statute, +senatusconsult, or imperial constitution; but this was not permanently +incorporated by the praetor with either the intestate or the +testamentary kinds of possession, but was accorded by him, as +circumstances demanded, as an extreme and extraordinary remedy to +those persons who claim, either under a will or on an intestacy, +under statutes, senatusconsults, or the more recent legislation of the +emperors. + +9 The praetor, having thus introduced many kinds of successions, and +arranged them in a system, fixed a definite time within which the +possession of goods must be applied for, as there are often several +persons entitled in the same kind of succession, though related in +different degrees to the deceased, in order to save the creditors of +the estate from delay in their suits, and to provide them with a proper +defendant to sue; and with the object also of making it less easy +for them to obtain possession of the property of the deceased, as in +bankruptcy, wherein they consulted their own advantage only. He allowed +to children and parents, adoptive no less than natural, an interval of +a year, and to all other persons one hundred days, within which to make +the application. + +10 If a person entitled does not apply for the possession of goods +within the time specified, his portion goes by accrual to those in the +same degree or class with himself: or, if there be none, the praetor +promises by his successory edict the possession to those in the next +degree, exactly as if the person in the preceding one were nonexistent. +If any one refuses the possession of goods which he has the opportunity +of accepting, it is not unusual to wait until the aforesaid interval, +within which possession must be applied for, has elapsed, but the next +degree is admitted immediately under the same edict. + +11 In reckoning the interval, only those days are considered upon which +the persons entitled could have made application. + +12 Earlier emperors, however, have judiciously provided that no one +need trouble himself expressly to apply for the possession of goods, +but that, if he shall within the prescribed time in any manner have +signified his intention to accept, he shall have the full benefit of +such tacit acceptance. + + + + +TITLE X. OF ACQUISITION BY ADROGATION + +There is another kind of universal succession which owes its +introduction neither to the statute of the Twelve Tables nor to the +praetor's Edict, but to the law which is based upon custom and consent. + +1 When an independent person gives himself in adrogation, all his +property, corporeal and incorporeal, and all debts due to him formerly +passed in full ownership to the adrogator, except such rights as are +extinguished by loss of status, for instance, bounden services of +freedmen and rights of agnation. Use and usufruct, though formerly +enumerated among such rights, have now been saved by our constitution +from extinction by the least loss of status. + +2 But we have now confined acquisition by adrogation within the same +limits as acquisition through their children by natural parents; that is +to say, adoptive as well as natural parents acquire no greater right +in property which comes to children in their power from any extraneous +source than a mere usufruct; the ownership is vested in the children +themselves. But if a son who has been adrogated dies in his adoptive +family, the whole of his property vests in the adrogator, failing those +persons who, under our constitution, are preferred to the father in +succession to property which is not acquired immediately from him. + +3 Conversely, the adrogator is not, by strict law, suable for the debts +of his adoptive son, but an action may be brought against him as his +representative; and if he declines to defend the latter, the creditors +are allowed, by an order of the magistrates having jurisdiction in such +cases, to take possession of the property of which the usufruct as well +as the ownership would have belonged to the son, had he not subjected +himself to the power of another, and to dispose of it in the mode +prescribed by law. + + + + +TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE +THE GIFTS OF LIBERTY + +A new form of succession was added by a constitution of the Emperor +Marcus, which provided that if slaves, who have received a bequest of +liberty from their master in a will under which no heir takes, wish +to have his property adjudged to them, their application shall be +entertained. + +1 Such is the substance of a rescript addressed by the Emperor Marcus to +Popilius Rufus, which runs as follows: 'If there is no successor to +take on the intestacy of Virginius Valens, who by his will has conferred +freedom on certain of his slaves, and if, consequently, his property +is in danger of being sold, the magistrate who has cognizance of such +matters shall on application entertain your desire to have the property +adjudged to you, in order to give effect to the bequests of liberty, +direct and fiduciary, provided you give proper security to the creditors +for payment of their claims in full. Slaves to whom liberty has been +directly bequeathed shall become free exactly as if the inheritance had +been actually accepted, and those whom the heir was requested to manumit +shall obtain their liberty from you; provided that if you will have the +property adjudged to you only upon the condition, that even the +slaves who have received a direct bequest of liberty shall become your +freedmen, and if they, whose status is now in question, agree to this, +we are ready to authorize compliance with your wishes. And lest the +benefit afforded by this our rescript be rendered ineffectual in another +way, by the Treasury laying claim to the property, be it hereby known +to those engaged in our service that the cause of liberty is to be +preferred to pecuniary advantage, and that they must so effect such +seizures as to preserve the freedom of those who could have obtained it +had the inheritance been accepted under the will.' + +2 This rescript was a benefit not only to slaves thus liberated, but +also to the deceased testators themselves, by saving their property from +being seized and sold by their creditors; for it is certain that such +seizure and sale cannot take place if the property has been adjudged on +this account, because some one has come forward to defend the deceased, +and a satisfactory defender too, who gives the creditors full security +for payment. + +3 Primarily, the rescript is applicable only where freedom is conferred +by a will. How then will the case stand, if a man who dies intestate +makes gifts of freedom by codicils, and on the intestacy no one accepts +the inheritance? We answer, that the boon conferred by the constitution +ought not here to be refused. No one can doubt that liberty given, in +codicils, by a man who dies having made a will, is effectual. + +4 The terms of the constitution show that it comes into application when +there is no successor on an intestacy; accordingly, it is of no use so +long as it is uncertain whether there will be one or not; but, when this +has been determined in the negative, it at once becomes applicable. + +5 Again, it may be asked whether, if a person who abstains from +accepting an inheritance can claim a judicial restoration of rights, the +constitution can still be applied, and the goods adjudged under it? And +what, if such person obtains a restoration after they have been actually +adjudged in order to give effect to the bequest of freedom? We reply +that gifts of liberty to which effect has once been given cannot +possibly be recalled. + +6 The object with which this constitution was enacted was to give effect +to bequests of liberty, and accordingly it is quite inapplicable where +no such bequests are made. Supposing, however, that a man manumits +certain slaves in his lifetime, or in contemplation of death, and +in order to prevent any questions arising whether the creditors have +thereby been defrauded, the slaves are desirous of having the property +adjudged to them, should this be permitted? and we are inclined to say +that it should, though the point is not covered by the terms of the +constitution. + +7 Perceiving, however, that the enactment was wanting in many minute +points of this kind, we have ourselves issued a very full constitution, +in which have been collected many conceivable cases by which the law +relating to this kind of succession has been completed, and with which +any one can become acquainted by reading the constitution itself. + + + + +TITLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON +BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM + +There were other kinds of universal succession in existence prior to +that last before mentioned; for instance, the 'purchase of goods' which +was introduced with many prolixities of form for the sale of insolvent +debtors' estates, and which remained in use under the socalled +'ordinary' system of procedure. Later generations adopted the +'extraordinary' procedure, and accordingly sales of goods became +obsolete along with the ordinary procedure of which they were a part. +Creditors are now allowed to take possession of their debtor's property +only by the order of a judge, and to dispose of it as to them seems most +advantageous; all of which will appear more perfectly from the larger +books of the Digest. + +1 There was too a miserable form of universal acquisition under the SC. +Claudianum, when a free woman, through indulgence of her passion for a +slave, lost her freedom by the senatusconsult, and with her freedom her +property. But this enactment we deemed unworthy of our times, and have +ordered its abolition in our Empire, nor allowed it to be inserted in +our Digest. + + + + +TITLE XIII. OF OBLIGATIONS + +Let us now pass on to obligations. An obligation is a legal bond, with +which we are bound by a necessity of performing some act according to +the laws of our State. + +1 The leading division of obligations is into two kinds, civil and +praetorian. Those obligations are civil which are established by +statute, or at least are sanctioned by the civil law; those are +praetorian which the praetor has established by his own jurisdiction, +and which are also called honorary. + +2 By another division they are arranged in four classes, contractual, +quasicontractual, delictal, and quasidelictal. And first, we must +examine those which are contractual, and which again fall into four +species, for contract is concluded either by delivery, by a form of +words, by writing, or by consent: each of which we will treat in detail. + + + + +TITLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE +CONTRACTED BY DELIVERY + +Real contracts, or contracts concluded by delivery, are exemplified +by loan for consumption, that is to say, loan of such things as are +estimated by weight, number, or measure, for instance, wine, oil, corn, +coined money, copper, silver, or gold: things in which we transfer +our property on condition that the receiver shall transfer to us, at a +future time, not the same things, but other things of the same kind and +quality: and this contract is called mutuum, because thereby meum or +mine becomes tuum or thine. The action to which it gives rise is called +a condiction. + +1 Again, a man is bound by a real obligation if he takes what is not +owed him from another who pays him by mistake; and the latter can, as +plaintiff, bring a condiction against him for its recovery, after the +analogy of the action whose formula ran 'if it be proved that he ought +to convey,' exactly as if the defendant had received a loan from him. +Consequently a pupil who, by mistake, is paid something which is not +really owed him without his guardian's authority, will no more be bound +by a condiction for the recovery of money not owed than by one for money +received as a loan: though this kind of liability does not seem to be +founded on contract; for a payment made in order to discharge a debt is +intended to extinguish, not to create, an obligation. + +2 So too a person to whom a thing is lent for use is laid under a +real obligation, and is liable to the action on a loan for use. The +difference between this case and a loan for consumption is considerable, +for here the intention is not to make the object lent the property of +the borrower, who accordingly is bound to restore the same identical +thing. Again, if the receiver of a loan for consumption loses what he +has received by some accident, such as fire, the fall of a building, +shipwreck, or the attack of thieves or enemies, he still remains bound: +but the borrower for use, though responsible for the greatest care in +keeping what is lent him--and it is not enough that he has shown as much +care as he usually bestows on his own affairs, if only some one else +could have been more diligent in the charge of it--has not to answer for +loss occasioned by fire or accident beyond his control, provided it +did not occur through any fault of his own. Otherwise, of course, it is +different: for instance, if you choose to take with you on a journey a +thing which has been lent to you for use, and lose it by being attacked +by enemies or thieves, or by a shipwreck, it is beyond question that you +will be liable for its restoration. A thing is not properly said to +be lent for use if any recompense is received or agreed upon for the +service; for where this is the case, the use of the thing is held to be +hired, and the contract is of a different kind, for a loan for use ought +always to be gratuitous. + +3 Again, the obligation incurred by a person with whom a thing is +deposited for custody is real, and he can be sued by the action of the +deposit; he too being responsible for the restoration of the identical +thing deposited, though only where it is lost through some positive +act of commission on his part: for for carelessness, that is to say, +inattention and negligence, he is not liable. Thus a person from whom +a thing is stolen, in the charge of which he has been most careless, +cannot be called to account, because, if a man entrusts property to the +custody of a careless friend, he has no one to blame but himself for his +want of caution. + +4 Finally, the creditor who takes a thing in pledge is under a real +obligation, and is bound to restore the thing itself by the action of +pledge. A pledge, however, is for the benefit of both parties; of +the debtor, because it enables him to borrow more easily, and of +the creditor, because he has the better security for repayment; and +accordingly, it is a settled rule that the pledgee cannot be held +responsible for more than the greatest care in the custody of the +pledge; if he shows this, and still loses it by some accident, he +himself is freed from all liability, without losing his right to sue for +the debt. + + + + +TITLE XV. OF VERBAL OBLIGATION + +An obligation is contracted by question and answer, that is to say, by a +form of words, when we stipulate that property shall be conveyed to +us, or some other act be performed in our favour. Such verbal contracts +ground two different action, namely condiction, when the stipulation is +certain, and the action on stipulation, when it is uncertain; and the +name is derived from stipulum, a word in use among the ancients to mean +'firm,' coming possibly from stipes, the trunk of a tree. + +1 In this contract the following forms of words were formerly sanctioned +by usage: 'Do you engage yourself to do so and so?' 'I do engage +myself.' 'Do you promise?' 'I do promise.' 'Do you pledge your credit?' +'I pledge my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you +convey?' 'I will convey.' 'Will you do?' 'I will do.' Whether the +stipulation is in Latin, or Greek, or any other language, is immaterial, +provided the two parties understand one another, so that it is not +necessary even that they should both speak in the same tongue, so long +as the answer corresponds to the question, and thus two Greeks, for +instance, may contract an obligation in Latin. But it was only in former +times that the solemn forms referred to were in use: for subsequently, +by the enactment of Leo's constitution, their employment was rendered +unnecessary, and nothing was afterwards required except that the parties +should understand each other, and agree to the same thing, the words in +which such agreement was expressed being immaterial. + +2 The terms of a stipulation may be absolute, or performance may either +be postponed to some future time, or be made subject to a condition. +An absolute stipulation may be exemplified by the following: 'Do you +promise to give five aurei?' and here (if the promise be made) that sum +may be instantly sued for. As an instance of stipulation in diem, as +it is called where a future day is fixed for payment, we may take the +following: 'Do you promise to give ten aurei on the first of March?' In +such a stipulation as this, an immediate debt is created, but it cannot +be sued upon until the arrival of the day fixed for payment: and even on +that very day an action cannot be brought, because the debtor ought to +have the whole of it allowed to him for payment; for otherwise, unless +the whole day on which payment was promised is past, it cannot be +certain that default has been made. + +3 If the terms of your stipulation run 'Do you promise to pay me ten +aurei a year so long as I live?' the obligation is deemed absolute, and +the liability perpetual, for a debt cannot be owed till a certain +time only; though if the promisee's heir sues for payment, he will be +successfully met by the plea of contrary agreement. + +4 A stipulation is conditional, when performance is made to depend on +some uncertain event in the future, so that it becomes actionable only +on something being done or omitted: for instance, 'Do you promise to +give five aurei if Titius is made consul?' If, however, a man stipulates +in the form 'Do you promise to give so and so, if I do not go up to the +Capitol?' the effect is the same as if he had stipulated for payment to +himself at the time of his death. The immediate effect of a conditional +stipulation is not a debt, but merely the expectation that at some time +there will be a debt: and this expectation devolves on the stipulator's +heir, supposing he dies himself before fulfilment of the condition. + +5 It is usual in stipulations to name a place for payment; for instance, +'Do you promise to give at Carthage?' Such a stipulation as this, though +in its terms absolute, implies a condition that enough time shall be +allowed to the promisor to enable him to pay the money at Carthage. +Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay +today at Carthage?' the stipulation is void, because the performance of +the act to be promised is a physical impossibility. + +6 Conditions relating to past or present time either make the obligation +void at once, or have no suspensive operation whatever. Thus, in the +stipulation 'Do you promise to give so and so, if Titius has been +consul, or if Maevius is alive?' the promise is void, if the condition +is not satisfied; while if it is, it is binding at once: for events +which in themselves are certain do not suspend the binding force of an +obligation, however uncertain we ourselves may be about them. + +7 The performance or nonperformance of an act may be the object of a +stipulation no less than the delivery of property, though where this is +the case, it will be best to connect the nonperformance of the act to be +performed, or the performance of the act to be omitted, with a pecuniary +penalty to be paid in default, lest there be doubt as to the value of +the act or omission, which will make it necessary for the plaintiff to +prove to what damages he is entitled. Thus, if it be a performance +which is stipulated for, some such penalty should be added as in the +following: 'If so and so is not done, do you promise to pay ten aurei as +a penalty?' And if the performance of some acts, and the nonperformance +of others, are bargained for in the same stipulation, a clause of the +following kind should be added, 'If any default is made, either as +contrary to what is agreed upon, or by way of nonperformance, do you +promise to pay a penalty of ten aurei?' + + + + +TITLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO +DEBTORS + +There may be two or more parties on either side in a stipulation, that +is to say, as promisors or promisees. Joint promises are so constituted +by the promisor answering, 'I promise,' after they have all first +asked the question; for instance, if after two promises have separately +stipulated from him, he answers, 'I promise to give so and so to each of +you.' But if he first promises to Titius, and then, on another's putting +the question to him, promises to him too, there will be two distinct +obligations, namely, one between him and each of the promisees, and they +are not considered joint promisees at all. The usual form to constitute +two or more joint promisors is as follows,--'Maevius, do you promise to +give five aurei? Seius, do you promise to give the same five aurei?' and +in answer they reply separately, 'I promise.' + +1 In obligations of this kind each joint promisee is owed the whole sum, +and the whole sum can be claimed from each joint promisor; and yet +in both cases but one payment is due, so that if one joint promisee +receives the debt, or one joint promisor pays it, the obligation is +thereby extinguished for all, and all are thereby released from it. + +2 Of two joint promisors one may be bound absolutely, while performance +by the other is postponed to a future day, or made to depend on a +condition; but such postponement or such condition in no way prevents +the stipulator from at once suing the one who was bound absolutely. + + + + +TITLE XVII. OF STIPULATIONS MADE BY SLAVES + +From his master's legal capacity a slave derives ability to be promisee +in a stipulation. Thus, as an inheritance in most matters represents +the legal 'person' of the deceased, whatever a slave belonging to it +stipulates for, before the inheritance is accepted, he acquires for the +inheritance, and so for the person who subsequently becomes heir. + +1 All that a slave acquires by a stipulation he acquires for his master +only, whether it was to that master, or himself, or his fellow slave, or +no one in particular that performance was to be made under the contract; +and the same principle applies to children in power, so far as they now +are instruments of acquisition for their father. + +2 When, however, what is stipulated for is permission to do some +specific act, that permission cannot extend beyond the person of the +promisee: for instance, if a slave stipulates for permission to cross +the promisor's land, he cannot himself be denied passage, though his +master can. + +3 A stipulation by a slave belonging to joint owners enures to the +benefit of all of them in proportion to the shares in which they own +him, unless he stipulated at the bidding, or expressly in favour, of one +of them only, in which case that one alone is benefited. Where a jointly +owned slave stipulates for the transfer of property which cannot be +acquired for one of his two masters, the contract enures to the benefit +of the other only: for instance, where the stipulation is for the +transfer of a thing which already belongs to one of them. + + + + +TITLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS + +Stipulations are either judicial, praetorian, conventional, or common: +by the latter being meant those which are both praetorian and judicial. + +1 Judicial stipulations are those which it is simply part of the judge's +duty to require; for instance, security against fraud, or for the +pursuit of a runaway slave, or (in default) for payment of his value. + +2 Those are praetorian, which the praetor is bound to exact simply in +virtue of his magisterial functions; for instance, security against +apprehended damage, or for payment of legacies by an heir. Under +praetorian stipulations we must include also those directed by the +aedile, for these too are based upon jurisdiction. + +3 Conventional stipulations are those which arise merely from the +agreement of the parties, apart from any direction of a judge or of the +praetor, and which one may almost say are of as many different kinds as +there are conceivable objects to a contract. + +4 Common stipulations may be exemplified by that by which a guardian +gives security that his ward's property will not be squandered or +misappropriated, which he is sometimes required to enter into by the +praetor, and sometimes also by a judge when the matter cannot be managed +in any other way; or, again, we might take the stipulation by which an +agent promises that his acts shall be ratified by his principal. + + + + +TITLE XIX. OF INVALID STIPULATIONS + +Anything, whether movable or immovable, which admits of private +ownership, may be made the object of a stipulation; 1 but if a man +stipulates for the delivery of a thing which either does not or cannot +exist, such as Stichus, who is dead but whom he though alive, or an +impossible creature, like a hippocentaur, the contract will be void. + +2 Precisely the same principles applies where a man stipulates for the +delivery of a thing which is sacred or religious, but which he thought +was a subject of human ownership, or of a thing which is public, that is +to say, devoted in perpetuity to the use and enjoyment of the people +at large, like a forum or theatre, or of a free man whom he thought a +slave, or of a thing which he is incapable of owning, or which is +his own already. And the fact that a thing which is public may +become private property, that a free man may become a slave, that the +stipulator may become capable of owning such and such a thing, or that +such and such a thing may cease to belong to him, will not avail to +merely suspend the force of the stipulation in these cases, but it is +void from the outset. Conversely, a stipulation which originally +was perfectly good may be avoided by the thing, which is its object, +acquiring any of the characters just specified through no fault of the +promisor. And a stipulation, such as 'do you promise to convey Lucius +Titius when he shall be a slave' and others like it, are also void from +the beginning; for objects which by their very nature cannot be owned by +man cannot either in any way be made the object of an obligation. + +3 If one man promises that another shall convey, or do so and so, as, +for instance, that Titius shall give five aurei, he will not be bound, +though he will if he promises to get Titius to give them. + +4 If a man stipulates for conveyance to, or performance in favour of, +another person who is not his paterfamilias, the contract is void; +though of course performance to a third person may be bargained for (as +in the stipulation 'do you promise to give to me or to Seius?'); where, +though the obligation is created in favour of the stipulator only, +payment may still be lawfully made to Seius, even against the +stipulator's will, the result of which, if it is done, being that the +promisor is entirely released from his obligation, while the stipulator +can sue Seius by the action of agency. If a man stipulates for payment +of ten aurei to himself and another who is not his paterfamilias, the +contract will be good, though there has been much doubt whether in such +a case the stipulator can sue for the whole sum agreed upon, or only +half; the law is now settled in favour of the smaller sum. If you +stipulate for performance in favour of one in your power, all benefit +under the contract is taken by yourself, for your words are as the words +of your son, as his words are as yours, in all cases in which he is +merely an instrument of acquisition for you. + +5 Another circumstance by which a stipulation may be avoided is want of +correspondence between question and answer, as where a man stipulates +from you for payment of ten aurei, and you promise five, or vice versa; +or where his question is unconditional, your answer conditional, or vice +versa, provided only that in this latter case the difference is express +and clear; that is to say, if he stipulates for payment on fulfilment +of a condition, or on some determinate future day, and you answer: 'I. +promise to pay today,' the contract is void; but if you merely answer: +'I promise,' you are held by this laconic reply to have undertaken +payment on the day, or subject to the condition specified; for it is not +essential that every word used by the stipulator should be repeated in +the answer of the promise. + +6 Again, no valid stipulation can be made between two persons of whom +one is in the power of the other. A slave indeed cannot be under an +obligation to either his master or anybody else: but children in power +can be bound in favour of any one except their own paterfamilias. + +7 The dumb, of course, cannot either stipulate or promise, nor can the +deaf, for the promisee in stipulation must hear the answer, and the +promisor must hear the question; and this makes it clear that we are +speaking of persons only who are stone deaf, not of those who (as it is +said) are hard of hearing. + +8 A lunatic cannot enter into any contract at all, because he does not +understand what he is doing. + +9 On the other hand a pupil can enter into any contract, provided that +he has his guardian's authority, when necessary, as it is for incurring +an obligation, though not for imposing an obligation on another person. + +10 This concession of legal capacity of disposition is manifestly +reasonable in respect of children who have acquired to some +understanding, for children below the age of seven years, or who have +just passed that age, resemble lunatics in want of intelligence. Those, +however, who have just completed their seventh year are permitted, by +a beneficent interpretation of the law, in order to promote their +interests, to have the same capacity as those approaching the age of +puberty; but a child below the latter age, who is in paternal power, +cannot bind himself even with his father's sanction. + +11 An impossible condition is one which, according to the course of +nature, cannot be fulfilled, as, for instance, if one says: 'Do +you promise to give if I. touch the sky with my finger?' But if the +stipulation runs: 'Do you promise to give if I do not touch the sky with +my finger?' it is considered unconditional, and accordingly can be sued +upon at once. + +12 Again, a verbal obligation made between persons who are not present +with one another is void. This rule, however, afforded contentious +persons opportunities of litigation, by alleging, after some interval, +that they, or their adversaries, had not been present on the occasion in +question; and we have therefore issued a constitution, addressed to the +advocates of Caesarea, in order with the more dispatch to settle such +disputes, whereby it is enacted that written documents in evidence of a +contract which recite the presence of the parties shall be taken to +be indisputable proof of the fact, unless the person, who resorts to +allegations usually so disgraceful, proves by the clearest evidence, +either documentary or borne by credible witnesses, that he or his +adversary was elsewhere than alleged during the whole day on which the +document is stated to have been executed. + +13 Formerly, a man could not stipulate that a thing should be conveyed +to him after his own death, or after that of the promisor; nor could one +person who was in another's power even stipulate for conveyance after +that person's death, because he was deemed to speak with the voice of +his parent or master; and stipulations for conveyance the day before the +promisee's or promisor's decease were also void. Stipulation, however, +as has already been remarked, derive their validity from the consent +of the contracting parties, and we therefore introduced a necessary +emendation in respect also of this rule of law, by providing that a +stipulation shall be good which bargains for performance either after +the death, or the day before the death, of either promisee or promisor. + +14 Again, a stipulation in the form: 'Do you promise to give today, if +such or such a ship arrives from Asia tomorrow?' was formerly void, as +being preposterous in its expression, because what should come last +is put first. Leo, however, of famous memory held that a preposterous +stipulation in the settlement of a dowry ought not to be rejected as +void, and we have determined to allow it perfect validity in every case, +and not merely in that in which it was formerly sanctioned. + +15 A stipulation, say by Titius, in the form: 'Do you promise to give +when I shall die' or 'when you shall die'? is good now, as indeed it +always was even under the older law. + +16 So too a stipulation for performance after the death of a third +person is good. + +17 If a document in evidence of a contract states that so and so +promised, the promise is deemed to have been given in answer to a +preceding question. + +18 When several acts of conveyance or performance are comprised in +a single stipulation, if the promisor simply answers: 'I promise to +convey,' he becomes liable on each and all of them, but if he answers +that he will convey only one or some of them, he incurs an obligation in +respect of those only which are comprised in his answer, there being +in reality several distinct stipulations of which only one or some +are considered to have acquired binding force: for for each act of +conveyance or performance there ought to be a separate question and a +separate answer. + +19 As has been already observed, no one can validly stipulate for +performance to a person other than himself, for the purpose of this +kind of obligation is to enable persons to acquire for themselves that +whereby they are profited, and a stipulator is not profited if the +conveyance is made to a third person. Hence, if it be wished to make +a stipulation in favour of any such third person, a penalty should be +stipulated for, to be paid, in default of performance of that which is +in reality the object of the contract, to the party who otherwise would +have no interest in such performance; for when one stipulates for a +penalty, it is not his interest in what is the real contract which +is considered, but only the amount to be forfeited to him upon +nonfulfilment of the condition. So that a stipulation for conveyance +to Titius, but made by some one else, is void: but the addition of a +penalty, in the form 'If you do not convey, do you promise to pay me so +many aurei?' makes it good and actionable. + +20 But where the promisor stipulates in favour of a third person, having +himself an interest in the performance of the promise, the stipulation +is good. For instance, if a guardian, after beginning to exercise his +tutorial functions, retires from their exercise in favour of his fellow +guardian, taking from him by stipulation security for the due charge of +the ward's property, he has a sufficient interest in the performance +of this promise, because the ward could have sued him in case of +maladministration, and therefore the obligation is binding. So too a +stipulation will be good by which one bargains for delivery to one's +agent, or for payment to one's creditor, for in the latter case one may +be so far interested in the payment that, if it not be made, one will +become liable to a penalty or to having a foreclosure of estates which +one has mortgaged. + +21 Conversely, he who promises that another shall do so and so is not +bound unless he promises a penalty in default; + +22 and, again, a man cannot validly stipulate that property which will +hereafter be his shall be conveyed to him as soon as it becomes his own. + +23 If a stipulator and the promisor mean different things, there is no +contractual obligation, but it is just as if no answer had been made to +the question; for instance, if one stipulates from you for Stichus, and +you think he means Pamphilus, whose name you believed to be Stichus. + +24 A promise made for an illegal or immoral purpose, as, for instance, +to commit a sacrilege or homicide, is void. + +25 If a man stipulates for performance on the fulfilment of a condition, +and dies before such fulfilment, his heir can sue on the contract when +it occurs: and the heir of the promisor can be sued under the same +circumstances. + +26 A stipulation for a conveyance this year, or this month, cannot be +sued upon until the whole year, or the whole month, has elapsed: + +27 and similarly the promisee cannot sue immediately upon a stipulation +for the conveyance of an estate or a slave, but only after allowing a +sufficient interval for the conveyance to be made. + + + + +TITLE XX. OF FIDEJUSSORS OR SURETIES + +Very often other persons, called fidejussors or sureties, are bound for +the promisor, being taken by promises as additional security. + +1 Such sureties may accompany any obligation, whether real, verbal, +literal or consensual: and it is immaterial even whether the principal +obligation be civil or natural, so that a man may go surety for the +obligation of a slave either to a stranger or to his master. + +2 A fidejussor is not only bound himself, but his obligation devolves +also on his heir' 3 and the contract of suretyship may be entered into +before no less than after the creation of the principal obligation. + +4 If there are several fidejussors to the same obligation, each of them, +however many they are, is liable for the whole amount, and the creditor +may sue whichever he chooses for the whole; but by the letter of Hadrian +he may be compelled to sue for only an aliquot part, determined by the +number of sureties who are solvent at the commencement of the action: so +that if one of them is insolvent at that time the liability of the rest +is proportionately increased. Thus, if one fidejussor pay the whole +amount, he alone suffers by the insolvency of the principal debtor; but +this is his own fault, as he might have availed himself of the letter of +Hadrian, and required that the claim should be reduced to his rateable +portion. + +5 Fidejussors cannot be bound for more than their principal, for their +obligation is but accessory to the latter's, and the accessory cannot +contain more than the principal; but they can be bound for less. Thus, +if the principal debtor promised ten aurei, the fidejussor can well be +bound for five, but not vice versa; and if the principal's promise +is absolute, that of the fidejussor may be conditional, though a +conditional promise cannot be absolutely guaranteed, for more and less +is to be understood of time as well as of quantity, immediate payment +being regarded as more, and future payment as less. + +6 For the recovery of anything paid by him for the principal the +fidejussor can sue the latter by the action on agency. + +7 A fidejussor may be taken in Greek, by using the expressions 'tei +emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be +taken as equivalent to 'lego.' + +8 It is to be observed that in the stipulations of fidejussors the +general rule is that whatever is stated in writing to have been done is +taken to have really been done; and, accordingly, it is settled law that +if a man signs his name to a paper stating that he became a fidejussor, +all formalities are presumed to have been duly observed. + + + + +TITLE XXI. OF LITERAL OBLIGATION + +Formerly there was a kind of obligation made by writing, and said to +be contracted by the entry of a debt in a ledger; but such entries have +nowadays gone out of use. Of course, if a man states in writing that he +owes money which has never been paid over to him, he cannot be allowed, +after a considerable interval, to defend himself by the plea that +the money was not, in fact, advanced; for this is a point which has +frequently been settled by imperial constitutions. The consequence is, +that even at the present day a person who is estopped from this plea is +bound by his written signature, which (even of course where there is no +stipulation) is ground for a condiction. The length of time after +which this defence could not be pleaded was formerly fixed by +imperial constitutions at five years; but it has been reduced by our +constitution, in order to save creditors from a more extended risk of +being defrauded of their money, so that now it cannot be advanced after +the lapse of two years from the date of the alleged payment. + + + + +TITLE XXII. OF OBLIGATION BY CONSENT + +Obligations contracted by mere consent are exemplified by sale, hire, +partnership and agency, which are called consensual contracts because no +writing, nor the presence of the parties, nor any delivery is required +to make the obligation actionable, but the consent of the parties is +sufficient. Parties who are not present together, therefore, can form +these contracts by letter, for instance, or by messenger: and they are +in their nature bilateral, that is, both parties incur a reciprocal +obligation to perform whatever is just and fair, whereas verbal +contracts are unilateral, one party being promisee, and the other alone +promisor. + + + + +TITLE XXIII. OF PURCHASE AND SALE + +The contract of purchase and sale is complete immediately the price +is agreed upon, and even before the price or as much as any earnest is +paid: for earnest is merely evidence of the completion of the contract. +In respect of sales unattested by any written evidence this is a +reasonable rule, and so far as they are concerned we have made no +innovations. By one of our constitutions, however, we have enacted, that +no sale effected by an agreement in writing shall be good or binding, +unless that agreement is written by the contracting parties themselves, +or, if written by some one else, is at least signed by them, or finally, +if written by a notary, is duly drawn by him and executed by the +parties. So long as any of these requirements is unsatisfied, there is +room to retract, and either purchaser or vendor may withdraw from the +agreement with impunity--provided, that is to say, that no earnest has +been given. Where earnest has been given, and either party refuses to +perform the contract, that party, whether the agreement be in writing or +not, if purchaser forfeits what he has given, and if vendor is compelled +to restore double of what he has received, even though there has been no +express agreement in the matter of earnest. + +1 It is necessary that the price should be settled, for without a +price there can be no purchase and sale, and it ought to be a fixed and +certain price. For instance, where the parties agreed that the thing +should be sold at a price to be subsequently fixed by Titius, the older +jurists doubted much whether this was a valid contract of sale or not. +The doubt has been settled in the following way by our decision; if the +third person named actually fixes the price, it must certainly be paid, +as settled by him, and the thing must be delivered, in order to give +effect to the sale; the purchaser (if not fairly treated) suing by the +action on purchase, and the vendor by the action on sale. But if the +third person named will not or cannot fix the price, the sale will +be void, because no price has been settled. This rule, which we have +adopted with regard to sales, may reasonably be extended also to +contracts of hire. + +2 The price, too, should be in money; for it used to be much disputed +whether anything else, such as a slave, a piece of land, or a robe, +could be treated as a price. Sabinus and Cassius held the affirmative, +explaining thus the common theory that exchange is a species, and the +oldest species, of purchase and sale; and in their support they quoted +the lines of Homer, who says in a certain passage that the army of the +Greeks procured themselves wine by giving other things in exchange, +the actual words being as follow: 'then the longhaired Greeks bought +themselves wine, some with bronze, some with shining iron, some +with hides, some with live oxen, some with slaves.' The other school +maintained the negative, and distinguished between exchange on the one +hand, and purchase and sale on the other: for if an exchange were the +same thing as a sale, it would be impossible to determine which is the +thing sold, and which is the price, and both things cannot be regarded +in each of these characters. The opinion, however, of Proculus, who +affirmed that exchange was a species of contract apart by itself, and +distinct from sale, has deservedly prevailed, as it is confirmed by +other lines from Homer, and by still more cogent reasons, and this has +been admitted by preceding Emperors, and is fully stated in our Digest. + +3 As soon as the contract of sale is concluded--that is, as we have +said, as soon as the price is agreed upon, if the contract is not in +writing--the thing sold is immediately at the risk of the purchaser, +even though it has not yet been delivered to him. Accordingly, if a +slave dies, or is injured in any part of his body, or if a house is +either totally or partially burnt down, or if a piece of land is wholly +or partially swept away by a river flood, or is reduced in acreage by +an inundation, or made of less value by a storm blowing down some of +its trees, the loss falls on the purchaser, who must pay the price even +though he has not got what he purchased. The vendor is not responsible +and does not suffer for anything not due to any design or fault of his +own. If, however, after the purchase of a piece of land, it receives an +increase by alluvion, it is the purchaser who profits thereby: for the +profit ought to belong to him who also bears the risk. And if a slave +who has been sold runs away, or is stolen, without any design or fault +of the vendor, one should look to see whether the latter expressly +undertook to keep him safely until delivery was made; for, if he did +this, the loss falls upon him, though otherwise he incurs no liability: +and this is a rule which applies to all animals and other objects +whatsoever. The vendor, however, will be bound to transfer to the +purchaser all his rights of action for the recovery of the object or +damages, for, not having yet delivered it to the purchaser, he still +remains its owner, and the same holds good of the penal actions on theft +and on unlawful damage. + +4 A sale may be made conditionally as well as absolutely. The following +is an example of a conditional sale: 'If Stichus meets with your +approval within a certain time, he shall be purchased by you for so many +aurei.' + +5 If a man buys a piece of land which is sacred, religious, or public, +such as a forum or basilica, knowing it to be such, the purchase is +void. But if the vendor has fraudulently induced him to believe that +what he was buying was not sacred, or was private property, as he cannot +legally have what he contracted for, he can bring the action on purchase +to recover damages for what he has lost by the fraud; and the same rule +applies to the purchase of a free man represented by the vendor to be a +slave. + + + + +TITLE XXIV. OF LETTING AND HIRING + +The contract of hire resembles very closely the contract of sale, and +the same rules of law apply to both. Thus, as the contract of sale is +concluded as soon as the price is agreed upon, so the contract of hire +is held to be concluded as soon as the sum to be paid for the hiring is +settled, and from that moment the letter has an action on the letting, +and the hirer on the hiring. + +1 What we have said above as to a sale in which the price is left to be +fixed by a third person must be understood to apply also to a contract +of hire in which the amount to be paid for hire is left to be fixed in +the same way. Consequently, if a man gives clothes to a fuller to clean +or finish, or to a tailor to mend, and the amount of hire is not fixed +at the time, but left to subsequent agreement between the parties, a +contract of hire cannot properly be said to have been concluded, but +an action is given on the circumstances, as amounting to an innominate +contract. + +2 Again, a question often arose in connexion with the contract of hire +similar to that which was so common, namely, whether an exchange was a +sale. For instance, what is the nature of the transaction if a man gives +you the use or enjoyment of a thing, and receives in return the use or +enjoyment of another thing from you? It is now settled that this is not +a contract of hire, but a kind of contract apart by itself. Thus, if +a man had one ox, and his neighbour another, and they agreed that each +should in turn lend the other his ox for ten days to make use of, and +then one of the oxen died while working for the man to whom it did not +belong, an action cannot be brought on hire, nor on a loan for use, for +a loan for use ought to be gratuitous: but an action should be brought +as on an innominate contract. + +3 So nearly akin, indeed, is purchase and sale, to letting and hiring, +that in some cases it is a question to which class of the two a contract +belongs. As an instance may be taken those lands which are delivered +over to be enjoyed for ever, upon the terms, that is to say, that so +long as the rent is paid to the owner it shall not be lawful for the +latter to take the lands away from either the original hirer, or his +heir, or any one else to whom he or his heirs has conveyed them by sale, +gift, dowry, or in any other way whatsoever. The questionings of the +earlier lawyers, some of whom thought this kind of contract a hiring, +and others a sale, occasioned the enactment of the statute of Zeno, +which determined that this contract of emphyteusis, as it is called, was +of a peculiar nature, and should not be included under either hire or +sale, but should rest on the terms of the agreement in each particular +case: so that if anything were agreed upon between the parties, this +should bind them exactly as if it were inherent in the very nature of +the contract; while if they did not agree expressly at whose risk the +land should be, it should be at that of the owner in case of total +destruction, and at that of the tenant, if the injury were merely +partial. And these rules we have adopted in our legislation. + +4 Again, if a goldsmith agrees to make Titius rings of a certain weight +and pattern out of his own gold for, say, ten aurei, it is a question +whether the contract is purchase and sale or letting and hiring. Cassius +says the material is bought and sold, the labour let and hired; but it +is now settled that there is only a purchase and sale. But if Titius +provided the gold, and agreed to pay him for his work, the contract is +clearly a letting and hiring. + +5 The hirer ought to observe all the terms of the contract, and in the +absence of express agreement his obligations should be ascertained by +reference to what is fair and equitable. Where a man has either given or +promised for hire for the use of clothes, silver, or a beast of burden, +he is required in his charge of it to show as much care as the most +diligent father of a family shows in his own affairs; if he do this, and +still accidentally lose it, he will be under no obligation to restore +either it or its value. + +6 If the hirer dies before the time fixed for the termination of the +contract has elapsed, his heir succeeds to his rights and obligations in +respect thereof. + + + + +TITLE XXV. OF PARTNERSHIP + +A partnership either extends to all the goods of the partners, when the +Greeks call it by the special name of 'koinopraxia,' or is confined to +a single sort of business, such as the purchase and sale of slaves, oil, +wine, or grain. + +1 If no express agreement has been made as to the division of the profit +and loss, an equal division of both is understood to be intended, but +if it has, such agreement ought to be carried into effect; and there +has never been any doubt as to the validity of a contract between two +partners that one shall take twothirds of the profit and bear twothirds +of the loss, and that the remaining third shall be taken and borne +respectively by the other. + +2 If Titius and Seius agreed that the former should take twothirds of +the profits, and bear only onethird of the loss, and that the latter +should bear twothirds of the loss, and take only onethird of the +profits, it has been made a question whether such an agreement ought to +be held valid. Quintus Mucius thought such an arrangement contrary to +the very nature of partnership, and therefore not to be supported: but +Servius Sulpicius, whose opinion has prevailed, was of a different view, +because the services of a particular partner are often so valuable that +it is only just to admit him to the business on more favourable terms +than the rest. It is certain that a partnership may be formed on the +terms that one partner shall contribute all the capital, and that +the profits shall be divided equally, for a man's services are often +equivalent to capital. Indeed, the opinion of Quintus Mucius is now so +generally rejected, that it is admitted to be a valid contract that +a partner shall take a share of the profits, and bear no share in the +loss, which indeed Servius, consistently with his opinion, maintained +himself. This of course must be taken to mean that if there is a profit +on one transaction, and a loss on another, a balance should be struck, +and only the net profit be considered as profits. + +3 It is quite clear that if the shares are expressed in one event only, +as for instance in the event of profit, but not in the event of loss, or +vice versa, the same proportions must be observed, in the event of which +no mention has been made, as in the other. + +4 The continuance of partnership depends on the continuing consent of +the members; it is dissolved by notice of withdrawal from any one of +them. But of course if the object of a partner in withdrawing from the +partnership is to fraudulently keep for himself some accruing gain--for +instance, if a partner in all goods succeeds to an inheritance, and +withdraws from the partnership in order to have exclusive possession +thereof--he will be compelled to divide this gain with his partners; but +what he gains undesignedly after withdrawing he keeps to himself, and +his partner always has the exclusive benefit of whatever accrues to him +after such withdrawal. + +5 Again, a partnership is dissolved by the death of a partner, for when +a man enters into a contract of partnership, he selects as his partner +a definite person. Accordingly, a partnership based on the agreement +of even several persons is dissolved by the death of one of them, even +though several others survive, unless when the contract was made it was +otherwise agreed. + +6 So too a partnership formed for the attainment of some particular +object is terminated when that object is attained. + +7 It is clear too that a partnership is dissolved by the forfeiture of +the property of one of the partners, for such an one, as he is replaced +by a successor, is reckoned civilly dead. + +8 So again, if one of the partners is in such embarrassed circumstances +as to surrender all his property to his creditors, and all that he +possessed is sold to satisfy the public or private claims upon him, +the partnership is dissolved, though if the members still agree to be +partners, a new partnership would seem to have begun. + +9 It has been doubted whether one partner is answerable to another on +the action of partnership for any wrong less than fraud, like the bailee +in a deposit, or whether he is not suable also for carelessness, that is +to say, for inattention and negligence; but the latter opinion has now +prevailed, with this limitation, that a partner cannot be required +to satisfy the highest standard of carefulness, provided that in +partnership business he shows as much diligence as he does in his own +private affairs: the reason for this being that if a man chooses as his +partner a careless person, he has no one to blame but himself. + + + + +TITLE XXVI. OF AGENCY + +Of the contract of agency there are five modes. A man gives you a +commission either for his own exclusive benefit, or for his own and +yours together, or for that of some third person, or for his own and the +third person's, or for the third person's and yours. A commission given +simply for the sake of the agent gives rise in reality to no relation +of agency, and accordingly no obligation comes into existence, and +therefore no action. + +1 A commission is given solely for the benefit of the principal when, +for instance, the latter instructs you to manage his business, to buy +him a piece of land, or to enter into a stipulation as surety for him. + +2 It is given for your benefit and for that of your principal together +when he, for instance, commissions you to lend money at interest to a +person who borrows it for your principal's benefit; or where, on your +wishing to sue him as surety for some one else, he commissions you to +sue his principal, himself undertaking all risk: or where, at his risk, +you stipulate for payment from a person whom he substitutes for himself +as your debtor. + +3 It is given for the benefit of a third person when, for instance, some +one commissions you to look after Titius's affairs as general agent, or +to buy Titius a piece of land, or to go surety for him. + +4 It is for the benefit of the principal and a third person when, for +instance, some one instructs you to look after affairs common to himself +and Titius, or to buy an estate for himself and Titius, or to go surety +for them jointly. + +5 It is for the benefit of yourself and a third person when, for +instance, some one instructs you to lend money at interest to Titius; if +it were to lend money free of interest, it would be for the benefit of +the third person only. + +6 It is for your benefit alone if, for instance, some one commissions +you to invest your money in the purchase of land rather than to lend it +at interest, or vice versa. But such a commission is not really so +much a commission in the eye of the law as a mere piece of advice, and +consequently will not give rise to an obligation, for the law holds no +one responsible as on agency for mere advice given, even if it turns +out ill for the person advised, for every one can find out for himself +whether what he is advised to do is likely to turn out well or ill. +Consequently, if you have money lying idle in your cashbox, and on so +and so's advice buy something with it, or put it out at interest, you +cannot sue that person by the action on agency although your purchase +or loan turns out a bad speculation; and it has even been questioned, on +this principle, whether a man is suable on agency who commissions you to +lend money to Titius; but the prevalent opinion is that of Sabinus, that +so specific a recommendation is sufficient to support an action, because +(without it) you would never have lent your money to Titius at all. + +7 So too instructions to commit an unlawful or immoral act do not create +a legal obligation--as if Titius were to instigate you to steal, or to +do an injury to the property or person of some one else; and even if you +act on his instructions, and have to pay a penalty in consequence, you +cannot recover its amount from Titius. + +8 An agent ought not to exceed the terms of his commission. Thus, if +some one commissions you to purchase an estate for him, but not to +exceed the price of a hundred aurei, or to go surety for Titius up +to that amount, you ought not in either transaction to exceed the sum +specified: for otherwise you will not be able to sue him on the agency. +Sabinus and Cassius even thought that in such a case you could not +successfully sue him even for a hundred aurei, though the leaders of +the opposite school differed from them, and the latter opinion is +undoubtedly less harsh. If you buy the estate for less, you will have +a right of action against him, for a direction to buy an estate for a +hundred aurei is regarded as an implied direction to buy, if possible, +for a smaller sum. + +9 The authority given to an agent duly constituted can be annulled by +revocation before he commences to act upon it. + +10 Similarly, the death of either the principal or the agent before the +latter commences to act extinguishes the agent's authority; but equity +has so far modified this rule that if, after the death of a principal +and without having notice of his decease, an agent executes his +commission, he can sue on the agency: for otherwise the law would be +penalizing a reasonable and unavoidable ignorance. Similar to this is +the rule, that debtors who pay a manumitted steward, say, of Titius, +without notice of his manumission, are discharged from liability, though +by the strict letter of the law they are not discharged, because they +have not paid the person whom they were bound to pay. + +11 It is open to every one to decline a commission of agency, but +acceptance must be followed by execution, or by a prompt resignation, in +order to enable the principal to carry out his purpose either personally +or by the appointment of another agent. Unless the resignation is made +in such time that the principal can attain his object without suffering +any prejudice, an action will lie at his suit, in default of proof by +the agent that he could not resign before, or that his resignation, +though inconvenient, was justifiable. + +12 A commission of agency may be made to take effect from a specified +future day, or may be subject to a condition. + +13 Finally, it should be observed that unless the agent's services +are gratuitous, the relation between him and the principal will not be +agency proper, but some other kind of contract; for if a remuneration is +fixed, the contract is one of hiring. And generally we may say that in +all cases where, supposing a man's services are gratuitous, there would +be a contract of agency or deposit, there is held to be a contract of +hiring if remuneration is agreed upon; consequently, if you give clothes +to a fuller to clean or to finish, or to a tailor to mend, without +agreeing upon or promising any remuneration, you can be sued by the +action on agency. + + + + +TITLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION + +Having enumerated the different kinds of contracts, let us now examine +those obligations also which do not originate, properly speaking, in +contract, but which, as they do not arise from a delict, seem to be +quasicontractual. + +1 Thus, if one man has managed the business of another during the +latter's absence, each can sue the other by the action on uncommissioned +agency; the direct action being available to him whose business was +managed, the contrary action to him who managed it. It is clear that +these actions cannot properly be said to originate in a contract, for +their peculiarity is that they lie only where one man has come forward +and managed the business of another without having received any +commission so to do, and that other is thereby laid under a legal +obligation even though he knows nothing of what has taken place. The +reason of this is the general convenience; otherwise people might be +summoned away by some sudden event of pressing importance, and without +commissioning any one to look after and manage their affairs, the result +of which would be that during their absence those affairs would be +entirely neglected: and of course no one would be likely to attend to +them if he were to have no action for the recovery of any outlay he +might have incurred in so doing. Conversely, as the uncommissioned +agent, if his management is good, lays his principal under a legal +obligation, so too he is himself answerable to the latter for an account +of his management; and herein he must show that he has satisfied the +highest standard of carefulness, for to have displayed such carefulness +as he is wont to exercise in his own affairs is not enough, if only a +more diligent person could have managed the business better. + +2 Guardians, again, who can be sued by the action on guardianship, +cannot properly be said to be bound by contract, for there is no +contract between guardian and ward: but their obligation, as +it certainly does not originate in delict, may be said to be +quasicontractual. In this case too each party has a remedy against +the other: not only can the ward sue the guardian directly on the +guardianship, but the guardian can also sue the ward by the contrary +action of the same name, if he has either incurred any outlay in +managing the ward's property, or bound himself on his behalf, or pledged +his own property as security for the ward's creditors. + +3 Again, where persons own property jointly without being partners, by +having, for instance, a joint bequest or gift made to them, and one of +them is liable to be sued by the other in a partition suit because he +alone has taken its fruits, or because the plaintiff has laid out money +on it in necessary expenses: here the defendant cannot properly be said +to be bound by contract, for there has been no contract made between the +parties; but as his obligation is not based on delict, it may be said to +be quasicontractual. + +4 The case is exactly the same between joint heirs, one of whom is +liable to be sued by the other on one of these grounds in an action for +partition of the inheritance. + +5 So, too, the obligation of an heir to discharge legacies cannot +properly be called contractual, for it cannot be said that the legatee +has contracted at all with either the heir or the testator: yet, as +the heir is not bound by a delict, his obligation would seem to be +quasicontractual. + +6 Again, a person to whom money not owed is paid by mistake is thereby +laid under a quasicontractual obligation; an obligation, indeed, which +is so far from being contractual, that, logically, it may be said to +arise from the extinction rather than from the formation of a contract; +for when a man pays over money, intending thereby to discharge a debt, +his purpose is clearly to loose a bond by which he is already bound, not +to bind himself by a fresh one. Still, the person to whom money is thus +paid is laid under an obligation exactly as if he had taken a loan for +consumption, and therefore he is liable to a condiction. + +7 Under certain circumstances money which is not owed, and which is paid +by mistake, is not recoverable; the rule of the older lawyers on this +point being that wherever a defendant's denial of his obligation is +punished by duplication of the damages to be recovered--as in actions +under the lex Aquilia, and for the recovery of a legacy--he cannot get +the money back on this plea. The older lawyers, however, applied this +rule only to such legacies of specific sums of money as were given by +condemnation; but by our constitution, by which we have assimilated +legacies and trust bequests, we have made this duplication of damages +on denial an incident of all actions for their recovery, provided the +legatee or beneficiary is a church, or other holy place honoured for its +devotion to religion and piety. Such legacies, although paid when not +due, cannot be reclaimed. + + + + +TITLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS + +Having thus gone through the classes of contractual and quasicontractual +obligations, we must remark that rights can be acquired by you not only +on your own contracts, but also on those of persons in your power--that +is to say, your slaves and children. What is acquired by the contracts +of your slaves becomes wholly yours; but the acquisitions of children in +your power by obligations must be divided on the principle of ownership +and usufruct laid down in our constitution: that is to say, of the +material results of an action brought on an obligation made in favour +of a son the father shall have the usufruct, though the ownership is +reserved to the son himself: provided, of course, that the action is +brought by the father, in accordance with the distinction drawn in our +recent constitution. + +1 Freemen also, and the slaves of another person, acquire for you if +you possess them in good faith, but only in two cases, namely, when they +acquire by their own labour, or in dealing with your property. + +2 A usufructuary or usuary slave acquires under the same conditions for +him who has the usufruct or use. + +3 It is settled law that a slave jointly owned acquires for all his +owners in the proportion of their property in him, unless he names one +exclusively in a stipulation, or in the delivery of property to himself, +in which case he acquires for him alone; as in the stipulation 'do you +promise to convey to Titius, my master?' If it was by the direction of +one of his joint owners only that he entered into a stipulation, the +effect was formerly doubted; but now it has been settled by our decision +that (as is said above) under such circumstances he acquires for him +only who gave him the order. + + + + +TITLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED + +An obligation is always extinguished by performance of what is owed, +or by performance of something else with the creditor's assent. It is +immaterial from whom the performance proceeds--be it the debtor himself, +or some one else on his behalf: for on performance by a third person the +debtor is released, whether he knows of it or not, and even when it is +against his will. Performance by the debtor releases, besides himself, +his sureties, and conversely performance by a surety releases, besides +himself, the principal debtor. + +1 Acceptilation is another mode of extinguishing an obligation, and +is, in its nature, an acknowledgement of a fictitious performance. For +instance, if something is due to Titius under a verbal contract, and he +wishes to release it, it can be done by his allowing the debtor to ask +'that which I promised thee has thou received?' and by his replying 'I +have received it.' An acceptilation can be made in Greek, provided the +form corresponds to that of the Latin words, as 'exeis labon denaria +tosa; exo labon.' This process, as we said, discharges only obligations +which arise from verbal contract, and no others, for it seemed only +natural that where words can bind words may also loose: but a debt due +from any other cause may be transformed into a debt by stipulation, and +then released by an imaginary verbal payment or acceptilation. So, too, +as a debt can be lawfully discharged in part, so acceptilation may be +made of part only. + +2 A stipulation has been invented, commonly called Aquilian, by which +an obligation of any kind whatsoever can be clothed in stipulation form, +and then extinguished by acceptilation; for by this process any kind of +obligation may be novated. Its terms, as settled by Gallus Aquilius, +are as follow: 'Whatever, and on whatsoever ground, you are or shall +be compellable to convey to or do for me, either now or on a future +specified day, and for whatsoever I have or shall have against you an +action personal or real, or any extraordinary remedy, and whatsoever of +mine you hold or possess naturally or civilly, or would possess, or now +fail to possess through some wilful fault of your own--as the value of +each and all of these claims Aulua Agerius stipulated for the payment +of such and such a sum, and payment was formally promised by Numerius +Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast +thou received the whole of what I have today engaged, by the Aquilian +stipulation, to pay thee?' to which Aulus Agerius replied 'I have it, +and account it received.' + +3 Novation is another mode of extinguishing an obligation, and takes +place when you owe Seius a sum, and he stipulates for payment thereof +from Titius; for the intervention of a new person gives birth to a new +obligation, and the first obligation is transformed into the second, and +ceases to exist. Sometimes indeed the first stipulation is avoided by +novation even though the second is of no effect: for instance, if you +owe Titius a sum, and he stipulates for payment thereof from a pupil +without his guardian's authority, he loses his claim altogether, for +you, the original debtor, are discharged, and the second obligation is +unenforceable. The same does not hold if one stipulate from a slave; for +then the former debtor continues bound as fully as if one had stipulated +from no one. But when the original debtor is the promisor, a second +stipulation produces a novation only if it contains something new--if +a condition, for instance, or a term, or a surety be added, or taken +away--though, supposing the addition of a condition, we must be +understood to mean that a novation is produced only if the condition +is accomplished: if it fails, the prior obligation continues in force. +Among the older lawyers it was an established rule, that a novation was +effected only when it was with that intention that the parties entered +into the second obligation; but as this still left it doubtful when +the intention was present and when absent, various presumptions were +established as to the matter by different persons in different cases. +We therefore issued our constitution, enacting most clearly that no +novation shall take place unless the contracting parties expressly state +their intention to be the extinction of the prior obligation, and that +in default of such statement, the first obligation shall subsist, and +have the second also added to it: the result being two obligations +resting each on its own independent ground, as is prescribed by the +constitution, and as can be more fully ascertained by perusing the same. + +4 Moreover, those obligations which are contracted by consent alone are +dissolved by a contrary agreement. For instance, if Titius and Seius +agree that the latter shall buy an estate at Tusculum for a hundred +aurei, and then before execution on either side by payment of the price +or delivery of the estate they arrange to abandon the sale, they are +both released. The case is the same with hire and the other contracts +which are formed by consent alone. + + + + +BOOK IV. + + + + +TITLE I. OF OBLIGATIONS ARISING FROM DELICT + +Having treated in the preceding Book of contractual and quasicontractual +obligations, it remains to inquire into obligations arising from delict. +The former, as we remarked in the proper place, are divided into four +kinds; but of these latter there is but one kind, for, like obligations +arising from real contracts, they all originate in some act, that is to +say, in the delict itself, such as a theft, a robbery, wrongful damage, +or an injury. + +1 Theft is a fraudulent dealing with property, either in itself, or in +its use, or in its possession: an offence which is prohibited by natural +law. + +2 The term furtum, or theft, is derived either from furvum, meaning +'black,' because it is effected secretly and under cover, and usually by +night: or from fraus, or from ferre, meaning 'carrying off'; or from the +Greek word phor, thief, which indeed is itself derived from pherein, to +carry off. + +3 There are two kinds of theft, theft detected in the commission, and +simple theft: the possession of stolen goods discovered upon search, and +the introduction of stolen goods, are not (as will appear below) so +much specific kinds of theft as actionable circumstances connected +with theft. A thief detected in the commission is termed by the Greeks +ep'autophoro; in this kind is included not only he who is actually +caught in the act of theft, but also he who is detected in the place +where the theft is committed; for instance, one who steals from a house, +and is caught before he has got outside the door; or who steals olives +from an olive garden, or grapes from a vineyard, and is caught while +still in the olive garden or vineyard. And the definition of theft +detected in the commission must be even further extended, so as to +include the thief who is caught or even seen with the stolen goods still +in his hands, whether the place be public or private, and whether the +person who sees or catches him be the owner of the property, or some +third person, provided he has not yet escaped to the place where he +intended to take and deposit his booty: for if he once escapes there, +it is not theft detected in the commission, even if he be found with the +stolen goods upon him. What is simple theft is clear from what has +been said: that is to say, it is all theft which is not detected in the +commission. + +4 The offence of discovery of stolen goods occurs when a person's +premises are searched in the presence of witnesses, and the stolen +property is found thereon; this makes him liable, even though innocent +of theft, to a special action for receiving stolen goods. To introduce +stolen goods is to pass them off to a man, on whose premises they are +discovered, provided this be done with the intent that they shall be +discovered on his premises rather than on those of the introducer. The +man on whose premises they are found may sue the latter, though innocent +of theft, in an action for the introduction of stolen goods. There is +also an action for refusal of search, available against him who prevents +another who wishes to look in the presence of witnesses for stolen +property; and finally, by the action for nonproduction of stolen goods, +a penalty is imposed by the praetor's edict on him who has failed to +produce stolen property which is searched for and found on his premises. +But the lastnamed actions, namely, those for receiving stolen goods, for +introducing them, for refusal of search, and for nonproduction, have now +become obsolete: for the search for such property is no longer made in +the old fashion, and accordingly these actions went out of use also. +It is obvious, however, that any one who knowingly receives and hides +stolen property may be sued by the action for simple theft. + +5 The penalty for theft detected in the commission is four times the +value, and for simple theft twice the value, of the property stolen, +whether the thief be a slave or a free person. + +6 Theft is not confined to carrying away the property of another with +the intent of appropriation, but comprises also all corporeal dealing +with the property of another against the will of the owner. Thus, for +a pawnee to use the thing which he has in pawn, or to use a thing +committed to one's keeping as a deposit, or to put a thing which is lent +for use to a different use than that for which it was lent, is theft; to +borrow plate, for instance, on the representation that the borrower +is going to entertain his friends, and then to carry it away into the +country: or to borrow a horse for a drive, and then to take it out of +the neighbourhood, or like the man in the old story, to take it into +battle. + +7 With regard, however, to those persons who put a thing lent for use to +a different purpose than the lender contemplated, the rule is that they +are guilty of theft only if they know it to be contrary to the will of +the owner, and that if he had notice he would refuse permission; but +if they believe that he would give permission, it is not theft: and the +distinction is just, for there is no theft without unlawful intention. + +8 It is also said not to be theft if a man turns a thing lent for use to +a use other than he believes its owner would sanction, though in point +of fact its owner is consenting. Whence arose the following question: +if Antoninus solicits the slave of Peri to steal property of the latter, +and convey it to him, and the slave informs Peri of it, who, wishing +to detect Antoninus in the very act, allows the slave to convey the +property to him; can an action of theft, or for corrupting the slave, or +neither, be maintained against Antoninus? The case was submitted to us, +and we examined the conflicting opinions of the earlier jurists on the +matter: some of whom thought that neither action lay, and others, that +Peri might sue on theft only. But we, in order to put an end to such +quibbles, have enacted by our decision that in such case both the action +on theft and that for corrupting a slave shall lie. It is true that the +slave has not been corrupted by the advances made to him, so that the +case does not come within the rules which introduced the action for +such corruption: yet the wouldbe corrupter's intention was to make him +dishonest, so that he is liable to a penal action, exactly as if the +slave had actually been corrupted, lest his immunity from punishment +should encourage others to perpetrate a similar wrong on a slave less +strong to resist temptation. + +9 A free man too may be the subject of a theft--for instance, a child in +my power, if secretly removed from my control. + +10 So too a man sometimes steals his own property--for instance, a +debtor who purloins the goods which he has pledged to a creditor. + +11 Theft may be chargeable on a person who is not the perpetrator; on +him, namely, by whose aid and abetment a theft is committed. Among such +persons we may mention the man who knocks money out of your hand for +another to pick up, or who stands in your way that another may snatch +something from you, or scatters your sheep or your oxen, that another +may steal them, like the man in the old books, who waved a red cloth to +frighten a herd. If the same thing were done as a frolic, without the +intention of assisting a theft, the proper action is not theft, but on +the case. Where, however, Titius commits theft with the aid of Maevius, +both are liable to an action on theft. A man, too, is held to have aided +and abetted a theft who places a ladder under a window, or breaks open +a window or a door, in order that another may steal, or who lends tools +for the breaking of them open, or a ladder to place under a window, if +he knows the object for which they are borrowed. It is clear that a +man is not liable on theft, who, though he advises and instigates an +offence, does not actually aid in its commission. + +12 If a child in power, or a slave, steal property of his father or +master, it is theft, and the property is deemed stolen, so that no one +can acquire it by usucapion until it has returned into the hands of the +owner; but no action will lie on the theft, because between a son in +power and his father, or between a slave and his master, no action will +lie on any ground whatsoever. But if the offender is aided and abetted +by a third person, the latter is liable to an action on theft, because a +theft has in fact been committed, and by his aid and abetment. + +13 The action on theft will lie at the suit of any person interested in +the security of the property, even though he be not its owner: indeed, +even the owner cannot maintain the action unless he suffers damage from +the loss. + +14 Hence, when a pawn is stolen the pawnee can sue, even though his +debtor be perfectly able to pay the debt; for it is more advantageous +to him to rely on the pledge, than to bring a personal action: and this +rule is so unbending that even the pawnor who steals a pawn is suable +for theft by the pawnee. + +15 So, if clothes are delivered to be cleaned or finished or mended for +a certain remuneration, and then are stolen, it is the fuller or tailor +who can sue on the theft, and not the owner; for the owner suffers +nothing by the loss, having the action of letting against the fuller or +tailor for the recovery of his property. Similarly a purchaser in good +faith, even though a good title as owner is not given to him, can bring +the action of theft if the property is stolen, exactly like the pawnee. +The action is, however, not maintainable at the suit of a fuller or +tailor, unless he is solvent, that is to say, unless he is able to fully +indemnify the owner; if he is insolvent, the owner cannot recover from +him, and so can maintain an action against the thief, being, on this +hypothesis, interested in the recovery of the property. Where the fuller +or tailor is only partly instead of wholly solvent the rule is the same. + +16 The older lawyers held that what has been said of the fuller and +tailor applied also to the borrower for use, on the ground that as +the remuneration which the fuller receives makes him responsible for +custody, so the advantages which the borrower derives from the use +requires him to keep it safely at his peril. Our wisdom, however, has +amended the law in this particular in our decisions, by allowing the +owner the option of suing either the borrower by action on the loan, or +the thief by action of theft; though when his choice has been determined +he cannot change his mind, and resort to the other action. If he prefers +to sue the thief, the borrower is absolutely released from liability; +but if he proceeds against the borrower, he cannot in any way himself +sue the thief on the stealing, though this may be done by the borrower, +who is defendant in the other action, provided that the owner knew, at +the time when he began his action against the borrower, that the thing +had been stolen. If he is ignorant of this, or even if he is merely +doubtful whether the borrower still has the property in his possession +or not, and sues him on the loan, he may, on subsequently learning the +facts, and if he wishes to drop the action which he has commenced, and +sue the thief instead, adopt this course, in which case no obstacle is +to be thrown in his way, because it was in ignorance that he took action +and sued the borrower on the loan. If, however, the owner has been +indemnified by the borrower, in no case can he bring the action of theft +against the thief, as his rights of action pass to the person who has +compensated him for the loss of his property. Conversely it is clear, +that if, at the outset, the owner began an action on the loan against +the borrower, not knowing that the property had been stolen, and +subsequently, on learning this, proceeded against the thief instead, +the borrower is absolutely released from liability, whatever may be the +result of the owner's action against the thief; the rule being the same, +whether the borrower be wholly or only partially insolvent. + +17 As a depositary is not answerable for the safe keeping of the thing +deposited, but only for fraud, and, if it is stolen, is not compellable +to make restitution by action of deposit, he has no interest if it is +lost, and therefore the action of theft is maintainable only by the +depositor. + +18 Finally, it has been a question whether a child below the age of +puberty, who carries away the property of another, is guilty of theft. +The answer is that, as theft depends on intention, obligation by theft +is not incurred unless the child is near puberty, and so understands its +delinquency. + +19 The object of the action on theft, whether it be for double or +quadruple the value of the goods stolen, is merely the recovery of the +penalty; to recover the goods themselves or their value the owner has +an independent remedy by vindication or condiction. The former is +the proper remedy when it is known who is in possession of the goods, +whether this be the thief or any one else: the latter lies against the +thief or his heir, whether in possession of the stolen property or not. + + + + +TITLE II. OF ROBBERY + +Robbery is chargeable also as theft; for who deals with the property +of another more against that other's will than the robber? And thus the +description of the robber as an audacious thief is a good one. However, +as a special remedy for this offence the praetor has introduced the +action for robbery, or rapine with violence, which may be brought within +a year for four times the value, after a year for simple damages, and +while lies even when only a single thing of the slightest value has been +taken with violence. This fourfold value, however, is not all penalty, +nor is there an independent action for the recovery of the property or +its value, as we observed was the case in the action of theft detected +in the commission; but the thing or its value is included in the +fourfold, so that, in point of fact, the penalty is three times the +value of the property, and this whether the robber be taken in the act +or not; for it would be absurd to treat a robber more lightly than one +who carries off property merely secretly. + +1 This action is maintainable only where the robbery is attended with +wrongful intention; consequently, if a man by mistake thought that +property was his own, and, in his ignorance of law, forcibly carried it +off in the belief that it was lawful for an owner to take away, even by +force, a thing belonging to himself from a person in whose possession it +was, he cannot be held liable to this action; and similarly on principle +he would not in such a case be suable for theft. Lest, however, robbers, +under the cloak of such a plea, should discover a method of gratifying +a grasping habit with impunity, the law has been amended upon this point +by imperial constitutions, by which it is enacted that it shall not be +lawful for any one to forcibly carry off movable property, inanimate or +animate, even though he believe it to belong to him; and that whosoever +disobeys this shall forfeit the property, if, in fact, it be his, and if +it be not, shall restore it, and along with it its value in money. +And by the said constitutions it is also declared that this provision +relates not only to movables (of which alone robbery can be committed), +but also to forcible entries on land and houses, so as to deter men from +all violent seizing upon property whatsoever under the cloak of such +excuses. + +2 In order to support this action it is not necessary that the goods +of which robbery has been committed should belong to the plaintiff, +provided they were taken from among his property. Thus, if a thing be +let, or lent, or pledged to Titius, or even deposited with him under +such circumstances that he has an interest in its not being carried +off--for instance, by his having undertaken the entire responsibility +for its safe custody;--or if he possesses it in good faith, or has a +usufruct or any other right in it whereby he suffers loss or incurs +liability through its being forcibly taken from him, the action will +be maintainable by him; not necessarily in order to restore to him the +ownership, but only to compensate him for what it is alleged he has lost +by its being taken from his goods or withdrawn from his means. In fact, +it may be said generally that where, supposing property to be taken +secretly, the action of theft will lie, the action on robbery will lie +at suit of the same person, if it be taken with violence. + + + + +TITLE III. OF THE LEX AQUILIA + +Unlawful damage is actionable under the lex Aquilia, whose first chapter +provides that if a slave of another man, or a quadruped from his flocks +or herds, be unlawfully killed, the offender shall pay to the owner +whatever was the highest value thereof within the year next immediately +preceding. + +1 From the fact that this enactment does not speak of quadrupeds simply, +but only of such quadrupeds as are usually included under the idea of +flocks and herds, it is to be inferred that it has no application to +wild animals or to dogs, but only to such beasts as can properly be said +to graze in herds, namely horses, mules, asses, oxen, sheep, and goats. +It is settled, too, that swine come under its operation, for they are +comprehended in 'herds' because they feed in this manner; thus Homer in +his Odyssey, as quote by Aelius Marcianus in his Institutes, says, You +will find him sitting among his swine, and they are feeding by the Rock +of Corax, over against the spring Arethusa.' + +2 To kill unlawfully is to kill without any right; thus a man who kills +a robber is not liable to this action, if he could in no other way +escape the danger by which he was threatened. + +3 So, too, where one man kills another by misadventure, he is not liable +under this statute, provided there is no fault or carelessness on his +part; otherwise it is different, for under this statute carelessness is +as punishable as wilful wrongdoing. + +4 Accordingly, if a man, while playing or practising with javelins, runs +your slave through as he passes by, a distinction is drawn. If it be +done by a soldier in his exercising ground, that is to say, where such +practice is usually conducted, he is in no way to blame; but if it be +done by some one else, his carelessness will make him liable; and so +it is with the soldier, if he do it in some place other than that +appropriated to military exercises. + +5 So, too, if a man is trimming a tree, and kills your slave as he +passes by with a bough which he lets fall, he is guilty of negligence, +if it is near a public way, or a private path belonging to a neighbour, +and he does not call out to give people warning; but if he calls out, +and the slave takes no pains to get out of the way, he is not to blame. +Nor would such a man be liable, if he was cutting a tree far away from +a road, or in the middle of a field, even if he did not call out; for +strangers had no business to be there. + +6 Again, if a surgeon operates on your slave, and then neglects +altogether to attend to his cure, so that the slave dies in consequence, +he is liable for his carelessness. + +7 Sometimes, too, unskilfulness is undistinguishable from +carelessness--as where a surgeon kills your slave by operating upon him +unskilfully, or by giving him wrong medicines; + +8 and similarly, if your slave is run over by a team of mules, which +the driver has not enough skill to hold, the latter is suable for +carelessness; and the case is the same if he was simply not strong +enough to hold them, provided they could have been held by a stronger +man. The rule also applies to runaway horses, if the running away is due +to the rider's deficiency either in skill or strength. + +9 The meaning of the words of the statute 'whatever was of the highest +value thereof within the year' is that if any one, for instance, kills +a slave of yours, who at the moment of his death is lame, or maimed, or +blind of one eye, but within the year was sound and worth a price, the +person who kills him is answerable not merely for his value at the time +of his death, but for his highest value within the year. It is owing to +this that the action under this statute is deemed to be penal, because +a defendant is sometimes bound to pay a sum not merely equivalent to the +damage he has done, but far in excess of it; and consequently, the right +of suing under the statute does not pass against the heir, though it +would have done so if the damages awarded had never exceeded the actual +loss sustained by the plaintiff. + +10 By juristic construction of the statute, though not so enacted in its +terms, it has been settled that one must not only take account, in the +way we have described, of the value of the body of the slave or animal +killed, but must also consider all other loss which indirectly falls +upon the plaintiff through the killing. For instance, if your slave +has been instituted somebody's heir, and, before he has by your order +accepted, he is slain, the value of the inheritance you have missed must +be taken into consideration; and so, too, if one of a pair of mules, +or one of four chariot horses, or one of a company of slave players is +killed, account is to be taken not only of what is killed, but also of +the extent to which the others have been depreciated. + +11 The owner whose slave is killed has the option of suing the wrongdoer +for damages in a private action under the lex Aquilia, or of accusing +him on a capital charge by indictment. + +12 The second chapter of the lex Aquilia is now obsolete; + +13 the third makes provision for all damage which is not covered by the +first. Accordingly, if a slave or some quadruped which comes within +its terms, is wounded, or if a quadruped which does not come within its +terms, such as a dog or wild animal, is wounded or killed, an action is +provided by this chapter; and if any other animal or inanimate thing +is unlawfully damaged, a remedy is herein afforded; for all burning, +breaking, and crushing is hereby made actionable, though, indeed, the +single word 'breaking' covers all these offences, denoting as it does +every kind of injury, so that not only crushing and burning, but any +cutting, bruising, spilling, destroying, or deteriorating is hereby +denominated. Finally, it has been decided that if one man mixes +something with another's win or oil, so as to spoil its natural +goodness, he is liable under this chapter of the statute. + +14 It is obvious that, as a man is liable under the first chapter +only where a slave or quadruped is killed by express design or through +negligence on his part, so, too, he is answerable for all other damage +under this chapter only where it results from some wilful act or +carelessness of his. Under this chapter, however, it is not the highest +value which the thing had within a year, but that which it had within +the last thirty days, which is chargeable on the author of the mischief. + +15 It is true that here the statute does not expressly say 'the highest +value,' but Sabinus rightly held that the damages must be assessed as +if the words 'highest value' occurred also in this chapter; the Roman +people, who enacted this statute on the proposal of Aquilius the +tribune, having thought it sufficient to use them in the first chapter +only. + +16 It is held that a direct action lies under this statute only when the +body of the offender is substantially the instrument of mischief. If a +man occasions loss to another in any other way, a modified action will +usually lie against him; for instance, if he shuts up another man's +slave or quadruped, so as to starve him or it to death, or drives his +horse so hard as to knock him to pieces, or drives his cattle over a +precipice, or persuades his slave to climb a tree or go down a well, +who, in climbing the one or going down the other, is killed or injured +in any part of his body, a modified action is in all these cases given +against him. But if a slave is pushed off a bridge or bank into a +river, and there drowned, it is clear from the facts that the damage +is substantially done by the body of the offender, who is consequently +liable directly under the lex Aquilia. If damage be done, not by the +body or to a body, but in some other form, neither the direct nor the +modified Aquilian action will lie, though it is held that the wrongdoer +is liable to an action on the case; as, for instance, where a man is +moved by pity to loose another's slave from his fetters, and so enables +him to escape. + + + + +TITLE IV. OF INJURIES + +By injury, in a general sense, is meant anything which is done without +any right. Besides this, it has three special significations; +for sometimes it is used to express outrage, the proper word for +which--contumely--is derived from the verb 'to contemn,' and so is +equivalent to the Greek 'ubris': sometimes it means culpable negligence, +as where damage is said to be done (as in the lex Aquilia) 'with +injury,' where it is equivalent to the Greek 'adikema'; and sometimes +iniquity and injustice, which the Greeks express by 'adikia'; thus a +litigant is said to have received an 'injury' when the praetor or judge +delivers an unjust judgement against him. + +1 An injury or outrage is inflicted not only by striking with the +first, a stick, or a whip, but also by vituperation for the purpose of +collecting a crowd, or by taking possession of a man's effects on +the ground that he was in one's debt; or by writing, composing, or +publishing defamatory prose or verse, or contriving the doing of any of +these things by some one else; or by constantly following a matron, or +a young boy or girl below the age of puberty, or attempting anybody's +chastity; and, in a word, by innumerable other acts. + +2 An outrage or injury may be suffered either in one's own person, or +in the person of a child in one's power, or even, as now is generally +allowed, in that of one's wife. Accordingly, if you commit an 'outrage' +on a woman who is married to Titius, you can be sued not only in her own +name, but also in those of her father, if she be in his power, and of +her husband. But if, conversely, it be the husband who is outraged, the +wife cannot sue; for wives should be protected by their husbands, not +husbands by their wives. Finally, a father-in-law may sue on an outrage +committed on his daughterinlaw, if the son to whom she is married is in +his power. + +3 Slaves cannot be outraged themselves, but their master may be outraged +in their person, though not by all the acts by which an outrage might be +offered to him in the person of a child or wife, but only by aggravated +assaults or such insulting acts as clearly tend to dishonour the master +himself: for instance, by flogging the slave, for which an action lies; +but for mere verbal abuse of a slave, or for striking him with the fist, +the master cannot sue. + +4 If an outrage is committed on a slave owned by two or more persons +jointly, the damages to be paid to these severally should be assessed +with reference not to the shares in which they own him, but to their +rank or position, as it is to the reputation and not to the property +that the injury is done; + +5 and if an outrage is committed on a slave belonging to Maevius, but +in whom Titius has a usufruct, the injury is deemed to be done to the +former rather than to the latter. + +6 But if the person outraged is a free man who believes himself to be +your slave, you have no action unless the object of the outrage was +to bring you into contempt, though he can sue in his own name. The +principle is the same when another man's slave believes himself to +belong to you; you can sue on an outrage committed on him only when its +object is to bring contempt upon you. + +7 The penalty prescribed for outrage in the Twelve Tables was, for a +limb disabled, retaliation, for a bone merely broken a pecuniary mulct +proportionate to the great poverty of the age. The praetors, however, +subsequently allowed the person outraged to put his own estimate on the +wrong, the judge having a discretion to condemn the defendant either in +the sum so named by the plaintiff, or in a less amount; and of these +two kinds of penalties that fixed by the Twelve Tables is now obsolete, +while that introduced by the praetors, which is also called 'honorary,' +is most usual in the actual practice of the courts. Thus the pecuniary +compensation awarded for an outrage rises and falls in amount according +to the rank and character of the plaintiff, and this principle is +not improperly followed even where it is a slave who is outraged; the +penalty where the slave is a steward being different from what it is +when he is an ordinary menial, and different again when he is condemned +to wear fetters. + +8 The lex Cornelia also contains provisions as to outrages, and +introduced an action on outrage, available to a plaintiff who alleges +that he has been struck or beaten, or that a forcible entry has been +made upon his house; the term 'his house' including not only one which +belongs to him and in which he lives but also one which is hired by him, +or in which he is received gratuitously as a guest. + +9 An outrage becomes 'aggravated' either from the atrocious character of +the act, as where a man is wounded or beaten with clubs by another; or +from the place where it is committed, for instance, in the theatre or +forum, or in full sight of the praetor; or from the rank of the person +outraged,--if it be a magistrate, for instance, or if a senator be +outraged by a person of low condition, or a parent by his child, or a +patron by his freedman; for such an injury done to a senator, a parent, +or a patron has a higher pecuniary compensation awarded for it than one +done to a mere stranger, or to a person of low condition. Sometimes too +the position of the wound makes an outrage aggravated, as where a man +is struck in the eye. Whether the person on whom such an outrage is +inflicted is independent or in the power of another is almost entirely +immaterial, it being considered aggravated in either case. + +10 Finally, it should be observed that a person who has been outraged +always has his option between the civil remedy and a criminal +indictment. If he prefers the former, the penalty which is imposed +depends, as we have said, on the plaintiff's own estimate of the wrong +he has suffered; if the latter, it is the judge's duty to inflict an +extraordinary penalty on the offender. It should be remembered, however, +that by a constitution of Zeno persons of illustrious or still higher +rank may bring or defend such criminal actions on outrage by an agent, +provided they comply with the requirements of the constitution, as may +be more clearly ascertained by a perusal of the same. + +11 Liability to an action on outrages attaches not only to him who +commits the act,--the striking of a blow, for instance--but also +to those who maliciously counsel or abet in the commission, as, for +instance, to a man who gets another struck in the face. + +12 The right of action on outrage is lost by condonation; thus, if a man +be outraged, and takes no steps to obtain redress, but at once lets +the matter, as it is said, slip out of his mind, he cannot subsequently +alter his intentions, and resuscitate an affront which he has once +allowed to rest. + + + + +TITLE V. OF QUASI-DELICTAL OBLIGATIONS + +The obligation incurred by a judge who delivers an unjust or partial +decision cannot properly be called delictal, and yet it does not arise +from contract; consequently, as he cannot but be held to have done a +wrong, even though it may be due to ignorance, his liability would seem +to be quasidelictal, and a pecuniary penalty will be imposed on him at +the judge's discretion. + +1 Another case of quasidelictal obligation is that of a person from +whose residence, whether it be his own, or rented, or gratuitously lent +him, anything is thrown or poured out whereby another is injured; the +reason why his liability cannot properly be called delictal being that +it is usually incurred through the fault of some other person, such as +a slave or freedman. Of a similar character is the obligation of one who +keeps something placed or hung over a public way, which might fall and +injure any one. In this last case the penalty has been fixed at ten +aurei; in that of things thrown or poured out of a dwelling-house the +action is for damages equivalent to double the loss sustained, though +if a free man be thereby killed the penalty is fixed at fifty aurei, and +even if he be merely injured he can sue for such damages as the judge +shall in his discretion award; and here the latter should take into +account the medical and other expenses of the plaintiff's illness, as +well as the loss which he has sustained through being disabled from +work. + +2 If a son in power lives apart from his father, and anything is thrown +or poured out of his place of residence, or if he has anything so placed +or hung as to be dangerous to the public, it is the opinion of Julian +that no action lies against the father, but that the son should be made +sole defendant; and the same principle should be applied to a son in +power who is made a judge, and delivers an unjust or partial decision. + +3 Similarly shipowners, inn and stable keepers are liable as on a +quasi-delict for wilful damage or theft committed in their ships, inns, +or stables, provided the act be done by some or one of their servants +there employed, and not by themselves; for the action which is given in +such cases is not based on contract, and yet as they are in some sense +at fault for employing careless or dishonest servants, their liability +would seem to be quasidelictal. In such circumstances the action which +is given is on the case, and lies at suit of the injured person's heir, +though not against the heir of the shipowner, inn or stable keeper. + + + + +TITLE VI. OF ACTIONS + +The subject of actions still remains for discussion. An action is +nothing else than the right of suing before a judge for what is due to +one. + +1 The leading division of all actions whatsoever, whether tried before +a judge or a referee, is into two kinds, real and personal; that is to +say, the defendant is either under a contractual or delictal obligation +to the plaintiff, in which case the action is personal, and the +plaintiff's contention is that the defendant ought to convey something +to, or do something for him, or of a similar nature; or else, though +there is no legal obligation between the parties, the plaintiff asserts +a ground of action against some one else relating to some thing, in +which case the action is real. Thus, a man may be in possession of some +corporeal thing, in which Titius claims a right of property, and which +the possessor affirms belongs to him; here, if Titius sues for its +recovery, the action is real. + +2 It is real also if a man asserts that he has a right of usufruct over +a landed estate or a house, or a right of going or driving cattle over +his neighbour's land, or of drawing water from the same; and so too are +the actions relating to urban servitudes, as, for instance, where a man +asserts a right to raise his house, to have an uninterrupted prospect, +to project some building over his neighbour's land, or to rest the beams +of his own house on his neighbour's wall. Conversely, there are actions +relating to usufructs, and to rustic and urban servitudes, of a contrary +import, which lie at the suit of plaintiffs who deny their opponent's +right of usufruct, of going or driving cattle, of drawing water, of +raising their house, or having an uninterrupted view, of projecting some +building over the plaintiff's land, or of resting the beams of their +house in the plaintiff's wall. These actions too are real, but negative, +and never occur in disputes as to corporeal things, in which the +plaintiff is always the party out of possession; and there is no +action by which the possessor can (as plaintiff) deny that the thing in +question belongs to his adversary, except in one case only, as to which +all requisite information can be gathered from the fuller books of the +Digest. + +3 The actions which have hitherto been mentioned, and others which +resemble them, are either of statutory origin, or at any rate belong to +the civil law. There are other actions, however, both real and personal, +which the praetor has introduced in virtue of his jurisdiction, and of +which it is necessary to give examples. For instance, he will usually, +under the circumstances to be mentioned, allow a real action to be +brought with a fictitious allegation--namely, that the plaintiff has +acquired a title by usucapion where this, in fact, is not the case; +or, conversely, he will allow a fictitious plea on the part of the +defendant, to the effect that the plaintiff has not acquired such a +title where, in point of fact, he has. + +4 Thus, if possession of some object be delivered on a ground sufficient +to legally transfer the same--for instance, under a sale or gift, as +part of a dowry, or as a legacy--and the transferee has not yet acquired +a complete title by usucapion, he has no direct real action for its +recovery, if he accidentally loses possession, because by the civil law +a real action lies at the suit of the owner only. But as it seemed hard +that in such a case there should be no remedy, the praetor introduced +an action in which the plaintiff, who has lost possession, fictitiously +allege that he has acquired a full title by usucapion, and thus claims +the thing as his own. This is called the Publician action, because it +was first placed in the Edict by a praetor called Publicius. + +5 Conversely, if a person, while absent in the service of the State, or +while in the power of an enemy, acquires by usucapion property belonging +to some one resident at home, the latter is allowed, within a year +from the cessation of the possessor's public employment, to sue for +a recovery of the property by a rescission of the usucapion: by +fictitiously alleging, in other words, that the defendant has not thus +acquired it; and the praetor from motives of equity allows this kind of +action to be brought in certain other cases, as to which information may +be gathered from the larger work of the Digest or Pandects. + +6 Similarly, if a person conveys away his property in fraud of +creditors, the latter, on obtaining from the governor of the province a +decree vesting in them possession of the debtor's estate, are allowed to +avoid the conveyance, and sue for the recovery of the property; in other +words, to allege that the conveyance has never taken place, and that the +property consequently still belongs to the debtor. + +7 Again, the Servian and quasi-Servian actions, the latter of which +is also called 'hypothecary,' are derived merely from the praetor's +jurisdiction. The Servian action is that by which a landlord sues +for his tenant's property, over which he has a right in the nature +of mortgage as security for his rent; the quasi-Servian is a similar +remedy, open to every pledgee or hypothecary creditor. So far then as +this action is concerned, there is no difference between a pledge and a +hypothec: and indeed whenever a debtor and a creditor agree that certain +property of the former shall be the latter's security for his debt, the +transaction is called a pledge or a hypothec indifferently. In other +points, however, there is a distinction between them; for the term +'pledge' is properly used only where possession of the property in +question is delivered to the creditor, especially if that property be +movable: while a hypothec is, strictly speaking, such a right created by +mere agreement without delivery of possession. + +8 Besides these, there are also personal actions which the praetor has +introduced in virtue of his jurisdiction, for instance, that brought +to enforce payment of money already owed, and the action on a banker's +acceptance, which closely resembled it. By our constitution, however, +the first of these actions has been endowed with all the advantages +which belonged to the second, and the latter, as superfluous, has +therefore been deprived of all force and expunged from our legislation. +To the praetor is due also the action claiming an account of the +peculium of a slave or child in power, that in which the issue is +whether a plaintiff has made oath, and many others. + +9 The action brought to enforce payment of money already owed is +the proper remedy against a person who, by a mere promise, without +stipulation, has engaged to discharge a debt due either from himself or +from some third party. If he has promised by stipulation, he is liable +by the civil law. + +10 The action claiming an account of a peculium is a remedy introduced +by the praetor against a master or a father. By strict law, such persons +incur no liability on the contracts of their slaves or children in +power; yet it is only equitable that damages should still be recoverable +against them to the extent of the peculium, in which children in power +and slaves have a sort of property. + +11 Again, if a plaintiff, on being challenged by the defendant, deposes +on oath that the latter owes him the money which is the object of the +action, and payment is not made to him, the praetor most justly grants +to him an action in which the issue is, not whether the money is owing, +but whether the plaintiff has sworn to the debt. + +12 There is also a considerable number of penal actions which the +praetor has introduced in the exercise of his jurisdiction; for +instance, against those who in any way injure or deface his album; +or who summon a parent or patron without magisterial sanction; or who +violently rescue persons summoned before himself, or who compass such a +rescue; and others innumerable. + +13 'Prejudicial' actions would seem to be real, and may be exemplified +by those in which it is inquired whether a man is free born, or has +become free by manumission, or in which the question relates to a +child's paternity. Of these the first alone belongs to the civil law: +the others are derived from the praetor's jurisdiction. + +14 The kinds of action having been thus distinguished, it is clear that +a plaintiff cannot demand his property from another in the form 'if it +be proved that the defendant is bound to convey.' It cannot be said that +what already belongs to the plaintiff ought to be conveyed to him, for +conveyance transfers ownership, and what is his cannot be made more his +than it is already. Yet for the prevention of theft, and multiplication +of remedies against the thief, it has been provided that, besides the +penalty of twice or four times the value of the property stolen, the +property itself, or its value, may be recovered from the thief by a +personal action in the form 'if it be proved that the defendant ought to +convey,' as an alternative for the real action which is also available +to the plaintiff, and in which he asserts his ownership of the stolen +property. + +15 We call a real action a 'vindication,' and a personal action, in +which the contention is that some property should be conveyed to us, or +some service performed for us, a 'condiction,' this term being derived +from condicere, which has an old meaning of 'giving notice.' To call +a personal action, in which the plaintiff contends that the defendant +ought to convey to him, a condiction, is in reality an abuse of the +term, for nowadays there is no such notice as was given in the old +action of that name. + +16 Actions may be divided into those which are purely reparative, those +which are purely penal, and those which are mixed, or partly reparative, +partly penal. + +17 All real actions are purely reparative. Of personal actions those +which spring from contract are nearly all of the same character; for +instance, the actions on loans of money, or stipulations, on loans for +use, on deposit, agency, partnership, sale, and hire. If, however, +the action be on a deposit occasioned by a riot, a fire, the fall of a +building, or a shipwreck, the praetor enables the depositor to recover +double damages, provided he sues the bailee in person; he cannot recover +double damages from the bailee's heir, unless he can prove personal +fraud against the latter. In these two cases the action, though on +contract, is mixed. + +18 Actions arising from delict are sometimes purely penal, sometimes +are partly penal and partly reparative, and consequently mixed. The sole +object of the action of theft is the recovery of a penalty, whether +that penalty be four times the value of the property stolen, as in +theft detected in the commission, or only twice that value, as in simple +theft. The property itself is recoverable by an independent action in +which the person from whom it has been stolen claims it as his own, +whether it be in the possession of the thief himself or of some third +person; and against the thief himself he may even bring a condiction, to +recover the property or its value. + +19 The action on robbery is mixed, for the damages recoverable +thereunder are four times the value of the property taken, threefourths +being pure penalty, and the remaining fourth compensation for the loss +which the plaintiff has sustained. So too the action on unlawful damage +under the lex Aquilia is mixed, not only where the defendant denies his +liability, and so is sued for double damages, but also sometimes where +the claim is for simple damages only; as where a lame or one-eyed slave +is killed, who within the year previous was sound and of large value; in +which case the defendant is condemned to pay his greatest value within +the year, according to the distinction which has been drawn above. +Persons too who are under an obligation as heirs to pay legacies or +trust bequests to our holy churches or other venerable places, and +neglect to do so until sued by the legatee, are liable to a mixed +action, by which they are compelled to give the thing or pay the money +left by the deceased, and, in addition, an equivalent thing or sum as +penalty, the condemnation being thus in twice the value of the original +claim. + +20 Some actions are mixed in a different sense, being partly real, +partly personal. They are exemplified by the action for the division of +a 'family,' by which one of two or more joint heirs can enforce against +the other or rest a partition of the inheritance, and by the actions +for the division of common property, and for rectification of boundaries +between adjoining landed proprietors. In these three actions the judge +has power, according as shall to him seem fair and equitable, to adjudge +any part of the joint property, or of the land in dispute, to any one +of the parties, and to order any one of them who seems to have an undue +advantage in the partition or rectification to pay a certain sum of +money to the other or the rest as compensation. + +21 The damages recoverable in an action may be either once, twice, +three, or four times the value of the plaintiff's original interest; +there is no action by which more than fourfold damages can be claimed. + +22 Single damages only are recoverable in the actions on stipulation, +loan for consumption, sale, hire, agency, and many others besides. + +23 Actions claiming double damages are exemplified by those on simple +theft, on unlawful damage under the lex Aquilia, on certain kinds of +deposit, and for corruption of a slave, which lies against any one by +whose instigation and advice another man's slave runs away, or becomes +disobedient to his master, or takes to dissolute habits, or becomes +worse in any way whatsoever, and in which the value of property which +the runaway slave has carried off is taken into account. Finally, as we +remarked above, the action for the recovery of legacies left to places +of religion is of this character. + +24 An action for triple damages is grounded when a plaintiff makes an +overstatement of his claim in the writ of summons, in consequence of +which the officers of the court take too large a fee from the defendant. +In such a case the latter will be able to recover from the plaintiff +three times the loss which he sustains by the overcharge, including +in these damages simple compensation for the sum paid in excess of the +proper fee. This is provided by a distinguished constitution in our +Code, under which a statutory condiction clearly lies for the damages in +question. + +25 Quadruple damages are recoverable by the action on theft detected +in the commission, by the action on intimidation, and by the action +grounded on the giving of money in order to induce one man to bring a +vexatious suit against another, or to desist from a suit when brought. +Under our constitution too a statutory condiction lies for the recovery +of fourfold damages from officers of the court, who exact money from +defendants in excess of its provisions. + +26 There is this difference between the actions on simple theft and for +the corruption of a slave, and the other of which we spoke in connexion +with them, that by the two former double damages are recoverable under +any circumstances; the latter, namely the action on unlawful damage +under the lex Aquilia, and that on certain kinds of deposit, entail +double damages on the defendant only if he denies his liability; if he +admits it, simple damages alone can be recovered. The damages are double +under an action for recovery of legacies left to religious places not +only when the liability is denied, but also when the defendant delays +payment until sued by the order of a magistrate; if he admits his +liability, and pays before being so sued, he cannot be compelled to pay +more than the original debt. + +27 The action on intimidation also differs from the others which we +mentioned in the same connexion, in that it contains in its very nature +an implied condition that the defendant is entitled to acquittal if, on +being so ordered by the judge, he restores to the plaintiff the property +of which the latter has been deprived. In other actions of the same +class this is not so; for instance, in the action on theft detected +in the commission, the defendant has under any circumstances to pay +fourfold damages. + +28 Again, some actions are equitable, others are actions of strict +law. To the former class belong the actions on sale, hire, unauthorised +agency, agency proper, deposit, partnership, guardianship, loan for use, +mortgage, division of a 'family,' partition of joint property, those +on the innominate contracts of sale by commission and exchange, and the +suit for recovery of an inheritance. Until quite recently it was a moot +point whether the lastnamed was properly an equitable action, but our +constitution has definitely decided the question in the affirmative. + +29 Formerly too the action for the recovery of a dowry was an equitable +action: but as we found that the action on stipulation was more +convenient, we have, while establishing many distinctions, attached +all the advantages which the former remedy possessed to the action +on stipulation, when employed for the recovery of a dowry. The former +action being thus by a judicious reform abolished, that on stipulation, +by which it has been replaced, has deservedly been invested with all +the characteristics of an equitable action, so far as and whenever it is +brought for the recovery of a dowry. We have also given persons entitled +to sue for such recovery a tacit hypothec over the husband's property, +but this right is not to give any priority over other hypothecary +creditors except where it is the wife herself who sues to recover +her dowry; it being in her interest only that we have made this new +provision. + +30 In equitable actions the judge has full power to assess on good and +fair grounds the amount due to the plaintiff, and in so doing to take +into account counterclaims of the defendant, condemning the latter only +in the balance. Even in actions of strict law counterclaims have been +permitted since a rescript of the Emperor Marcus, the defendant meeting +the plaintiff's claim by a plea of fraud. By our constitution, however, +a wider field has been given to the principle of setoff, when the +counterclaim is clearly established, the amount claimed in the +plaintiff's action, whether real or personal, or whatever its nature, +being reduced by operation of law to the extent of the defendant's +counterclaim. The only exception to this rule is the action on deposit, +against which we have deemed it no less than dishonest to allow any +counterclaim to be set up; for if this were permitted persons might +be fraudulently prevented from recovering property deposited under the +pretence of a setoff. + +31 There are some actions again which we call arbitrary, because their +issue depends on an 'arbitrium' or order of the judge. Here, unless on +such order the defendant satisfies the plaintiff's claim by restoring or +producing the property, or by performing his obligation, or in a noxal +action by surrendering the guilty slave, he ought to be condemned. Some +of such actions are real, others personal. The former are exemplified +by the Publician action, the Servian action for the recovery of a tenant +farmer's stock, and the quasi-Servian or socalled hypothecary action; +the latter by the actions on intimidation and on fraud, by that for the +recovery of a thing promised at a particular place, and by the action +claiming production of property. In all these actions, and others of a +similar nature, the judge has full power to determine on good and just +grounds, according to the circumstances of each particular case, the +form in which reparation ought to be made to the plaintiff. + +32 It is the judge's duty, in delivering judgement, to make his award as +definite as possible, whether it relate to the payment of money or +the delivery of property, and this even when the plaintiff's claim is +altogether unliquidated. + +33 Formerly, if the plaintiff, in his statement of claim, demanded more +than he was entitled to, his case fell to the ground, that is, he lost +even that which was his due, and in such cases the praetor usually +declined to restore him to his previous position, unless he was a minor; +for in this matter too the general rule was observed of giving relief to +minors after inquiry made, if it were proved that they had made an error +owing to their lack of years. If, however, the mistake was entirely +justifiable, and such as to have possibly misled even the discreetest of +men, relief was afforded even to persons of full age, as in the case of +a man who sues for the whole of a legacy, of which part is found to +have been taken away by codicils subsequently discovered; or where such +subsequently discovered codicils give legacies to other persons, so +that, the total amount given in legacies being reduced under the lex +Falcidia, the first legatee is found to have claimed more than the +threefourths allowed by that statute. Overstatement of claim takes four +forms; that is, it may relate either to the object, the time, the place, +or the specification. A plaintiff makes an overclaim in the object when, +for instance, he sues for twenty aurei while only ten are owing to him, +or when, being only part owner of property, he sues to recover the whole +or a greater portion of it than he is entitled to. Overclaim in respect +of time occurs when a man sues for money before the day fixed for +payment, or before the fulfilment of a condition on which payment was +dependent; for exactly as one who pays money only after it falls due +is held to pay less than his just debt, so one who makes his demand +prematurely is held to make an overclaim. Overclaim in respect of place +is exemplified by a man suing at one place for performance of a promise +which it was expressly agreed was to be performed at another, without +any reference, in his claim, to the latter: as, for instance, if a man, +after stipulating thus, 'Do you promise to pay at Ephesus?' were to +claim the money as due at Rome, without any addition as to Ephesus. +This is an overclaim, because by alleging that the money is due at Rome +simply, the plaintiff deprives his debtor of the advantage he might have +derived from paying at Ephesus. On this account an arbitrary action is +given to a plaintiff who sues at a place other than that agreed upon +for payment, in which the advantage which the debtor might have had in +paying at the latter is taken into consideration, and which usually is +greatest in connexion with commodities which vary in price from district +to district, such as wine, oil, or grain; indeed even the interest +on loans of money is different in different places. If, however, a +plaintiff sues at Ephesus--that is, in our example, at the place agreed +upon for the payment--he need do no more than simply allege the debt, +as the praetor too points out, because the debtor has all the advantage +which payment in that particular place gives him. Overclaim in respect +of specification closely resembles overclaim in respect of place, and +may be exemplified by a man's stipulating from you 'do you promise +to convey Stichus or ten aurei?' and then suing for the one or the +other--that is to say, either for the slave only, or for the money only. +The reason why this is an overclaim is that in stipulations of this sort +it is the promisor who has the election, and who may give the slave +or the money, whichever he prefers; consequently if the promisee sues, +alleging that either the money alone, or the slave alone, ought to be +conveyed to him, he deprives his adversary of his election, and thereby +puts him in a worse position, while he himself acquires an undue +advantage. Other cases of this form of overclaim occur where a man, +having stipulated in general terms for a slave, for wine, or for purple, +sues for the particular slave Stichus, or for the particular wine +of Campania, or for Tyrian purple; for in all of these instances he +deprives his adversary of his election, who was entitled, under the +terms of the stipulation, to discharge his obligation in a mode other +than that which is required of him. And even though the specific thing +for which the promisee sues be of little or no value, it is still an +overclaim: for it is often easier for a debtor to pay what is of greater +value than what is actually demanded of him. Such were the rules of the +older law, which, however, has been made more liberal by our own and +Zeno's statutes. Where the overclaim relates to time, the constitution +of Zeno prescribes the proper procedure; if it relates to quantity, or +assumes any other form, the plaintiff, as we have remarked above, is +to be condemned in a sum equivalent to three times any loss which the +defendant may have sustained thereby. + +34 If the plaintiff in his statement of claim demands less than is his +due, as for instance by alleging a debt of five aurei, when in fact he +is owed ten, or by claiming only half of an estate the whole of which +really belongs to him, he runs no risk thereby, for, by the constitution +of Zeno of sacred memory, the judge will in the same action condemn the +defendant in the residue as well as in the amount actually claimed. + +35 If he demands the wrong thing in his statement of claim, the rule is +that he runs no risk; for if he discovers his mistake, we allow him +to set it right in the same action. For instance, a plaintiff who is +entitled to the slave Stichus may claim Eros; or he may allege that he +is entitled to a conveyance under a will, when his right is founded in +reality upon a stipulation. + +36 There are again some actions in which we do not always recover the +whole of what is due to us, but in which we sometimes get the whole, +sometimes only part. For instance, if the fund to which our claim looks +for satisfaction be the peculium of a son in power or a slave, and it +is sufficient in amount to meet that claim, the father or master is +condemned to pay the whole debt; but if it is not sufficient, the +judge condemns him to pay only so far as it will go. Of the mode of +ascertaining the amount of a peculium we will speak in its proper place. + +37 So too if a woman sues for the recovery of her dowry, the rule is +that the husband is to be condemned to restore it only so far as he is +able, that is, so far as his means permit. Accordingly, if his means +will enable him to restore the dowry in full, he will be condemned to do +so; if not, he will be condemned to pay only so much as he is able. The +amount of the wife's claim is also usually lessened by the husband's +right of retaining some portion for himself, which he may do to the +extent of any outlay he has made on dowry property, according to +the rule, stated in the larger work of the Digest, that a dowry is +diminished by operation of law to the extent of all necessary outlay +thereon. + +38 Again, if a man goes to law with his parent or patron, or if one +partner brings an action of partnership against another, he cannot get +judgement for more than his adversary is able to pay. The rule is the +same when a man is sued on a mere promise to give a present. + +39 Very often too a plaintiff obtains judgement for less than he was +owed through the defendant's pleading a setoff: for, as has already been +observed, the judge, acting on equitable principles, would in such a +case take into account the cross demand in the same transaction of the +defendant, and condemn him only in the residue. + +40 So too if an insolvent person, who surrenders all his effects to his +creditors, acquires fresh property of sufficient amount to justify such +a step, his creditors may sue him afresh, and compel him to satisfy the +residue of their claims so far as he is able, but not to give up all +that he has; for it would be inhuman to condemn a man to pay his debts +in full who has already been once deprived of all his means. + + + + +TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER + +As we have already mentioned the action in respect of the peculium of +children in power and slaves, we must now explain it more fully, and +with it the other actions by which fathers and masters are sued for the +debts of their sons or slaves. Whether the contract be made with a slave +or with a child in power, the rules to be applied are much the same; and +therefore, to make our statements as short as possible, we will speak +only of slaves and masters, premising that what we say of them is true +also of children and the parents in whose power they are; where the +treatment of the latter differs from that of the former, we will point +out the divergence. + +1 If a slave enters into a contract at the bidding of his master, the +praetor allows the latter to be sued for the whole amount: for it is on +his credit that the other party relies in making the contract. + +2 On the same principle the praetor grants two other actions, in which +the whole amount due may be sued for; that called exercitoria, to +recover the debt of a shipmaster, and that called institoria, to recover +the debt of a manager or factor. The former lies against a master +who has appointed a slave to be captain of a ship, to recover a debt +incurred by the slave in his character of captain, and it is called +exercitoria, because the person to whom the daily profits of a ship +belong is termed an exercitor. The latter lies against a man who has +appointed a slave to manage a shop or business, to recover any debt +incurred in that business; it is called institoria, because a person +appointed to manage a business is termed an institor. And these actions +are granted by the praetor even if the person whom one sets over a ship, +a shop, or any other business, be a free man or another man's slave, +because equity requires their application in these latter cases no less +than in the former. + +3 Another action of the praetor's introduction is that called +tributoria. If a slave, with the knowledge of his master, devotes his +peculium to a trade or business, the rule which the praetor follows, in +respect of contracts made in the course of such trade or business, is +that the peculium so invested and its profits shall be divided between +the master, if anything is due to him, and the other creditors in the +ratio of their claims. The distribution of these assets is left to the +master, subject to this provision, that any creditor who complains of +having received less than his proper share can bring this action against +him for an account. + +4 There is also an action in respect of peculium and of what has been +converted to the uses of the master, under which, if a debt has been +contracted by a slave without the consent of his master, and some +portion thereof has been converted to his uses, he is liable to that +extent, while if no portion has been so converted, he is liable to the +extent of the slave's peculium. Conversion to his uses is any necessary +expenditure on his account, as repayment to his creditors of money +borrowed, repair of his falling house, purchase of corn for his slaves, +or of an estate for him, or any other necessary. Thus, if out of ten +aurei which your slave borrows from Titius, he pays your creditor five, +and spends the remainder in some other way, you are liable for the whole +of the five, and for the remainder to the extent of the peculium: and +from this it is clear that if the whole ten were applied to your uses +Titius could recover the whole from you. Thus, though it is but a single +action which is brought in respect of peculium and of conversion to +uses, it has two condemnatory clauses. The judge by whom the action is +tried first looks to see whether there has been any application to the +uses of the master, and does not proceed to ascertain the amount of +the peculium unless there has been no such application, or a partial +application only. In ascertaining the amount of the peculium deduction +is first made of what is owed to the master or any person in his power, +and the residue only is treated as peculium; though sometimes what +a slave owes to a person in his master's power is not deducted, for +instance, where that person is another slave who himself belongs to the +peculium; thus, where a slave owes a debt to his own vicarial slave, its +amount is not deducted from the peculium. + +5 There is no doubt that a person with whom a slave enters into a +contract at the bidding of his master, or who can sue by the actions +exercitoria or institoria, may in lieu thereof bring an action in +respect of the peculium and of conversion to uses; but it would be most +foolish of him to relinquish an action by which he may with the greatest +ease recover the whole of what is owing to him under the contract, and +undertake the trouble of proving a conversion to uses, or the existence +of a peculium sufficient in amount to cover the whole of the debt. So +too a plaintiff who can sue by the action called tributoria may sue in +respect of peculium and conversion to uses, and sometimes the one +action is the more advisable, sometimes the other. The former has this +advantage, that in it the master has no priority; there is no deduction +of debts owing to him, but he and the other creditors stand on precisely +the same footing; while in the action in respect of peculium deduction +is first made of debts owing to the master, who is condemned to pay +over to the creditors only what then remains. On the other hand, the +advantage of the action in respect of peculium is that in it the slave's +whole peculium is liable to his creditors, whereas in the action called +tributoria only so much of it is liable as is invested in the trade +or business; and this may be only a third, a fourth, or even a less +fraction, because the slave may have the rest invested in land or +slaves, or out on loan. A creditor ought therefore to select the one +or the other action by considering their respective advantages in each +particular case; though he certainly ought to choose that in respect of +conversion to uses, if he can prove such conversion. + +6 What we have said of the liability of a master on the contracts of +his slave is equally applicable where the contract is made by a child or +grandchild in the power of his or her father or grandfather. + +7 A special enactment in favour of children in power is found in the +senatusconsult of Macedo, which has prohibited the giving of loans of +money to such persons, and refused an action to the lender both against +the child, whether he be still in power, or has become independent by +death of the ancestor or emancipation, and against the parent, whether +he still retains the child in his power, or has emancipated him. This +enactment was made by the Senate because it was found that persons +in power, when dragged down by the burden of loans which they had +squandered in profligacy, often plotted against the lives of their +parents. + +8 Finally, it should be observed that where a contract has been entered +into by a slave or son in power at his master's or parent's bidding, +or where there has been a conversion to his uses, a condiction may be +brought directly against the parent or master, exactly as if he had +been the original contracting party in person. So too, wherever a man +is suable by either of the actions called exercitoria and institoria, +he may, in lieu thereof, be sued directly by a condiction, because in +effect the contract in such cases is made at his bidding. + + + + +TITLE VIII. OF NOXAL ACTIONS + +Where a delict, such as theft, robbery, unlawful damages, or outrage, +is committed by a slave, a noxal action lies against the master, who +on being condemned has the option of paying the damages awarded, or +surrendering the slave in satisfaction of the injury. + +1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the +term applied to the wrong itself, that is, the theft, damage, robbery, +or outrage. + +2 This principle of noxal surrender in lieu of paying damages awarded is +based on most excellent reason, for it would be unjust that the misdeed +of a slave should involve his master in any detriment beyond the loss of +his body. + +3 If a master is sued by a noxal action on the ground of his slave's +delict, he is released from all liability by surrendering the slave in +satisfaction of the wrong, and by this surrender his right of ownership +is permanently transferred; though if the slave can procure enough money +to compensate the surrenderee in full for the wrong he did him, he can, +by applying to the praetor, get himself manumitted even against the will +of his new master. + +4 Noxal actions were introduced partly by statute, partly by the Edict +of the praetor; for theft, by the statute of the Twelve Tables; for +unlawful damages, by the lex Aquilia; for outrage and robbery, by the +Edict. + +5 Noxal actions always follow the person of the wrongdoer. Thus, if your +slave does a wrong while in your power, an action lies against you; if +he becomes the property of some other person, that other is the proper +person to be sued; and if he is manumitted, he becomes directly and +personally liable, and the noxal action is extinguished. Conversely, a +direct action may change into noxal; thus, in an independent person has +done a wrong, and then becomes your slave (as he may in several ways +described in the first Book), a noxal action lies against you in lieu of +the direct action which previously lay against the wrongdoer in person. + +6 But no action lies for an offence committed by a slave against his +master, for between a master and a slave in his power there can be no +obligation; consequently, if the slave becomes the property of some +other person, or is manumitted, neither he nor his new master can be +sued; and on the same principle, if another man's slave commits a wrong +against you, and then becomes your property, the action is extinguished, +because it has come into a condition in which an action cannot exist; +the result being that even if the slave passes again out of your power +you cannot sue. Similarly, if a master commits a wrong against his +slave, the latter cannot sue him after manumission or alienation. + +7 These rules were applied by the ancients to wrongs committed by +children in power no less than by slaves; but the feeling of modern +times has rightly rebelled against such inhumanity, and noxal surrender +of children under power has quite gone out of use. Who could endure in +this way to give up a son, still more a daughter, to another, whereby +the father would be exposed to greater anguish in the person of a son +than even the latter himself, while mere decency forbids such treatment +in the case of a daughter? Accordingly, such noxal actions are permitted +only where the wrongdoer is a slave, and indeed we find it often laid +down by old legal writers that sons in power may be sued personally for +their own delicts. + + + + +TITLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS + +A noxal action was granted by the statute of the Twelve Tables in cases +of mischief done through wantonness, passion, or ferocity, by irrational +animals; it being by an enactment of that statute provided, that if the +owner of such an animal is ready to surrender it as compensation for the +damage, he shall thereby be released from all liability. Examples of +the application of this enactment may be found in kicking by a horse, +or goring by a bull, known to be given that way; but the action does not +lie unless in causing the damage the animal is acting contrary to its +natural disposition; if its nature be to be savage, this remedy is not +available. Thus, if a bear runs away from its owner, and causes damage, +the quondam owner cannot be sued, for immediately with its escape his +ownership ceased to exist. The term pauperies, or 'mischief,' is used to +denote damage done without there being any wrong in the doer of it, for +an unreasoning animal cannot be said to have done a wrong. Thus far as +to the noxal action. + +1 It is, however, to be observed that the Edict of the aedile forbids +dogs, boars, bears, or lions to be kept near where there is a public +road, and directs that if any injury be caused to a free man through +disobedience of this provision, the owner of the beast shall be +condemned to pay such sum as to the judge shall seem fair and equitable: +in case of any other injury the penalty is fixed at double damages. +Besides this aedilician action, that on pauperies may also be sometimes +brought against the same defendant; for when two or more actions, +especially penal ones, may be brought on one and the same ground, the +bringing of one does not debar the plaintiff from subsequently bringing +the other. + + + + +TITLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION + +We must now remark that a man may sue either for himself, or for another +as attorney, guardian, or curator: whereas formerly one man could not +sue for another except in public suits, as an assertor of freedom, +and in certain actions relating to guardianship. The lex Hostilia +subsequently permitted the bringing of an action of theft on behalf +of persons who were in the hands of an enemy, or absent on State +employment, and their pupils. It was, however, found extremely +inconvenient to be unable to either bring or defend an action on behalf +of another, and accordingly men began to employ attorneys for this +purpose; for people are often hindered by illhealth, age, unavoidable +absence, and many other causes from attending to their own business. + +1 For the appointment of an attorney no set form of words is necessary, +nor need it be made in the presence of the other party, who indeed +usually knows nothing about it; for in law any one is your attorney whom +you allow to bring or defend an action on your behalf. + +2 The modes of appointing guardians and curators have been explained in +the first Book. + + + + +TITLE XI. OF SECURITY + +The old system of taking security from litigants differed from that +which has more recently come into use. + +Formerly the defendant in a real action was obliged to give security, so +that if judgement went against him, and he neither gave up the property +which was in question, nor paid the damages assessed, the plaintiff +might be able to sue either him or his sureties: and this is called +security for satisfaction of judgement, because the plaintiff stipulates +for payment to himself of the sum at which the damages are assessed. +And there was all the more reason for compelling the defendant in a real +action to give security if he was merely the representative of another. +From the plaintiff in a real action no security was required if it was +on his own account that he sued, but if he was merely an attorney, he +was required to give security for the ratification of his proceedings +by his principal, owing to the possibility of the latter's subsequently +suing in person on the same claim. Guardians and curators were required +by the Edict to give the same security as attorneys; but when they +appeared as plaintiffs they were sometimes excused. + +1 So much for real actions. In personal actions the same rules applied, +so far as the plaintiff was concerned, as we have said obtained in real +actions. If the defendant was represented by another person, security +had always to be given, for no one is allowed to defend another without +security; but if the defendant was sued on his own account, he was not +compelled to give security for satisfaction of judgement. + +2 Nowadays, however, the practice is different; for if the defendant +is sued on his own account, he is not compelled to give security +for repayment of the damages assessed, whether the action be real or +personal; all that he has to do is to enter into a personal engagement +that he will subject himself to the jurisdiction of the court down +to final judgement; the mode of making such engagement being either +a promise under oath, which is called a sworn recognizance, or a bare +promise, or giving of sureties, according to the defendant's rank and +station. + +3 But the case is different where either plaintiff or defendant appears +by an attorney. If the plaintiff does so, and the attorney's appointment +is not enrolled in the records, or confirmed by the principal personally +in court, the attorney must give security for ratification of his +proceedings by his principal; and the rule is the same if a guardian, +curator, or other person who has undertaken the management of another's +affairs begins an action through an attorney. + +4 If a defendant appears, and is ready to appoint an attorney to defend +the action for him, he can do this either by coming personally into +court, and confirming the appointment by the solemn stipulations +employed when security is given for satisfaction of judgement, or by +giving security out of court whereby, as surety for his attorney, he +guarantees the observance of all the clauses of the socalled security +for satisfaction of judgement. In all such cases, he is obliged to give +a right of hypothec over all his property, whether the security be given +in or out of court, and this right avails against his heirs no less than +against himself. Finally, he has to enter into a personal engagement +or recognizance to appear in court when judgement is delivered; and in +default of such appearance his surety will have to pay all the damages +to which he is condemned, unless notice of appeal is given. + +5 If, however, the defendant for some reason or other does not appear, +and another will defend for him, he may do so, and it is immaterial +whether the action be real or personal, provided he will give security +for satisfaction of the judgement in full; for we have already mentioned +the old rule, that no one is allowed to defend another without security. + +6 All this will appear more clearly and fully by reference to the daily +practice of the courts, and to actual cases of litigation: + +7 and it is our pleasure that these rules shall hold not only in this +our royal city, but also in all our provinces, although it may be +that through ignorance the practice elsewhere was different: for it +is necessary that the provinces generally shall follow the lead of the +capital of our empire, that is, of this royal city, and observe its +usages. + + + + +TITLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT +BY AND AGAINST HEIRS + +It should be here observed that actions founded on statutes, +senatusconsults, and imperial constitutions could be brought at any +length of time from the accrual of the cause of action, until certain +limits were fixed for actions both real and personal by imperial +enactments; while actions which were introduced by the praetor in the +exercise of his jurisdiction could, as a rule, be brought only within a +year, that being the duration of his authority. Some praetorian actions, +however, are perpetual, that is to say, can be brought at any time +which does not exceed the limit fixed by the enactments referred to; for +instance, those granted to 'possessors of goods' and other persons who +are fictitiously represented as heirs. So, too, the action for theft +detected in the commission, though praetorian, is perpetual, the praetor +having judged it absurd to limit it by a year. + +1 Actions which will lie against a man under either the civil or the +praetorian law will not always lie against his heir, the rule being +absolute that for delict--for instance, theft, robbery, outrage, or +unlawful damage--no penal action can be brought against the heir. The +heir of the person wronged, however, may bring these actions, except +in outrage, and similar cases, if any. Sometimes, even an action on +contract cannot be brought against the heir; this being the case where +the testator has been guilty of fraud, and his heir has not profited +thereby. If, however, a penal action, such as those we have mentioned, +has been actually commenced by the original parties, it is transmitted +to the heirs of each. + +2 Finally, it must be remarked that if, before judgement is pronounced, +the defendant satisfies the plaintiff, the judges ought to absolve him, +even though he was liable to condemnation at the time when the action +was commenced; this being the meaning of the old dictum, that all +actions involve the power of absolution. + + + + +TITLE XIII. OF EXCEPTIONS + +We have next to examine the nature of exceptions. Exceptions are +intended for the protection of the defendant, who is often in this +position, that though the plaintiff's case is a good one in the +abstract, yet as against him, the particular defendant, his contention +is inequitable. + +1 For instance, if you are induced by duress, fraud, or mistake to +promise Titius by stipulation what you did not owe him, it is clear that +by the civil law you are bound, and that the action on your promise is +well grounded; yet it is inequitable that you should be condemned, and +therefore in order to defeat the action you are allowed to plead +the exception of duress, or of fraud, or one framed to suit the +circumstances of the cases. + +2 So too, if, as a preliminary to an advance of money, one stipulates +from you for its repayment, and then never advances it after all, it +is clear that he can sue you for the money, and you are bound by your +promise to give it; but it would be iniquitous that you should be +compelled to fulfil such an engagement, and therefore you are permitted +to defend yourself by the exception that the money, in point of fact, +was never advanced. The time within which this exception can be pleaded, +as we remarked in a former Book, has been shortened by our constitution. + +3 Again, if a creditor agrees with his debtor not to sue for a debt, the +latter still remains bound, because an obligation cannot be extinguished +by a bare agreement; accordingly, the creditor can validly bring against +him a personal action claiming payment of the debt, though, as it would +be inequitable that he should be condemned in the face of the agreement +not to sue, he may defend himself by pleading such agreement in the form +of an exception. + +4 Similarly, if at his creditor's challenge a debtor affirms on oath +that he is not under an obligation to convey, he still remains bound; +but as it would be unfair to examine whether he has perjured himself, +he can, on being sued, set up the defence that he has sworn to the +nonexistence of the debt. In real actions, too, exceptions are equally +necessary; thus, if on the plaintiff's challenge the defendant swears +that the property is his, there is nothing to prevent the former +from persisting in his action; but it would be unfair to condemn the +defendant, even though the plaintiff's contention that the property is +his be well founded. + +5 Again, an obligation still subsists even after judgement in an action, +real or personal, in which you have been defendent, so that in strict +law you may be sued again on the same ground of action; but you can +effectually meet the claim by pleading the previous judgement. + +6 These examples will have been sufficient to illustrate our meaning; +the multitude and variety of the cases in which exceptions are necessary +may be learnt by reference to the larger work of the Digest or Pandects. + +7 Some exceptions derive their force from statutes or enactments +equivalent to statutes, others from the jurisdiction of the praetor; + +8 and some are said to be perpetual or peremptory, others to be +temporary or dilatory. + +9 Perpetual or peremptory exceptions are obstructions of unlimited +duration, which practically destroy the plaintiff's ground of action, +such as the exceptions of fraud, intimidation, and agreement never to +sue. + +10 Temporary or dilatory exceptions are merely temporary obstructions, +their only effect being to postpone for a while the plaintiff's right +to sue; for example, the plea of an agreement not to sue for a certain +time, say, five years; for at the end of that time the plaintiff can +effectually pursue his remedy. Consequently persons who would like to +sue before the expiration of the time, but are prevented by the plea of +an agreement to the contrary, or something similar, ought to postpone +their action till the time specified has elapsed; and it is on this +account that such exceptions are called dilatory. If a plaintiff brought +his action before the time had expired, and was met by the exception, +this would debar him from all success in those proceedings, and formerly +he was unable to sue again, owing to his having rashly brought the +matter into court, whereby he consumed his right of action, and lost all +chance of recovering what was his due. Such unbending rules, however, we +do not at the present day approve. Plaintiffs who venture to commence +an action before the time agreed upon, or before the obligation is yet +actionable, we subject to the constitution of Zeno, which that most +sacred legislator enacted as to overclaims in respect of time; whereby, +if the plaintiff does not observe the stay which he has voluntarily +granted, or which is implied in the very nature of the action, the time +during which he ought to have postponed his action shall be doubled, and +at its termination the defendant shall not be suable until he has been +reimbursed for all expenses hitherto incurred. So heavy a penalty it is +hoped will induce plaintiffs in no case to sue until they are entitled. + +11 Moreover, some personal incapacities produce dilatory exceptions, +such as those relating to agency, supposing that a party wishes to be +represented in an action by a soldier or a woman; for soldiers may not +act as attorneys in litigation even on behalf of such near relatives as +a father, mother, or wife, not even in virtue of an imperial rescript, +though they may attend to their own affairs without committing a breach +of discipline. We have sanctioned the abolition of those exceptions, by +which the appointment of an attorney was formerly opposed on account of +the infamy of either attorney or principal, because we found that they +no longer were met with in actual practice, and to prevent the trial of +the real issue being delayed by disputes as to their admissibility and +operation. + + + + +TITLE XIV. OF REPLICATIONS + +Sometimes an exception, which prima facie seems just to the defendant, +is unjust to the plaintiff, in which case the latter must protect +himself by another allegation called a replication, because it parries +and counteracts the force of the exception. For example, a creditor may +have agreed with his debtor not to sue him for money due, and then have +subsequently agreed with him that he shall be at liberty to do so; here +if the creditor sues, and the debtor pleads that he ought not to be +condemned on proof being given of the agreement not to sue, he bars the +creditor's claim, for the plea is true, and remains so in spite of the +subsequent agreement; but as it would be unjust that the creditor should +be prevented from recovering, he will be allowed to plead a replication, +based upon that agreement. + +1 Sometimes again a replication, though prima facie just, is unjust +to the defendant; in which case he must protect himself by another +allegation called a rejoinder: + +2 and if this again, though on the face of it just, is for some reason +unjust to the plaintiff, a still further allegation is necessary for his +protection, which is called a surrejoinder. + +3 And sometimes even further additions are required by the multiplicity +of circumstances under which dispositions are made, or by which they +are subsequently affected; as to which fuller information may easily be +gathered from the larger work of the Digest. + +4 Exceptions which are open to a defendant are usually open to his +surety as well, as indeed is only fair: for when a surety is sued the +principal debtor may be regarded as the real defendant, because he can +be compelled by the action on agency to repay the surety whatsoever he +has disbursed on his account. Accordingly, if the creditor agrees with +his debtor not to sue, the latter's sureties may plead this agreement, +if sued themselves, exactly as if the agreement had been made with +them instead of with the principal debtor. There are, however, some +exceptions which, though pleadable by a principal debtor, are not +pleadable by his surety; for instance, if a man surrenders his property +to his creditors as an insolvent, and one of them sues him for his debt +in full, he can effectually protect himself by pleading the surrender; +but this cannot be done by his surety, because the creditor's main +object, in accepting a surety for his debtor, is to be able to have +recourse to the surety for the satisfaction of his claim if the debtor +himself becomes insolvent. + + + + +TITLE XV. OF INTERDICTS + +We have next to treat of interdicts or of the actions by which they have +been superseded. Interdicts were formulae by which the praetor either +ordered or forbad some thing to be done, and occurred most frequently in +case of litigation about possession or quasi-possession. + +1 The first division of interdicts is into orders of abstention, of +restitution, and of production. The first are those by which the praetor +forbids the doing of some act--for instance, the violent ejection of +a bona fide possessor, forcible interference with the internment of a +corpse in a place where that may lawfully be done, building upon sacred +ground, or the doing of anything in a public river or on its banks +which may impede its navigation. The second are those by which he orders +restitution of property, as where he directs possession to be restored +to a 'possessor of goods' of things belonging to an inheritance, and +which have hitherto been in the possession of others under the title +of heir, or without any title at all; or where he orders a person to be +reinstated in possession of land from which he has been forcibly ousted. +The third are those by which he orders the production of persons or +property; for instance, the production of a person whose freedom is in +question, of a freedman whose patron wishes to demand from him certain +services, or of children on the application of the parent in whose power +they are. Some think that the term interdict is properly applied only to +orders of abstention, because it is derived from the verb 'interdicere,' +meaning to denounce or forbid, and that orders of restitution or +production are properly termed decrees; but in practice they are all +called interdicts, because they are given 'inter duos,' between two +parties. + +2 The next division is into interdicts for obtaining possession, for +retaining possession, and for recovering possession. + +3 Interdicts for obtaining possession are exemplified by the one given +to a 'possessor of goods,' which is called 'Quorum bonorum,' and which +enjoins that whatever portion of the goods, whereof possession has been +granted to the claimant, is in the hands of one who holds by the title +of heir or as mere possessor only, shall be delivered up to the grantee +of possession. A person is deemed to hold by the title of heir who +thinks he is an heir; he is deemed to hold as mere possessor who relies +on no title at all, but holds a portion of the whole of the inheritance, +knowing that he is not entitled. It is called an interdict for obtaining +possession, because it is available only for initiating possession; +accordingly, it is not granted to a person who has already had and lost +possession. Another interdict for obtaining possession is that named +after Salvius, by which the landlord gets possession of the tenant's +property which has been hypothecated as a security for rent. + +4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for +retaining possession, and are employed when two parties claim ownership +in anything, in order to determine which shall be defendant and which +plaintiff; for no real action can be commenced until it is ascertained +which of the parties is in possession, because law and reason both +require that one of them shall be in possession and shall be sued by +the other. As the role of defendant in a real action is far more +advantageous than that of plaintiff, there is almost invariably a keen +dispute as to which party is to have possession pending litigation: the +advantage consisting in this, that, even if the person in possession has +no title as owner, the possession remains to him unless and until the +plaintiff can prove his own ownership: so that where the rights of the +parties are not clear, judgement usually goes against the plaintiff. +Where the dispute relates to the possession of land or buildings, +the interdict called 'Uti possidetis' is employed; where to movable +property, that called 'Utrubi.' Under the older law their effects were +very different. In 'Uti possidetis' the party in possession at the +issue of the interdict was the winner, provided he had not obtained +that possession from his adversary by force, or clandestinely, or by +permission; whether he had obtained it from some one else in any of +these modes was immaterial. In 'Utrubi' the winner was the party who +had been in possession the greater portion of the year next immediately +preceding, provided that possession had not been obtained by force, or +clandestinely, or by permission, from his adversary. At the present +day, however, the practice is different, for as regards the right to +immediate possession the two interdicts are now on the same footing; +the rule being, that whether the property in question be movable or +immovable, the possession is adjudged to the party who has it at the +commencement of the action, provided he had not obtained it by force, or +clandestinely, or by permission, from his adversary. + +5 A man's possession includes, besides his own personal possession, the +possession of any one who holds in his name, though not subject to his +power; for instance, his tenant. So also a depositary or borrower for +use may possess for him, as is expressed by the saying that we retain +possession by any one who holds in our name. Moreover, mere intention +suffices for the retention of possession; so that although a man is not +in actual possession either himself or through another, yet if it was +not with the intention of abandoning the thing that he left it, but with +that of subsequently returning to it, he is deemed not to have parted +with the possession. Through what persons we can obtain possession has +been explained in the second Book; and it is agreed on all hands that +for obtaining possession intention alone does not suffice. + +6 An interdict for recovering possession is granted to persons who have +been forcibly ejected from land or buildings; their proper remedy being +the interdict 'Unde vi,' by which the ejector is compelled to restore +possession, even though it had been originally obtained from him by the +grantee of the interdict by force, clandestinely, or by permission. +But by imperial constitutions, as we have already observed, if a man +violently seizes on property to which he has a title, he forfeits his +right of ownership; if on property which belongs to some one else, +he has not only to restore it, but also to pay the person whom he has +violently dispossessed a sum of money equivalent to its value. In cases +of violent dispossession the wrongdoer is liable under the lex Iulia +relating to private or public violence, by the former being meant +unarmed force, by the latter dispossession effected with arms; and +the term 'arms' must be taken to include not only shields, swords, and +helmets, but also sticks and stones. + +7 Thirdly, interdicts are divided into simple and double. Simple +interdicts are those wherein one party is plaintiff and the other +defendant, as is always the case in orders of restitution or production; +for he who demands restitution or production is plaintiff, and he from +whom it is demanded is defendant. Of interdicts which order abstention +some are simple, others double. The simple are exemplified by those +wherein the praetor commands the defendant to abstain from desecrating +consecrated ground, or from obstructing a public river or its banks; for +he who demands such order is the plaintiff, and he who is attempting +to do the act in question is defendant. Of double interdicts we have +examples in Uti possidetis and Utrubi; they are called double because +the footing of both parties is equal, neither being exclusively +plaintiff or defendant, but each sustaining the double role. + +8 To speak of the procedure and result of interdicts under the older law +would now be a waste of words; for when the procedure is what is called +'extraordinary,' as it is nowadays in all actions, the issue of an +interdict is unnecessary, the matter being decided without any such +preliminary step in much the same way as if it had actually been taken, +and a modified action had arisen on it. + + + + +TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION + +It should here be observed that great pains have been taken by those +who in times past had charge of the law to deter men from reckless +litigation, and this is a thing that we too have at heart. The best +means of restraining unjustifiable litigation, whether on the part of +a plaintiff or of a defendant, are money fines, the employment of the +oath, and the fear of infamy. + +1 Thus under our constitution, the oath has to be taken by every +defendant, who is not permitted even to state his defence until he +swears that he resists the plaintiff's claim because he believes that +his cause is a good one. In certain cases where the defendant denies his +liability the action is for double or treble the original claim, as in +proceedings on unlawful damages, and for recovery of legacies bequeathed +to religious places. In various actions the damages are multiplied at +the outset; in an action on theft detected in the commission they are +quadrupled; for simple theft they are doubled; for in these and some +other actions the damages are a multiple of the plaintiff's loss, +whether the defendant denies or admits the claim. Vexatious litigation +is checked on the part of the plaintiff also, who under our constitution +is obliged to swear on oath that his action is commenced in good faith; +and similar oaths have to be taken by the advocates of both parties, as +is prescribed in other of our enactments. Owing to these substitutes the +old action of dishonest litigation has become obsolete. The effect +of this was to penalize the plaintiff in a tenth part of the value he +claimed by action; but, as a matter of fact, we found that the penalty +was never exacted, and therefore its place has been taken by the oath +above mentioned, and by the rule that a plaintiff who sues without just +cause must compensate his opponent for all losses incurred, and also pay +the costs of the action. + +2 In some actions condemnation carries infamy with it, as in those on +theft, robbery, outrage, fraud, guardianship, agency, and deposit, if +direct, not contrary; also in the action on partnership, which is always +direct, and in which infamy is incurred by any partner who suffers +condemnation. In actions on theft, robbery, outrage, and fraud, it is +not only infamous to be condemned, but also to compound, as indeed is +only just; for obligation based on delict differs widely from obligation +based on contract. + +3 In commencing an action, the first step depends upon that part of the +Edict which relates to summons; for before anything else is done, the +adversary must be summoned, that is to say, must be called before +the judge who is to try the action. And herein the praetor takes into +consideration the respect due to parents, patrons, and the children and +parents of patrons, and refuses to allow a parent to be summoned by his +child, or a patron by his freedman, unless permission so to do has been +asked of and obtained from him; and for nonobservance of this rule he +has fixed a penalty of fifty solidi. + + + + +TITLE XVII. OF THE DUTIES OF A JUDGE + +Finally we have to treat of the duties of a judge; of which the first is +not to judge contrary to statutes, the imperial laws, and custom. + +1 Accordingly, if he is trying a noxal action, and thinks that the +master ought to be condemned, he should be careful to word his judgement +thus: 'I condemn Publius Maevius to pay ten aurei to Lucius Titius, or +to surrender to him the slave that did the wrong.' + +2 If the action is real, and he finds against the plaintiff, he ought to +absolve the defendant; if against the latter, he ought to order him +to give up the property in question, along with its fruits. If the +defendant pleads that he is unable to make immediate restitution and +applies for execution to be stayed, and such application appears to +be in good faith, it should be granted upon the terms of his finding a +surety to guarantee payment of the damages assessed, if restitution be +not made within the time allowed. If the subject of the action be an +inheritance, the same rule applies as regards fruits as we laid down in +speaking of actions for the recovery of single objects. If the defendant +is a mala fide possessor, fruits which but for his own negligence he +might have gathered are taken into account in much the same way in both +actions; but a bona fide possessor is not held answerable for fruits +which he has not consumed or has not gathered, except from the moment +of the commencement of the action, after which time account is taken as +well of fruits which might have been gathered but for his negligence as +of those which have been gathered and consumed. + +3 If the object of the action be production of property, its mere +production by the defendant is not enough, but it must be accompanied by +every advantage derived from it; that is to say, the plaintiff must be +placed in the same position he would have been in if production had +been made immediately on the commencement of the action. Accordingly +if, during the delay occasioned by trial, the possessor has completed +a title to the property by usucapion, he will not be thereby saved from +being condemned. The judge ought also to take into account the mesne +profits, or fruits produced by the property in the interval between the +commencement of the action and judgement. If the defendant pleads that +he is unable to make immediate production, and applies for a stay, and +such application appears to be in good faith, it should be granted on +his giving security that he will render up the property. If he neither +complies at once with the judge's order for production, nor gives +security for doing so afterwards, he ought to be condemned in a sum +representing the plaintiff's interest in having production at the +commencement of the proceedings. + +4 In an action for the division of a 'family' the judge ought to assign +to each of the heirs specific articles belonging to the inheritance, and +if one of them is unduly favoured, to condemn him, as we have already +said, to pay a fixed sum to the other as compensation. Again, the fact +the one only of two jointheirs has gathered the fruits of land comprised +in the inheritance, or has damaged or consumed something belonging +thereto, is ground for ordering him to pay compensation to the other; +and it is immaterial, so far as this action is concerned, whether the +jointheirs are only two or more in number. + +5 The same rules are applied in an action for partition of a number +of things held by joint-owners. If such an action be brought for the +partition of a single object, such as an estate, which easily admits +of division, the judge ought to assign a specific portion of each +jointowner, condemning such one as seems to be unduly favoured to pay +a fixed sum to the other as compensation. If the property cannot be +conveniently divided--as a slave, for instance, or a mule--it ought +to be adjudged entirely to one only of the jointowners, who should be +ordered to pay a fixed sum to the other as compensation. + +6 In an action for rectification of boundaries the judge ought to +examine whether an adjudication of property is actually necessary. There +is only one case where this is so; where, namely, convenience requires +that the line of separation between fields belonging to different owners +shall be more clearly marked than heretofore, and where, accordingly, +it is requisite to adjudge part of the one's field to the owner of the +other, who ought, in consequence, to be ordered to pay a fixed sum as +compensation to his neighbour. Another ground for condemnation in +this action is the commission of any malicious act, in respect of the +boundaries, by either of the parties, such as removal of landmarks, or +cutting down boundary trees: as also is contempt of court, expressed by +refusal to allow the fields to be surveyed in accordance with a judge's +order. + +7 Wherever property is adjudged to a party in any of these actions, he +at once acquires a complete title thereto. + + + + +TITLE XVIII. OF PUBLIC PROSECUTIONS + +Public prosecutions are not commenced as actions are, nor indeed is +there any resemblance between them and the other remedies of which we +have spoken; on the contrary, they differ greatly both in the mode in +which they are commenced, and in the rules by which they are conducted. + +1 They are called public because as a general rule any citizen may come +forward as prosecutor in them. + +2 Some are capital, others not. By capital prosecutions we mean those +in which the accused may be punished with the extremest severity of the +law, with interdiction from water and fire, with deportation, or with +hard labour in the mines: those which entail only infamy and pecuniary +penalties are public, but not capital. + +3 The following statutes relate to public prosecutions. First, there is +the lex Iulia on treason, which includes any design against the Emperor +or State; the penalty under it is death, and even after decease the +guilty person's name and memory are branded with infamy. + +4 The lex Iulia, passed for the repression of adultery, punishes with +death not only defilers of the marriage-bed, but also those who indulge +in criminal intercourse with those of their own sex, and inflicts +penalties on any who without using violence seduce virgins or widows +of respectable character. If the seducer be of reputable condition, +the punishment is confiscation of half his fortune; if a mean person, +flogging and relegation. + +5 The lex Cornelia on assassination pursues those persons, who commit +this crime with the sword of vengeance, and also all who carry weapons +for the purpose of homicide. By a 'weapon,' as is remarked by Gaius in +his commentary on the statute of the Twelve Tables, is ordinarily meant +some missile shot from a bow, but it also signifies anything thrown with +the hand; so that stones and pieces of wood or iron are included in the +term. 'Telum,' in fact, or 'weapon,' is derived from the Greek 'telou,' +and so means anything thrown to a distance. A similar connexion of +meaning may be found in the Greek word 'belos,' which corresponds to our +'telum,' and which is derived from 'ballesthai,' to throw, as we learn +from Xenophon, who writes, 'they carried with them 'belei,' namely +spears, bows and arrows, slings, and large numbers of stones.' +'Sicarius,' or assassin, is derived from 'sica,' a long steel knife. +This statute also inflicts punishment of death on poisoners, who kill +men by their hateful arts of poison and magic, or who publicly sell +deadly drugs. + +6 A novel penalty has been devised for a most odious crime by another +statute, called the lex Pompeia on parricide, which provides that any +person who by secret machination or open act shall hasten the death of +his parent, or child, or other relation whose murder amounts in law to +parricide, or who shall be an instigator or accomplice of such a crime, +although a stranger, shall suffer the penalty of parricide. This is not +execution by the sword or by fire, or any ordinary form of punishment, +but the criminal is sewn up in a sack with a dog, a cock, a viper, and +an ape, and in this dismal prison is thrown into the sea or a river, +according to the nature of the locality, in order that even before death +he shall begin to be deprived of the enjoyment of the elements, the +air being denied him while alive, and interment in the earth when dead. +Those who kill persons related to them by kinship or affinity, but whose +murder is not parricide, will suffer the penalties of the lex Cornelia +on assassination. + +7 The lex Cornelia on forgery, otherwise called the statute of wills, +inflicts penalties on all who shall write, seal, or read a forged will +or other document, or shall substitute the same for the real original, +or who shall knowingly and feloniously make, engrave, or use a false +seal. If the criminal be a slave, the penalty fixed by the statute is +death, as in the statute relating to assassins and poisoners: if a free +man, deportation. + +8 The lex Iulia, relating to public or private violence, deals with +those persons who use force armed or unarmed. For the former, +the penalty fixed by the statute is deportation; for the latter, +confiscation of one third of the offender's property. Ravishment of +virgins, widows, persons professed in religion, or others, and all +assistance in its perpetration, is punished capitally under the +provisions of our constitution, by reference to which full information +on this subject is obtainable. + +9 The lex Iulia on embezzlement punishes all who steal money or other +property belonging to the State, or devoted to the maintenance of +religion. Judges who during the term of office embezzle public money are +punishable with death, as also are their aiders and abettors, and any +who receive such money knowing it to have been stolen. Other persons who +violate the provisions of this statute are liable to deportation. + +10 A public prosecution may also be brought under the lex Fabia relating +to manstealing, for which a capital penalty is sometimes inflicted under +imperial constitutions, sometimes a lighter punishment. + +11 Other statutes which give rise to such prosecutions are the lex Iulia +on bribery, and three others, which are similarly entitled, and which +relate to judicial extortion, to illegal combinations for raising the +price of corn, and to negligence in the charge of public moneys. These +deal with special varieties of crime, and the penalties which they +inflict on those who infringe them in no case amount to death, but are +less severe in character. + +12 We have made these remarks on public prosecutions only to enable you +to have the merest acquaintance with them, and as a kind of guide to a +fuller study of the subject, which, with the assistance of Heaven, you +may make by reference to the larger volume of the Digest or Pandects. + + +THE END OF THE INSTITUTES OF JUSTINIAN + + + + + + + + + +End of the Project Gutenberg EBook of The Institutes of Justinian, by +Caesar Flavius Justinian + +*** END OF THIS PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN *** + +***** This file should be named 5983.txt or 5983.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/5/9/8/5983/ + +Produced by Howard Sauertieg + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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Moyle, Translator + +Release Date: June, 2004 [EBook #5983] +[Yes, we are more than one year ahead of schedule] +[This file was first posted on October 6, 2002] + +Edition: 10 + +Language: English + +Character set encoding: ASCII + +*** START OF THE PROJECT GUTENBERG EBOOK, THE INSTITUTES OF JUSTINIAN *** + + + + +This eBook was prepared by Howard Sauertieg. + + + +THE INSTITUTES OF JUSTINIAN + +Translated into English by J. B. Moyle, D.C.L. +of Lincoln's Inn, Barrister-at-Law, +Fellow and Late Tutor of New College, Oxford + +Fifth Edition (1913) + + + +* PROOEMIVM * + +In the name of Our Lord, Jesus Christ. + +The Emperor Caesar Flavius Justinian, conqueror of the +Alamanni, the Goths, the Franks, the Germans, the Antes, +the Alani, the Vandals, the Africans, pious, prosperous, +renowned, victorious, and triumphant, ever august, + +To the youth desirous of studying the law: + +The imperial majesty should be armed with laws as well as +glorified with arms, that there may be good government in times +both of war and of peace, and the ruler of Rome may not only be +victorious over his enemies, but may show himself as scrupulously +regardful of justice as triumphant over his conquered foes. + +With deepest application and forethought, and by the blessing +of God, we have attained both of these objects. The barbarian +nations which we have subjugated know our valour, Africa and +other provinces without number being once more, after so long an +interval, reduced beneath the sway of Rome by victories granted +by Heaven, and themselves bearing witness to our dominion. All +peoples too are ruled by laws which we have either enacted or +arranged. Having removed every inconsistency from the sacred +constitutions, hitherto inharmonious and confused, we extended +our care to the immense volumes of the older jurisprudence; and, +like sailors crossing the mid-ocean, by the favour of Heaven have +now completed a work of which we once despaired. When this, +with God's blessing, had been done, we called together that dis- +tinguished man Tribonian, master and ex-quaestor of our sacred +palace, and the illustrious Theophilus and Dorotheus, professors +of law, of whose ability, legal knowledge, and trusty observance +of our orders we have received many and genuine proofs, and +especially commissioned them to compose by our authority and +advice a book of Institutes, whereby you may be enabled to +learn your first lessons in law no longer from ancient fables, but +to grasp them by the brilliant light of imperial learning, and that +your ears and minds may receive nothing useless or incorrect, +but only what holds good in actual fact. And thus whereas in +past time even the foremost of you were unable to read the +imperial constitutions until after four years, you, who have been +so honoured and fortunate as to receive both the beginning and +the end of your legal teaching from the mouth of the Emperor, +can now enter on the study of them without delay. After the +completion therefore of the fifty books of the Digest or Pandects, +in which all the earlier law has been collected by the aid of the +said distinguished Tribonian and other illustrious and most able +men, we directed the division of these same Institutes into four +books, comprising the first elements of the whole science of law. +In these the law previously obtaining has been briefly stated, as +well as that which after becoming disused has been again brought +to light by our imperial aid. Compiled from all the Institutes of +our ancient jurists, and in particular from the commentaries of our +Gaius on both the Institutes and the common cases, and from +many other legal works, these Institutes were submitted to us by +the three learned men aforesaid, and after reading and examining +them we have given them the fullest force of our constitutions. + +Receive then these laws with your best powers and with the +eagerness of study, and show yourselves so learned as to be +encouraged to hope that when you have compassed the whole +field of law you may have ability to govern such portion of the +state as may be entrusted to you. + +Given at Constantinople the 21st day of November, +in the third consulate of the Emperor Justinian, +Father of his Country, +ever august. + + +* BOOK I * + +TITLES +I. Of Justice and Law +II. Of the law of nature, the law of nations, +and the civil law +III. Of the law of persons +IV. Of men free born +V. Of freedmen +VI. Of persons unable to manumit, and the +causes of their incapacity +VII. Of the repeal of the lex Fufia Caninia +VIII. Of persons independent or dependent +IX. Of paternal power +X. Of marriage +XI. Of adoptions +XII. Of the modes in which paternal power +is extinguished +XIII. Of guardianships +XIV. Who can be appointed guardians by will +XV. Of the statutory guardianship of agnates +XVI. Of loss of status +XVII. Of the statutory guardianship of patrons +XVIII. Of the statutory guardianship of parents +XIX. Of fiduciary guardianship +XX. Of Atilian guardians, and those appointed +under the lex Iulia et Titia +XXI. Of the authority of guardians +XXII. Of the modes in which guardianship +is terminated +XXIII. Of curators +XXIV. Of the security to be given by guardians +and curators +XXV. Of guardians' and curators' grounds +of exemption +XXVI. Of guardians or curators who are +suspected + +TITLE I +OF JUSTICE AND LAW + +Justice is the set and constant purpose which gives to every +man his due. 1 Jurisprudence is the knowledge of things divine +and human, the science of the just and the unjust. + +2 Having laid down these general definitions, and our object +being the exposition of the law of the Roman people, we think +that the most advantageous plan will be to commence with an +easy and simple path, and then to proceed to details with a most +careful and scrupulous exactness of interpretation. Otherwise, if +we begin by burdening the student's memory, as yet weak and +untrained, with a multitude and variety of matters, one of two +things will happen: either we shall cause him wholly to desert the +study of law, or else we shall bring him at last, after great labour, +and often, too, distrustful of his own powers (the commonest +cause, among the young, of ill-success), to a point which he +might have reached earlier, without such labour and confident +in himself, had he been led along a smoother path. + +3 The precepts of the law are these: to live honestly, to injure +no one, and to give every man his due. 4 The study of law +consists of two branches, law public, and law private. The +former relates to the welfare of the Roman State; the latter to +the advantage of the individual citizen. Of private law then we +may say that it is of threefold origin, being collected from the +precepts of nature, from those of the law of nations, or from +those of the civil law of Rome. + +TITLE II +OF THE LAW OF NATURE, THE LAW OF NATIONS, +AND THE CIVIL LAW + +1 The law of nature is that which she has taught all animals; a +law not peculiar to the human race, but shared by all living +creatures, whether denizens of the air, the dry land, or the sea. +Hence comes the union of male and female, which we call +marriage; hence the procreation and rearing of children, for +this is a law by the knowledge of which we see even the lower +animals are distinguished. The civil law of Rome, and the law +of all nations, differ from each other thus. The laws of every +people governed by statutes and customs are partly peculiar +to itself, partly common to all mankind. Those rules which a +state enacts for its own members are peculiar to itself, and +are called civil law: those rules prescribed by natural reason +for all men are observed by all peoples alike, and are called +the law of nations. Thus the laws of the Roman people are +partly peculiar to itself, partly common to all nations; a dis- +tinction of which we shall take notice as occasion offers. +2 Civil law takes its name from the state wherein it binds; for +instance, the civil law of Athens, it being quite correct to speak +thus of the enactments of Solon or Draco. So too we call the +law of the Roman people the civil law of the Romans, or the +law of the Quirites; the law, that is to say, which they observe, +the Romans being called Quirites after Quirinus. Whenever +we speak, however, of civil law, without any qualification, we +mean our own; exactly as, when `the poet' is spoken of, without +addition or qualification, the Greeks understand the great Homer, +and we understand Vergil. But the law of nations is common +to the whole human race; for nations have settled certain things +for themselves as occasion and the necessities of human life re- +quired. For instance, wars arose, and then followed captivity +and slavery, which are contrary to the law of nature; for by the +law of nature all men from the beginning were born free. The +law of nations again is the source of almost all contracts; for +instance, sale, hire, partnership, deposit, loan for consumption, +and very many others. + +3 Our law is partly written, partly unwritten, as among the +Greeks. The written law consists of statutes, plebiscites, +senatusconsults, enactments of the Emperors, edicts of the +magistrates, and answers of those learned in the law. 4 A +statute is an enactment of the Roman people, which it used to +make on the motion of a senatorial magistrate, as for instance +a consul. A plebiscite is an enactment of the commonalty, +such as was made on the motion of one of their own magistrates, +as a tribune. The commonalty differs from the people as a +species from its genus; for `the people' includes the whole +aggregate of citizens, among them patricians and senators, +while the term `commonalty' embraces only such citizens as +are not patricians or senators. After the passing, however, +of the statute called the lex Hortensia, plebiscites acquired +for the first time the force of statutes. 5 A senatusconsult +is a command and ordinance of the senate, for when the +Roman people had been so increased that it was difficult to +assemble it together for the purpose of enacting statutes, it +seemed right that the senate should be consulted instead of +the people. 6 Again, what the Emperor determines has the +force of a statute, the people having conferred on him all their +authority and power by the ‘lex regia,’ which was passed +concerning his office and authority. Consequently, whatever +the Emperor settles by rescript, or decides in his judicial +capacity, or ordains by edicts, is clearly a statute: and these +are what are called constitutions. Some of these of course +are personal, and not to be followed as precedents, since this +is not the Emperor's will; for a favour bestowed on individual +merit, or a penalty inflicted for individual wrongdoing, or relief +given without a precedent, do not go beyond the particular +person: though others are general, and bind all beyond a doubt. +7 The edicts of the praetors too have no small legal authority, +and these we are used to call the ‘ius honorarium,’ because +those who occupy posts of honour in the state, in other words +the magistrates, have given authority to this branch of law. The +curule aediles also used to issue an edict relating to certain +matters, which forms part of the ius honorarium. 8 The +answers of those learned in the law are the opinions and views +of persons authorized to determine and expound the law; for it +was of old provided that certain persons should publicly inter- +pret the laws, who were called jurisconsults, and whom the +Emperor privileged to give formal answers. If they were +unanimous the judge was forbidden by imperial constitution to +depart from their opinion, so great was its authority. 9 The +unwritten law is that which usage has approved: for ancient +customs, when approved by consent of those who follow them, +are like statute. 10 And this division of the civil law into two +kinds seems not inappropriate, for it appears to have origin- +ated in the institutions of two states, namely Athens and +Lacedaemon; it having been usual in the latter to commit +to memory what was observed as law, while the Athenians +observed only what they had made permanent in written +statutes. + +11 But the laws of nature, which are observed by all nations +alike, are established, as it were, by divine providence, and +remain ever fixed and immutable: but the municipal laws of +each individual state are subject to frequent change, either by +the tacit consent of the people, or by the subsequent enactment +of another statute. + +12 The whole of the law which we observe relates either to +persons, or to things, or to actions. And first let us speak of +persons: for it is useless to know the law without knowing the + persons for whose sake it was established. + +TITLE III +OF THE LAW OF PERSONS + +In the law of persons, then, the first division is into free men and +slaves. 1 Freedom, from which men are called free, is a man's +natural power of doing what he pleases, so far as he is not +prevented by force or law: 2 slavery is an institution of the law +of nations, against nature subjecting one man to the dominion +of another. 3 The name `slave' is derived from the practice of +generals to order the preservation and sale of captives, instead +of killing them; hence they are also called mancipia, because +they are taken from the enemy by the strong hand. 4 Slaves are +either born so, their mothers being slaves themselves; or they +become so, and this either by the law of nations, that is to say +by capture in war, or by the civil law, as when a free man, over +twenty years of age, collusively allows himself to be sold in order +that he may share the purchase money. 5 The condition of all +slaves is one and the same: in the conditions of free men there +are many distinctions; to begin with, they are either free born, +or made free. + +TITLE IV +OF MEN FREE BORN + +A freeborn man is one free from his birth, being the offspring +of parents united in wedlock, whether both be free born or +both made free, or one made free and the other free born. He +is also free born if his mother be free even though his father be +a slave, and so also is he whose paternity is uncertain, being +the offspring of promiscuous intercourse, but whose mother is +free. It is enough if the mother be free at the moment of birth, +though a slave at that of conception: and conversely if she be +free at the time of conception, and then becomes a slave before +the birth of the child, the latter is held to be free born, on the +ground that an unborn child ought not to be prejudiced by the +mother's misfortune. Hence arose the question of whether the +child of a woman is born free, or a slave, who, while pregnant, +is manumitted, and then becomes a slave again before delivery. +Marcellus thinks he is born free, for it is enough if the mother of +an unborn infant is free at any moment between conception and +delivery: and this view is right. 1 The status of a man born free +is not prejudiced by his being placed in the position of a slave +and then being manumitted: for it has been decided that manu- +mission cannot stand in the way of rights acquired by birth. + +TITLE V +OF FREEDMEN + +Those are freedmen, or made free, who have been manumit- +ted from legal slavery. Manumission is the giving of freedom; +for while a man is in slavery he is subject to the power once +known as ‘manus’; and from that power he is set free by manu- +mission. All this originated in the law of nations; for by natural +law all men were born free -- slavery, and by consequence + manumission, being unknown. But afterwards slavery came +in by the law of nations; and was followed by the boon of +manumission; so that though we are all known by the common +name of `man,' three classes of men came into existence with +the law of nations, namely men free born, slaves, and thirdly +freedmen who had ceased to be slaves. 1 Manumission may +take place in various ways; either in the holy church, according +to the sacred constitutions, or by default in a fictitious vindica- +tion, or before friends, or by letter, or by testament or any +other expression of a man's last will: and indeed there are many +other modes in which freedom may be acquired, introduced +by the constitutions of earlier emperors as well as by our own. +2 It is usual for slaves to be manumitted by their masters at any +time, even when the magistrate is merely passing by, as for +instance while the praetor or proconsul or governor of a +province is going to the baths or the theatre. + +3 Of freedmen there were formerly three grades; for those +who were manumitted sometimes obtained a higher freedom +fully recognised by the laws, and became Roman citizens; +sometimes a lower form, becoming by the lex Iunia Norbana +Latins; and sometimes finally a liberty still more circumscribed, +being placed by the lex Aelia Sentia on the footing of enemies +surrendered at discretion. This last and lowest class, however, +has long ceased to exist, and the title of Latin also had become +rare: and so in our goodness, which desires to raise and im- +prove in every matter, we have amended this in two consti- +tutions, and reintroduced the earlier usage; for in the earliest +infancy of Rome there was but one simple type of liberty, +namely that possessed by the manumitter, the only distinction +possible being that the latter was free born, while the manu- +mitted slave became a freedman. We have abolished the class +of ‘dediticii,’ or enemies surrendered at discretion, by our +constitution, published among those our decisions, by which, +at the suggestion of the eminent Tribonian, our quaestor, we +have set at rest the disputes of the older law. By another con- +stitution, which shines brightly among the imperial enactments, +and suggested by the same quaestor, we have altered the +position of the ‘Latini Iuniani,’ and dispensed with all the rules +relating to their condition; and have endowed with the citizen- +ship of Rome all freedmen alike, without regard to the age of +the person manuumitted, and nature of the master's ownership, +or the mode of manumission, in accordance with the earlier +usage; with the addition of many new modes in which freedom +coupled with the Roman citizenship, the only kind of freedom +now known may be bestowed on slaves. + +TITLE VI +OF PERSONS UNABLE TO MANUMIT, AND THE +CAUSES OF THEIR INCAPACITY + +In some cases, however, manumission is not permitted; for an +owner who would defraud his creditors by an intended manu- +mission attempts in vain to manumit, the act being made of no +effect by the lex Aelia Sentia. 1 A master, however, who is +insolvent may institute one of his slaves heir in his will, confer- +ring freedom on him at the same time, so that he may become +free and his sole and necessary heir, provided no one else takes +as heir under the will, either because no one else was instituted +at all, or because the person instituted for some reason or other +does not take the inheritance. And this was a judicious provision +of the lex Aelia Sentia, for it was most desirable that persons +in embarrassed circumstances, who could get no other heir, +should have a slave as necessary heir to satisfy their creditors' +claims, or that at least (if he did not do this) the creditors might +sell the estate in the slave's name, so as to save the memory of +the deceased from disrepute. 2 The law is the same if a slave +be instituted heir without liberty being expressly given him, this +being enacted by our constitution in all cases, and not merely +where the master is insolvent; so that in accordance with the +modern spirit of humanity, institution will be equivalent to a gift +of liberty; for it is unlikely, in spite of the omission of the grant +of freedom, that one should have wished the person whom one +has chosen as one's heir to remain a slave, so that one should +have no heir at all. 3 If a person is insolvent at the time of a +manumission, or becomes so by the manumission itself, this is +manumission in fraud of creditors. It is, however, now settled +law, that the gift of liberty is not avoided unless the intention of +the manumitter was fraudulent, even though his property is in +fact insufficient to meet his creditors' claims; for men often hope +and believe that they are better off than they really are. Con- +sequently, we understand a gift of liberty to be avoided only +when the creditors are defrauded both by the intention of the +manumitter, and in fact: that is to say, by his property being +insufficient to meet their claims. + +4 The same lex Aelia Sentia makes it unlawful for a master +under twenty years of age to manumit, except in the mode of +fictitious vindication, preceded by proof of some legitimate +motive before the council. 5 It is a legitimate motive of manu- +mission if the slave to be manumitted be, for instance, the +father or mother of the manumitter, or his son or daughter, or +his natural brother or sister, or governor or nurse or teacher, +or foster-son or foster-daughter or foster-brother, or a slave +whom he wishes to make his agent, or a female slave whom +he intends to marry; provided he marry her within six months, +and provided that the slave intended as an agent is not less +than seventeen years of age at the time of manumission. 6 +When a motive for manumission, whether true or false, has +once been proved, the council cannot withdraw its sanction. + +7 Thus the lex Aelia Sentia having prescribed a certain mode +of manumission for owners under twenty, it followed that +though a person fourteen years of age could make a will, and +therein institute an heir and leave legacies, yet he could not con- +fer liberty on a slave until he had completed his twentieth year. +But it seemed an intolerable hardship that a man who had the +power of disposing freely of all his property by will should not +be allowed to give his freedom to a single slave: wherefore we +allow him to deal in his last will as he pleases with his slaves as +with the rest of his property, and even to give them their liberty +if he will. But liberty being a boon beyond price, for which +very reason the power of manumission was denied by the older +law to owners under twenty years of age, we have as it were +selected a middle course, and permitted persons under twenty +years of age to manumit their slaves by will, but not until they +have completed their seventeenth and entered on their eighteenth +year. For when ancient custom allowed persons of this age to +plead on behalf of others, why should not their judgement be +deemed sound enough to enable them to use discretion in giving +freedom to their own slaves? + +TITLE VII +OF THE REPEAL OF THE LEX FUFIA CANINIA + +Moreover, by the lex Fufia Caninia a limit was placed on the +number of slaves who could be manumitted by their master's +testament: but this law we have thought fit to repeal, as an +obstacle to freedom and to some extent invidious, for it was +certainly inhuman to take away from a man on his deathbed the +right of liberating the whole of his slaves, which he could have +exercised at any moment during his lifetime, unless there were +some other obstacle to the act of manumission. + +TITLE VIII +OF PERSONS INDEPENDENT OR DEPENDENT + +Another division of the law relating to persons classifies them as +either independent or dependent. Those again who are depend- +ent are in the power either of parents or of masters. Let us first +then consider those who are dependent, for by learning who +these are we shall at the same time learn who are independent. +And first let us look at those who are in the power of masters. + +1 Now slaves are in the power of masters, a power recognised +by the law of all nations, for all nations present the spectacle of +masters invested with power of life and death over slaves; and +to whatever is acquired through a slave his owner is entitled. +2 But in the present day no one under our sway is permitted to +indulge in excessive harshness towards his slaves, without some +reason recognised by law; for, by a constitution of the Emperor +Antoninus Pius, a man is made as liable to punishment for killing +his own slave as for killing the slave of another person; and +extreme severity on the part of masters is checked by another +constitution whereby the same Emperor, in answer to inquiries +from presidents of provinces concerning slaves who take refuge +at churches or statues of the Emperor, commanded that on +proof of intolerable cruelty a master should be compelled to +sell his slaves on fair terms, so as to receive their value. And +both of these are reasonable enactments, for the public interest +requires that no one should make an evil use of his own property. +The terms of the rescript of Antoninus to Aelius Marcianus are +as follow: -- `The powers of masters over their slaves ought to +continue undiminished, nor ought any man to be deprived of +his lawful rights; but it is the master's own interest that relief +justly sought against cruelty, insufficient sustenance, or intoler- +able wrong, should not be denied. I enjoin you then to look +into the complaints of the slaves of Iulius Sabinus, who have +fled for protection to the statue of the Emperor, and if you find +them treated with undue harshness or other ignominious wrong, +order them to be sold, so that they may not again fall under the +power of their master; and the latter will find that if he attempts +to evade this my enactment, I shall visit his offence with severe +punishment.' + +TITLE IX +OF PATERNAL POWER + +Our children whom we have begotten in lawful wedlock are in +our power. 1 Wedlock or matrimony is the union of male and +female, involving the habitual intercourse of daily life. 2 The +power which we have over our children is peculiar to Roman +citizens, and is found in no other nation. 3 The offspring then +of you and your wife is in your power, and so too is that of +your son and his wife, that is to say, your grandson and grand- +daughter, and so on. But the offspring of your daughter is not +in your power, but in that of its own father. + +TITLE X +OF MARRIAGE + +Roman citizens are joined together in lawful wedlock when they +are united according to law, the man having reached years of +puberty, and the woman being of a marriageable age, whether +they be independent or dependent: provided that, in the latter +case, they must have the consent of the parents in whose power +they respectively are, the necessity of which, and even of its +being given before the marriage takes place, is recognised no +less by natural reason than by law. Hence the question has arisen, +can the daughter or son of a lunatic lawfully contract marriage? +and as the doubt still remained with regard to the son, we +decided that, like the daughter, the son of a lunatic might marry +even without the intervention of his father, according to the mode +prescribed by our constitution. + +1 It is not every woman that can be taken to wife: for mar- +riage with certain classes of persons is forbidden. Thus, persons +related as ascendant and descendant are incapable of lawfully +intermarrying; for instance, father and daughter, grandfather +and granddaughter, mother and son, grandmother and grand- +son, and so on ad infinitum; and the union of such persons is +called criminal and incestuous. And so absolute is the rule, that +persons related as ascendant and descendant merely by adoption +are so utterly prohibited from intermarriage that dissolution of +the adoption does not dissolve the prohibition: so that an +adoptive daughter or granddaughter cannot be taken to wife +even after emancipation. + +2 Collateral relations also are subject to similar prohibitions, but +not so stringent. Brother and sister indeed are prohibited from +intermarriage, whether they are both of the same father and +mother, or have only one parent in common: but though an +adoptive sister cannot, during the subsistence of the adoption, +become a man's wife, yet if the adoption is dissolved by her +emancipation, or if the man is emancipated, there is no imped- +iment to their intermarriage. Consequently, if a man wished to +adopt his son-in-law, he ought first to emancipate his daughter: +and if he wished to adopt his daughter-in-law, he ought first +to emancipate his son. 3 A man may not marry his brother's +or his sister's daughter, or even his or her granddaughter, +though she is in the fourth degree; for when we may not marry +a person's daughter, we may not marry the granddaughter either. +But there seems to be no obstacle to a man's marrying the +daughter of a woman whom his father has adopted, for she is +no relation of his by either natural or civil law. 4 The children +of two brothers or sisters, or of a brother and sister, may lawfully +intermarry. 5 Again, a man may not marry his father's sister, +even though the tie be merely adoptive, or his mother's sister: +for they are considered to stand in the relation of ascendants. +For the same reason too a man may not marry his great-aunt +either paternal or maternal. 6 Certain marriages again are pro- +hibited on the ground of affinity, or the tie between a man or his +wife and the kin of the other respectively. For instance, a man +may not marry his wife's daughter or his son's wife, for both are +to him in the position of daughters. By wife's daughter or son's +wife we must be understood to mean persons who have been +thus related to us; for if a woman is still your daughter-in-law, +that is, still married to your son, you cannot marry her for +another reason, namely, because she cannot be the wife of two +persons at once. So too if a woman is still your stepdaughter, +that is, if her mother is still married to you, you cannot marry her +for the same reason, namely, because a man cannot have two +wives at the same time. 7 Again, it is forbidden for a man to +marry his wife's mother or his father's wife, because to him +they are in the position of a mother, though in this case too our +statement applies only after the relationship has finally terminated; +otherwise, if a woman is still your stepmother, that is, is married +to your father, the common rule of law prevents her from +marrying you, because a woman cannot have two husbands at +the same time: and if she is still your wife's mother, that is, if her +daughter is still married to you, you cannot marry her because +you cannot have two wives at the same time. 8 But a son of the +husband by another wife, and a daughter of the wife by another +husband, and vice versa, can lawfully intermarry, even though +they have a brother or sister born of the second marriage. 9 If +a woman who has been divorced from you has a daughter by +a second husband, she is not your stepdaughter, but Iulian is of +opinion that you ought not to marry her, on the ground that +though your son's betrothed is not your daughter-in-law, nor +your father's betrothed you stepmother, yet it is more decent +and more in accordance with what is right to abstain from +intermarrying with them. 10 It is certain that the rules relating to +the prohibited degrees of marriage apply to slaves: supposing, +for instance, that a father and daughter, or a brother and sister, +acquired freedom by manumission. 11 There are also other +persons who for various reasons are forbidden to intermarry, +a list of whom we have permitted to be inserted in the books +of the Digest or Pandects collected from the older law. + +12 Alliances which infringe the rules here stated do not confer +the status of husband and wife, nor is there in such case either +wedlock or marriage or dowry. Consequently children born of +such a connexion are not in their father's power, but as regards +the latter are in the position of children born of promiscuous +intercourse, who, their paternity being uncertain, are deemed to +have no father at all, and who are called bastards, either from +the Greek word denoting illicit intercourse, or because they are +fatherless. Consequently, on the dissolution of such a connex- +ion there can be no claim for return of dowry. Persons who +contract prohibited marriages are subjected to penalties set +forth in our sacred constitutions. + +13 Sometimes it happens that children who are not born in their +father's power are subsequently brought under it. Such for +instance is the case of a natural son made subject to his father's +power by being inscribed a member of the curia; and so too is +that of a child of a free woman with whom his father cohabited, +though he could have lawfully married her, who is subjected to +the power of his father by the subsequent execution of a dowry +deed according to the terms of our constitution: and the same +boon is in effect bestowed by that enactment on children sub- +sequently born of the same marriage. + +TITLE XI +OF ADOPTIONS + +Not only natural children are subject, as we said, to paternal +power, but also adoptive children. 1 Adoption is of two forms, +being effected either by rescript of the Emperor, or by the +judicial authority of a magistrate. The first is the mode in which +we adopt independent persons, and this form of adoption is +called adrogation: the second is the mode in which we adopt a +person subject to the power of an ascendant, whether a +descendant in the first degree, as a son or daughter, or in a +remoter degree, as a grandson, granddaughter, great-grandson, +or great-grand-daughter. 2 But by the law, as now settled by +our constitution, when a child in power is given in adoption +to a stranger by his natural father, the power of the latter is not +extinguished; no right passes to the adoptive father, nor is the +person adopted in his power, though we have given a right of +succession in case of the adoptive father dying intestate. But +if the person to whom the child is given in adoption by its +natural father is not a stranger, but the child's own maternal +grandfather, or, supposing the father to have been emancipated, +its paternal grandfather, or its great-grandfather paternal or +maternal, in this case, because the rights given by nature and +those given by adoption are vested in one and the same +person, the old power of the adoptive father is left unimpaired, +the strength of the natural bond of blood being augmented by +the civil one of adoption, so that the child is in the family and +power of an adoptive father, between whom and himself there +existed antecedently the relationship described. 3 When a child +under the age of puberty is adopted by rescript of the Emperor, +the adrogation is only permitted after cause shown, the goodness +of the motive and the expediency of the step for the pupil being +inquired into. The adrogation is also made under certain con- +ditions; that is to say, the adrogator has to give security to a +public agent or attorney of the people, that if the pupil should +die within the age of puberty, he will return his property to +the persons who would have succeeded him had no adoption +taken place. The adoptive father again may not emancipate +them unless upon inquiry they are found deserving of emanci- +pation, or without restoring them their property. Finally, if he +disinherits him at death, or emancipates him in his lifetime +without just cause, he is obliged to leave him a fourth of his own +property, besides that which he brought him when adopted, or +by subsequent acquisition. 4 It is settled that a man cannot +adopt another person older than himself, for adoption imitates +nature, and it would be unnatural for a son to be older than his +father. Consequently a man who desires either to adopt or to +adrogate a son ought to be older than the latter by the full term +of puberty, or eighteen years. 5 A man may adopt a person +as grandson or granddaughter, or as great-grandson or great- +granddaughter, and so on, without having a son at all himself; +6 and similarly he may adopt another man's son as grandson, +or another man's grandson as son. 7 If he wishes to adopt +some one as grandson, whether as the son of an adoptive son +of his own, or of a natural son who is in his power, the consent +of this son ought to be obtained, lest a family heir be thrust +upon him against his will: but on the other hand, if a grandfather +wishes to give a grandson by a son in adoption to some one else, +the son's consent is not requisite. 8 An adoptive child is in most +respects in the same position, as regards the father, as a natural +child born in lawful wedlock. Consequently a man can give in +adoption to another a person whom he has adopted by imperial +rescript, or before the praetor or governor of a province, pro- +vided that in this latter case he was not a stranger (i.e. was a +natural descendant) before he adopted him himself. 9 Both +forms of adoption agree in this point, that persons incapable of +procreation by natural impotence are permitted to adopt, where- +as castrated persons are not allowed to do so. 10 Again, +women cannot adopt, for even their natural children are not +subject to their power; but by the imperial clemency they are +enabled to adopt, to comfort them for the loss of children who +have been taken from them. 11 It is peculiar to adoption by +imperial rescript, that children in the power of the person +adrogated, as well as their father, fall under the power of the +adrogator, assuming the position of grandchildren. Thus +Augustus did not adopt Tiberius until Tiberius had adopted +Germanicus, in order that the latter might become his own +grandson directly the second adoption was made. 12 The +old writers record a judicious opinion contained in the writings +of Cato, that the adoption of a slave by his master is equiva- +lent to manumission. In accordance with this we have in our +wisdom ruled by a constitution that a slave to whom his master +gives the title of son by the solemn form of a record is thereby +made free, although this is not sufficient to confer on him the +rights of a son. + +TITLE XII +OF THE MODES IN WHICH PATERNAL POWER +IS EXTINGUISHED + +Let us now examine the modes in which persons dependent +on a superior become independent. How slaves are freed +from the power of their masters can be gathered from what +has already been said respecting their manumission. Children +under paternal power become independent at the parent's death, +subject, however, to the following distinction. The death of a +father always releases his sons and daughters from dependence; +the death of a grandfather releases his grandchildren from +dependence only provided that it does not subject them to +the power of their father. Thus, if at the death of the grand- +father the father is alive and in his power, the grandchildren, +after the grandfather's death, are in the power of the father; +but if at the time of the grandfather's death the father is dead, +or not subject to the grandfather, the grandchildren will not +fall under his power, but become independent. 1 As +deportation to an island for some penal offence entails loss of +citizenship, such removal of a man from the list of Roman +citizens has, like his death, the effect of liberating his children +from his power; and conversely, the deportation of a person +subject to paternal power terminates the power of the parent. +In either case, however, if the condemned person is pardoned +by the grace of the Emperor, he recovers all his former rights. +2 Relegation to an island does not extinguish paternal power, +whether it is the parent or the child who is relegated. 3 Again, +a father's power is extinguished by his becoming a `slave of +punishment,' for instance, by being condemned to the mines or +exposed to wild beasts. 4 A person in paternal power does +not become independent by entering the army or becoming a +senator, for military service or consular dignity does not set a +son free from the power of his father. But by our constitution +the supreme dignity of the patriciate frees a son from power +immediately on the receipt of the imperial patent; for who would +allow anything so unreasonable as that, while a father is able by +emancipation to release his son from the tie of his power, the +imperial majesty should be unable to release from dependence +on another the man whom it has selected as a father of the State? +5 Again, capture of the father by the enemy makes him a slave +of the latter; but the status of his children is suspended by his +right of subsequent restoration by postliminium; for on escape +from captivity a man recovers all his former rights, and among +them the right of paternal power over his children, the law of +postliminium resting on a fiction that the captive has never +been absent from the state. But if he dies in captivity the son is +reckoned to have been independent from the moment of his +father's capture. So too, if a son or a grandson is captured by +the enemy, the power of his ascendant is provisionally suspended, +though he may again be subjected to it by postliminium. This +term is derived from ‘limen’ and ‘post,’ which explains why we +say that the person who has been captured by the enemy and +has come back into our territories has returned by postliminium: +for just as the threshold forms the boundary of a house, so the +ancients represented the boundaries of the empire as a threshold; +and this is also the origin of the term ‘limes, signifying a kind of +end and limit. Thus postliminium means that the captive returns +by the same threshold at which he was lost. A captive who is +recovered after a victory over the enemy is deemed to have +returned by postliminium. 6 Emancipation also liberates children +from the power of the parent. Formerly it was effected either +by the observance of an old form prescribed by statute by +which the son was fictitiously sold and then manumitted, or +by imperial rescript. Our forethought, however, has amended +this by a constitution, which has abolished the old fictitious +form, and enabled parents to go directly to a competent judge +or magistrate, and in his presence release their sons or daughters, +grandsons or granddaughters, and so on, from their power. +After this, the father has by the praetor's edict the same rights +over the property of the emancipated child as a patron has +over the property of his freedman: and if at the time of emanci- +pation the child, whether son or daughter, or in some remoter +degree of relationship, is beneath the age of puberty, the father +becomes by the emancipation his or her guardian. 7 It is to be +noted, however, that a grandfather who has both a son, and by +that son a grandson or granddaughter, in his power, may either +release the son from his power and retain the grandson or grand- +daughter, or emancipate both together; and a great-grandfather +has the same latitude of choice. 8 Again, if a father gives a son +whom he has in his power in adoption to the son's natural +grandfather or great-grandfather, in accordance with our con- +stitution on this subject, that is to say, by declaring his intention, +before a judge with jurisdiction in the matter, in the official +records, and in the presence and with the consent of the person +adopted, the natural father's power is thereby extinguished, and +passes to the adoptive father, adoption by whom under these +circumstances retains, as we said, all its old legal consequences. +9 It is to be noted, that if your daughter-in-law conceives by +your son, and you emancipate or give the latter in adoption +during her pregnancy, the child when born will be in your power; +but if the child is conceived after its father's emancipation or +adoption, it is in the power of its natural father or its adoptive +grandfather, as the case may be. 10 Children, whether natural +or adoptive, are only very rarely able to compel their parent to +release them from his power. + +TITLE XIII +OF GUARDIANSHIPS + +Let us now pass on to another classification of persons. Persons +not subject to power may still be subject either to guardians or +to curators, or may be exempt from both forms of control. We +will first examine what persons are subject to guardians and +curators, and thus we shall know who are exempt from both +kinds of control. And first of persons subject to guardianship or +tutelage. 1 Guardianship, as defined by Servius, is authority +and control over a free person, given and allowed by the civil +law, in order to protect one too young to defend himself: 2 and +guardians are those persons who possess this authority and +control, their name being derived from their very functions; for +they are called guardians as being protectors and defenders, +just as those entrusted with the care of sacred buildings are +called ‘aeditui.’ 3 The law allows a parent to appoint guardians +in his will for those children in his power who have not attained +the age of puberty, without distinction between sons and +daughters; but a grandson or granddaughter can receive a tes- +tamentary guardian only provided that the death of the testator +does not bring them under the power of their own father. +Thus, if your son is in your power at the time of your death, +your grandchildren by him cannot have a guardian given them +by your will, although they are in your power, because your +death leaves them in the power of their father. 4 And as in +many other matters afterborn children are treated on the +footing of children born before the execution of the will, so it +is ruled that afterborn children, as well as children born before +the will was made, may have guardians therein appointed to +them, provided that if born in the testator's lifetime they would +be family heirs and in his power. 5 If a testamentary guardian +be given by a father to his emancipated son, he must be ap- +proved by the governor in all cases, though inquiry into the +case is unnecessary. + +TITLE XIV +WHO CAN BE APPOINTED GUARDIANS BY WILL + +1 Persons who are in the power of others may be appointed +testamentary guardians no less than those who are independent; +and a man can also validly appoint one of his own slaves as +testamentary guardian, giving him at the same time his liberty; +and even in the absence of express manumission his freedom +is to be presumed to have been tacitly conferred on him, where- +by his appointment becomes a valid act, although of course it +is otherwise if the testator appointed him guardian in the er- +roneous belief that he was free. The appointment of another +man's slave as guardian, without any addition or qualification, +is void, though valid if the words `when he shall be free' are +added: but this latter form is ineffectual if the slave is the +testator's own, the appointment being void from the beginning. +2 If a lunatic or minor is appointed testamentary guardian, he +cannot act until, if a lunatic, he recovers his faculties, and, if a +minor, he attains the age of twenty-five years. + +3 There is no doubt that a guardian may be appointed for and +from a certain time, or conditionally, or before the institution of +the heir. 4 A guardian cannot, however, be appointed for a +particular matter or business, because his duties relate to the +person, and not merely to a particular business or matter. + +5 If a man appoints a guardian to his sons or daughters, he is +held to have intended them also for such as may be afterborn, +for the latter are included in the terms son and daughter. In the +case of grandsons, a question may arise whether they are im- +plicitly included in an appointment of guardians to sons; to which +we reply, that they are included in an appointment of guardians +if the term used is `children,' but not if it is `sons': for the words +son and grandson have quite different meanings. Of course an +appointment to afterborn children includes all children, and not +sons only. + +TITLE XV +OF THE STATUTORY GUARDIANSHIP OF AGNATES + +In default of a testamentary guardian, the statute of the Twelve +Tables assigns the guardianship to the nearest agnates, who +are hence called statutory guardians. 1 Agnates are persons +related to one another by males, that is, through their male as- +cendants; for instance, a brother by the same father, a brother's +son, or such son's son, a father's brother, his son or son's son. +But persons related only by blood through females are not +agnates, but merely cognates. Thus the son of your father's +sister is no agnate of yours, but merely your cognate, and +vice versa; for children are member's of their father's family, +and not of your mother's. 2 It was said that the statute confers +the guardianship, in case of intestacy, on the nearest agnates; +but by intestacy here must be understood not only complete +intestacy of a person having power to appoint a testamentary +guardian, but also the mere omission to make such appointment, +and also the case of a person appointed testamentary guardian +dying in the testator's lifetime. 3 Loss of status of any kind +ordinarily extinguishes rights by agnation, for agnation is a title +of civil law. Not every kind of loss of status, however, affects +rights by cognation; because civil changes cannot affect rights +annexed to a natural title to the same extent that they can affect +those annexed to a civil one. + +TITLE XVI +OF LOSS OF STATUS + +Loss of status, or change in one's previous civil rights, is of +three orders, greatest, minor or intermediate, and least. 1 The +greatest loss of status is the simultaneous loss of citizenship +and freedom, exemplified in those persons who by a terrible +sentence are made `slaves of punishment,' in freedmen con- +demned for ingratitude to their patrons, and in those who allow +themselves to be sold in order to share the purchase money +when paid. 2 Minor or intermediate loss of status is loss of +citizenship unaccompanied by loss of liberty, and is incident to +interdiction of fire and water and to deportation to an island. +3 The least loss of status occurs when citizenship and freedom +are retained, but a man's domestic position is altered, and is +exemplified by adrogation and emancipation. 4 A slave does +not suffer loss of status by being manumitted, for while a slave +he had no civil rights: 5 and where the change is one of dignity, +rather than of civil rights, there is no loss of status; thus it is no +loss of status to be removed from the senate. + +6 When it was said that rights by cognation are not affected +by loss of status, only the least loss of status was meant; by the +greatest loss of status they are destroyed -- for instance, by a +cognate's becoming a slave -- and are not recovered even by +subsequent manumission. Again, deportation to an island, +which entails minor or intermediate loss of status, destroys +rights by cognation. 7 When agnates are entitled to be guard- +ians, it is not all who are so entitled, but only those of the +nearest degree, though if all are in the same degree, all are +entitled. + +TITLE XVII +OF THE STATUTORY GUARDIANSHIP OF PATRONS + +The same statute of the Twelve Tables assigns the guardianship +of freedmen and freedwomen to the patron and his children, +and this guardianship, like that of agnates, is called statutory +guardianship; not that it is anywhere expressly enacted in that +statute, but because its interpretation by the jurists has procured +for it as much reception as it could have obtained from express +enactment: the fact that the inheritance of a freedman or +freedwoman, when they die intestate, was given by the statute +to the patron and his children, being deemed a proof that they +were intended to have the guardianship also, partly because in +dealing with agnates the statute coupled guardianship with +succession, and partly on the principle that where the advantage +of the succession is, there, as a rule, ought too to be the burden +of the guardianship. We say `as a rule,' because if a slave +below the age of puberty is manumitted by a woman, though +she is entitled, as patroness, to the succession, another person +is guardian. + +TITLE XVIII +OF THE STATUTORY GUARDIANSHIP OF PARENTS + +The analogy of the patron guardian led to another kind of so- +called statutory guardianship, namely that of a parent over a son +or daughter, or a grandson or granddaughter by a son, or any +other descendant through males, whom he emancipates below +the age of puberty: in which case he will be statutory guardian. + +TITLE XIX +OF FIDUCIARY GUARDIANSHIP + +There is another kind of guardianship known as fiduciary +guardianship, which arises in the following manner. If a parent +emancipates a son or daughter, a grandson or granddaughter, or +other descendant while under the age of puberty, he becomes +their statutory guardian: but if at his death he leaves male +children, they become fiduciary guardians of their own sons, or +brothers and sisters, or other relatives who had been thus +emancipated. But on the decease of a patron who is statutory +guardian his children become statutory guardians also; for a +son of a deceased person, supposing him not to have been +emancipated during his father's lifetime, becomes independent +at the latter's death, and does not fall under the power of his +brothers, nor, consequently, under their guardianship; whereas +a freedman, had he remained a slave, would at his master's +death have become the slave of the latter's children. The +guardianship, however, is not cast on these persons unless +they are of full age, which indeed has been made a general +rule in guardianship and curatorship of every kind by our +constitution. + +TITLE XX +OF ATILIAN GUARDIANS, AND THOSE APPOINTED +UNDER THE LEX IULIA ET TITIA + +Failing every other kind of guardian, at Rome one used to +be appointed under the lex Atilia by the praetor of the city +and the majority of the tribunes of the people; in the provinces +one was appointed under the lex Iulia et Titia by the president +of the province. 1 Again, on the appointment of a testamentary +guardian subject to a condition, or on an appointment limited +to take effect after a certain time, a substitute could be ap- +pointed under these statutes during the pendency of the condition, +or until the expiration of the term: and even if no condition +was attached to the appointment of a testamentary guardian, +a temporary guardian could be obtained under these statutes +until the succession had vested. In all these cases the office +of the guardian so appointed determined as soon as the con- +dition was fulfilled, or the term expired, or the succession +vested in the heir. 2 On the capture of a guardian by the ene- +my, the same statutes regulated the appointment of a substitute, +who continued in office until the return of the captive; for if he +returned, he recovered the guardianship by the law of post- +liminium. 3 But guardians have now ceased to be appointed +under these statutes, the place of the magistrates directed by +them to appoint being taken, first, by the consuls, who began +to appoint guardians to pupils of either sex after inquiry into +the case, and then by the praetors, who were substituted for +the consuls by the imperial constitutions; for these statutes con- +tained no provisions as to security to be taken from guardians +for the safety of their pupils' property, or compelling them to +accept the office in case of disinclination. 4 Under the present +law, guardians are appointed at Rome by the prefect of the city, +and by the praetor when the case falls within his jurisdiction; in +the provinces they are appointed, after inquiry, by the governor, +or by inferior magistrates at the latter's behest if the pupil's +property is of no great value. 5 By our constitution, however, +we have done away with all difficulties of this kind relating to +the appointing person, and dispensed with the necessity of +waiting for an order from the governor, by enacting that if the +property of the pupil or adult does not exceed five hundred +solidi, guardians or curators shall be appointed by the officers +known as defenders of the city, along with the holy bishop of +the place, or in the presence of other public persons, or by the +magistrates, or by the judge of the city of Alexandria; security +being given in the amounts required by the constitution, and +those who take it being responsible if it be insufficient. + +6 The wardship of children below the age of puberty is in ac- +cordance with the law of nature, which prescribes that persons +of immature years shall be under another's guidance and control. +7 As guardians have the management of their pupils' business, +they are liable to be sued on account of their administration as +soon as the pupil attains the age of puberty. + +TITLE XXI +OF THE AUTHORITY OF GUARDIANS + +In some cases a pupil cannot lawfully act without the authority +of his guardian, in others he can. Such authority, for instance, +is not necessary when a pupil stipulates for the delivery of pro- +perty, though it is otherwise where he is the promisor; for it is +an established rule that the guardian's authority is not necessary +for any act by which the pupil simply improves his own position, +though it cannot be dispensed with where he proposes to make +it worse. Consequently, unless the guardian authorizes all trans- +actions generating bilateral obligations, such as sale, hire, agency, +and deposit, the pupil is not bound, though he can compel the +other contracting party to discharge his own obligation. 1 +Pupils, however, require their guardian's authority before they +can enter on an inheritance, demand the possession of goods, +or accept an inheritance by way of trust, even though such act +be advantageous to them, and involves no chance of loss. +2 If the guardian thinks the transaction will be beneficial to his +pupil, his authority should be given presently and on the spot. +Subsequent ratification, or authority given by letter, has no +effect. 3 In case of a suit between guardian and pupil, as the +former cannot lawfully authorize an act in which he is personally +concerned or interested, a curator is now appointed, in lieu of +the old praetorian guardian, with whose co-operation the suit is +carried on, his office determining as soon as it is decided. + +TITLE XXII +OF THE MODES IN WHICH GUARDIANSHIP IS +TERMINATED + +Pupils of either sex are freed from guardianship when they reach +the age of puberty, which the ancients were inclined to determine, +in the case of males, not only by age, but also by reference to +the physical development of individuals. Our majesty, however, +has deemed it not unworthy of the purity of our times to apply +in the case of males also the moral considerations which, even +among the ancients, forbade in the case of females as indecent +the inspection of the person. Consequently by the promulgation +of our sacred constitution we have enacted that puberty in males +shall be considered to commence immediately on the completion +of the fourteenth year, leaving unaltered the rule judiciously laid +down by the ancients as to females, according to which they are +held fit for marriage after completing their twelfth year. 1 Again, +tutelage is terminated by adrogation or deportation of the pupil +before he attains the age of puberty, or by his being reduced to +slavery or taken captive by the enemy. 2 So too if a testa- +mentary guardian be appointed to hold office until the occur- +rence of a condition, on this occurrence his office determines. +3 Similarly tutelage is terminated by the death either of pupil or +of guardian. 4 If a guardian suffers such a loss of status as +entails loss of either liberty or citizenship, his office thereby +completely determines. It is, however, only the statutory kind +of guardianship which is destroyed by a guardian's undergoing +the least loss of status, for instance, by his giving himself in +adoption. Tutelage is in every case put an end to by the pupil's +suffering loss of status, even of the lowest order. 5 Testa- +mentary guardians appointed to serve until a certain time lay +down their office when that time arrives. 6 Finally, persons +cease to be guardians who are removed from their office on +suspicion, or who are enabled to lay down the burden of the +tutelage by a reasonable ground of excuse, according to the +rules presently stated. + +TITLE XXIII +OF CURATORS + +Males, even after puberty, and females after reaching marriage- +able years, receive curators until completing their twenty-fifth +year, because, though past the age fixed by law as the time of +puberty, they are not yet old enough to administer their own +affairs. 1 Curators are appointed by the same magistrates who +appoint guardians. They cannot legally be appointed by will, +though such appointment, if made, is usually confirmed by an +order of the praetor or governor of the province. 2 A person +who has reached the age of puberty cannot be compelled to +have a curator, except for the purpose of conducting a suit: +for curators, unlike guardians, can be appointed for a particular +matter. 3 Lunatics and prodigals, even though more than +twenty-five years of age, are by the statute of the Twelve +Tables placed under their agnates as curators; but now, as a +rule, curators are appointed for them at Rome by the prefect +of the city or praetor, and in the provinces by the governor, +after inquiry into the case. 4 Curators should also be given to +persons of weak mind, to the deaf, the dumb, and those suf- +fering from chronic disease, because they are not competent +to manage their own affairs. 5 Sometimes even pupils have +curators, as, for instance, when a statutory guardian is unfit +for his office: for if a pupil already has one guardian, he can- +not have another given him. Again, if a testamentary guardian, +or one appointed by the praetor or governor, is not a good +man of business, though perfectly honest in his management +of the pupil's affairs, it is usual for a curator to be appointed +to act with him. Again, curators are usually appointed in the +room of guardians temporarily excused from the duties of their +office. + +6 If a guardian is prevented from managing his pupil's affairs +by ill-health or other unavoidable cause, and the pupil is absent +or an infant, the praetor or governor of the province will, at the +guardian's risk, appoint by decree a person selected by the +latter to act as agent of the pupil. + +TITLE XXIV +OF THE SECURITY TO BE GIVEN BY GUARDIANS +AND CURATORS + +To prevent the property of pupils and of persons under curators +from being wasted or diminished by their curators or guardians +the praetor provides for security being given by the latter against +maladministration. This rule, however, is not without exceptions, +for testamentary guardians are not obliged to give security, the +testator having had full opportunities of personally testing their +fidelity and carefulness, and guardians and curators appointed +upon inquiry are similarly exempted, because they have been +expressly chosen as the best men for the place. 1 If two or +more are appointed by testament, or by a magistrate upon in- +quiry, any one of them may offer security for indemnifying the +pupil or person to whom he is curator against loss, and be pre- +ferred to his colleague, in order that he may either obtain the +sole administration, or else induce his colleague to offer larger +security than himself, and so become sole administrator by +preference. Thus he cannot directly call upon his colleague +to give security; he ought to offer it himself, and so give his +colleague the option of receiving security on the one hand, or +of giving it on the other. If none of them offer security, and the +testator left directions as to which was to administer the pro- +perty, this person must undertake it: in default of this, the +office is cast by the praetor's edict on the person whom the +majority of guardians or curators shall choose. If they cannot +agree, the praetor must interpose. The same rule, authorizing +a majority to elect one to administer the property, is to be +applied where several are appointed after inquiry by a magis- +trate. 2 It is to be noted that, besides the liability of guardians +and curators to their pupils, or the persons for whom they act, +for the management of their property, there is a subsidiary +action against the magistrate accepting the security, which may +be resorted to where all other remedies prove inadequate, and +which lies against those magistrates who have either altogether +omitted to take security from guardians or curators, or taken it +to an insufficient amount. According to the doctrines stated by +the jurists, as well as by imperial constitutions, this action may +be brought against the magistrate's heirs as well as against him +personally; 3 and these same constitutions ordain that guardians +or curators who make default in giving security may be compel- +led to do so by legal distraint of their goods. 4 This action, +however, will not lie against the prefect of the city, the praetor, +or the governor of a province, or any other magistrate author- +ized to appoint guardians, but only against those to whose usual +duties the taking of security belongs. + +TITLE XXV +OF GUARDIANS' AND CURATORS' GROUNDS OF +EXEMPTION + +There are various grounds on which persons are exempted +from serving the office of guardian or curator, of which the +most common is their having a certain number of children, +whether in power or emancipated. If, that is to say, a man +has, in Rome, three children living, in Italy four, or in the pro- +vinces five, he may claim exemption from these, as from other +public offices; for it is settled that the office of a guardian or +curator is a public one. Adopted children cannot be reckoned +for this purpose, though natural children given in adoption to +others may: similarly grandchildren by a son may be reckoned, +so as to represent their father, while those by a daughter may +not. It is, however, only living children who avail to excuse +their fathers from serving as guardian or curator; such as have +died are of no account, though the question has arisen whether +this rule does not admit of an exception where they have died +in war; and it is agreed that this is so, but only where they +have fallen on the field of battle: for these, because they have +died for their country, are deemed to live eternally in fame. +1 The Emperor Marcus, too, replied by rescript, as is recorded +in his Semestria, that employment in the service of the Treasury +is a valid excuse from serving as guardian or curator so long +as that employment lasts. 2 Again, those are excused from +these offices who are absent in the service of the state; and a +person already guardian or curator who has to absent himself +on public business is excused from acting in either of these +capacities during such absence, a curator being appointed to +act temporarily in his stead. On his return, he has to resume +the burden of tutelage, without being entitled to claim a year's +exemption, as has been settled since the opinion of Papinian +was delivered in the fifth book of his replies; for the year's +exemption or vacation belongs only to such as are called to a +new tutelage. 3 By a rescript of the Emperor Marcus persons +holding any magistracy may plead this as a ground of exemption, +though it will not enable them to resign an office of this kind +already entered upon. 4 No guardian or curator can excuse +himself on the ground of an action pending between himself +and his ward, unless it relates to the latter's whole estate or +to an inheritance. 5 Again, a man who is already guardian +or curator to three persons without having sought after the +office is entitled to exemption from further burdens of the kind +so long as he is actually engaged with these, provided that the +joint guardianship of several pupils, or administration of an un- +divided estate, as where the wards are brothers, is reckoned +as one only. 6 If a man can prove that through poverty he is +unequal to the burden of the office, this, according to rescripts +of the imperial brothers and of the Emperor Marcus, is a valid +ground of excuse. 7 Ill-health again is a sufficient excuse if it +be such as to prevent a man from attending to even his own +affairs: 8 and the Emperor Pius decided by a rescript that +persons unable to read ought to be excused, though even +these are not incapable of transacting business. 9 A man too +is at once excused if he can show that a father has appointed +him testamentary guardian out of enmity, while conversely no +one can in any case claim exemption who promised the ward's +father that he would act as guardian to them: 10 and it was +settled by a rescript of M. Aurelius and L. Verus that the alleg- +ation that one was unacquainted with the pupil's father cannot +be admitted as a ground of excuse. 11 Enmity against the ward's +father, if extremely bitter, and if there was no reconciliation, is +usually accepted as a reason for exemption from the office of +guardian; 12 and similarly a person can claim to be excused +whose status or civil rights have been disputed by the father +of the ward in an action. 13 Again, a person over seventy +years of age can claim to be excused from acting as guardian +or curator, and by the older law persons less than twenty-five +were similarly exempted. But our constitution, having for- +bidden the latter to aspire to these functions, has made excuses +unnecessary. The effect of this enactment is that no pupil or +person under twenty-five years of age is to be called to a stat- +utory guardianship; for it was most incongruous to place persons + under the guardianship or administration of those who are +known themselves to need assistance in the management of +their own affairs, and are themselves governed by others. +14 The same rule is to be observed with soldiers, who, even +though they desire it, may not be admitted to the office of +guardian: 15 and finally grammarians, rhetoricians, and +physicians at Rome, and those who follow these callings in +their own country and are within the number fixed by law, are +exempted from being guardians or curators. + +16 If a person who has several grounds of excuse wishes to +obtain exemption, and some of them are not allowed, he is +not prohibited from alleging others, provided he does this +within the time prescribed. Those desirous of excusing them- +selves do not appeal, but ought to allege their grounds of +excuse within fifty days next after they hear of their appoint- +ment, whatever the form of the latter, and whatever kind of +guardians they may be, if they are within a hundred miles +of the place where they were appointed: if they live at a +distance of more than a hundred miles, they are allowed a day +for every twenty miles, and thirty days in addition, but this time, +as Scaevola has said, must never be so reckoned as to amount +to less than fifty days. 17 A person appointed guardian is +deemed to be appointed to the whole patrimony; 18 and after +he has once acted as guardian he cannot be compelled against +his will to become the same person's curator -- not even if the +father who appointed him testamentary guardian added in the +will that he made him curator, too, as soon as the ward reached +fourteen years of age -- this having been decided by a rescript +of the Emperors Severus and Antoninus. 19 Another rescript +of the same emperors settled that a man is entitled to be ex- +cused from becoming his own wife's curator, even after inter- +meddling with her affairs. 20 No man is discharged from the +burden of guardianship who has procured exemption by false +allegations. + +TITLE XXVI +OF GUARDIANS OR CURATORS WHO ARE SUSPECTED + +The accusation of guardians or curators on suspicion origin- +ated in the statute of the Twelve Tables; 1 the removal of those +who are accused on suspicion is part of the jurisdiction, at Rome, +of the praetor, and in the provinces of their governors and of +the proconsul's legate. 2 Having shown what magistrates can +take cognizance of this subject, let us see what persons are +liable to be accused on suspicion. All guardians are liable, +whether appointed by testament or otherwise; consequently +even a statutory guardian may be made the object of such an +accusation. But what is to be said of a patron guardian? Even +here we must reply that he too is liable; though we must re- +member that his reputation must be spared in the event of his +removal on suspicion. 3 The next point is to see what persons +may bring this accusation; and it is to be observed that the +action partakes of a public character, that is to say, is open +to all. Indeed, by a rescript of Severus and Antoninus even +women are made competent to bring it, but only those who +can allege a close tie of affection as their motive; for instance, +a mother, nurse, grandmother, or sister. And the praetor +will allow any woman to prefer the accusation in whom he +finds an affection real enough to induce her to save a pupil +from suffering harm, without seeming to be more forward +than becomes her sex. 4 Persons below the age of puberty +cannot accuse their guardians on suspicion; but by a rescript +of Severus and Antoninus it has been permitted to those who +have reached that age to deal thus with their curators, after +taking the advice of their nearest relations. 5 A guardian is +‘suspected' who does not faithfully discharge his tutorial func- +tions, though he may be perfectly solvent, as was the opinion +also of Julian. Indeed, Julian writes that a guardian may be +removed on suspicion before he commences his administration, +and a constitution has been issued in accordance with this view. +6 A person removed from office on suspicion incurs infamy +if his offence was fraud, but not if it was merely negligence. +7 As Papinian held, on a person being accused on suspicion +he is suspended from the administration until the action is +decided. 8 If a guardian or curator who is accused on sus- +picion dies after the commencement of the action, but before +it has been decided, the action is thereby extinguished; 9 and +if a guardian fails to appear to a summons of which the object +is to fix by judicial order a certain rate of maintenance for the +pupil, the rescript of the Emperors Severus and Antoninus +provides that the pupil may be put in possession of the guard- +ian's property, and orders the sale of the perishable portions +thereof after appointment of a curator. Consequently, a guard- +ian may be removed as suspected who does not provide his +pupil with sufficient maintenance. 10 If, on the other hand, +the guardian appears, and alleges that the pupil's property +is too inconsiderable to admit of maintenance being decreed, +and it is shown that the allegation is false, the proper course +is for him to be sent for punishment to the prefect of the city, +like those who purchase a guardianship with bribery. 11 So +too a freedman, convicted of having acted fraudulently as +guardian of the sons or grandsons of his patron, should be +sent to the prefect of the city for punishment. 12 Finally, it +is to be noted, that guardians or curators who are guilty of +fraud in their administration must be removed from their office +even though they offer to give security, for giving security does +not change the evil intent of the guardian, but only gives him a +larger space of time wherein he may injure the pupil's property: +13 for a man's mere character or conduct may be such as to +justify one's deeming him `suspected.' No guardian or curator, +however, may be removed on suspicion merely because he is +poor, provided he is also faithful and diligent. + + +* BOOK II * + +TITLES +I. Of the different kinds of Things +II. Of incorporeal Things +III. Of servitudes +IV. Of usufruct +V. Of use and habitation +VI. Of usucapion and long possession +VII. Of gifts +VIII. Of persons who may, and who may +not alienate +IX. Of persons through whom we acquire +X. Of the execution of wills +XI. Of soldiers' wills +XII. Of persons incapable of making wills +XIII. Of the disinherison of children +XIV. Of the institution of the heir +XV. Of ordinary substitution +XVI. Of pupillary substitution +XVII. Of the modes in which wills become +void +XVIII. Of an unduteous will +XIX. Of the kinds of and differences +between heirs +XX. Of legacies +XXI. Of the ademption and transference +of legacies +XXII. Of the lex Falcidia +XXIII. Of trust inheritances +XXIV. Of trust bequests of single things +XXV. Of codicils + +TITLE I +OF THE DIFFERENT KINDS OF THINGS + +In the preceding book we have expounded the law of Persons: +now let us proceed to the law of Things. Of these, some admit +of private ownership, while others, it is held, cannot belong to +individuals: for some things are by natural law common to all, +some are public, some belong to a society or corporation, and +some belong to no one. But most things belong to individuals, +being acquired by various titles, as will appear from what +follows. + +1 Thus, the following things are by natural law common to all -- +the air, running water, the sea, and consequently the sea-shore. +No one therefore is forbidden access to the sea-shore, pro- +vided he abstains from injury to houses, monuments, and +buildings generally; for these are not, like the sea itself, subject +to the law of nations. 2 On the other hand, all rivers and +harbours are public, so that all persons have a right to fish +therein. 3 The sea-shore extends to the limit of the highest tide +in time of storm or winter. 4 Again, the public use of the banks +of a river, as of the river itself, is part of the law of nations; +consequently every one is entitled to bring his vessel to the +bank, and fasten cables to the trees growing there, and use it +as a resting-place for the cargo, as freely as he may navigate +the river itself. But the ownership of the bank is in the owner +of the adjoining land, and consequently so too is the ownership +of the trees which grow upon it. 5 Again, the public use of +the sea-shore, as of the sea itself, is part of the law of nations; +consequently every one is free to build a cottage upon it for +purposes of retreat, as well as to dry his nets and haul them +up from the sea. But they cannot be said to belong to any +one as private property, but rather are subject to the same +law as the sea itself, with the soil or sand which lies beneath it. +6 As examples of things belonging to a society or corporation, +and not to individuals, may be cited buildings in cities -- theatres, +racecourses, and such other similar things as belong to cities in +their corporate capacity. + +7 Things which are sacred, devoted to superstitious uses, or +sanctioned, belong to no one, for what is subject to divine law +is no one's property. 8 Those things are sacred which have +been duly consecrated to God by His ministers, such as +churches and votive offerings which have been properly dedi- +cated to His service; and these we have by our constitution +forbidden to be alienated or pledged, except to redeem +captives from bondage. If any one attempts to consecrate a +thing for himself and by his own authority, its character is un- +altered, and it does not become sacred. The ground on which +a sacred building is erected remains sacred even after the +destruction of the building, as was declared also by Papinian. +9 Any one can devote a place to superstitious uses of his own +free will, that is to say, by burying a dead body in his own land. +It is not lawful, however, to bury in land which one owns jointly +with some one else, and which has not hitherto been used for +this purpose, without the other's consent, though one may +lawfully bury in a common sepulchre even without such con- +sent. Again, the owner may not devote a place to superstitious +uses in which another has a usufruct, without the consent of the +latter. It is lawful to bury in another man's ground, if he gives +permission, and the ground thereby becomes religious even +though he should not give his consent to the interment till after +it has taken place. 10 Sanctioned things, too, such as city walls +and gates, are, in a sense, subject to divine law, and therefore +are not owned by any individual. Such walls are said to be +`sanctioned,' because any offence against them is visited with +capital punishment; for which reason those parts of the laws in +which we establish a penalty for their transgressors are called +sanctions. + +11 Things become the private property of individuals in many +ways; for the titles by which we acquire ownership in them are +some of them titles of natural law, which, as we said, is called +the law of nations, while some of them are titles of civil law. It +will thus be most convenient to take the older law first: and +natural law is clearly the older, having been instituted by nature +at the first origin of mankind, whereas civil laws first came into +existence when states began to be founded, magistrates to be +created, and laws to be written. + +12 Wild animals, birds, and fish, that is to say all the creatures +which the land, the sea, and the sky produce, as soon as they +are caught by any one become at once the property of their +captor by the law of nations; for natural reason admits the title +of the first occupant to that which previously had no owner. So +far as the occupant's title is concerned, it is immaterial whether +it is on his own land or on that of another that he catches wild +animals or birds, though it is clear that if he goes on another +man's land for the sake of hunting or fowling, the latter may +forbid him entry if aware of his purpose. An animal thus +caught by you is deemed your property so long as it is com- +pletely under your control; but so soon as it has escaped from +your control, and recovered its natural liberty, it ceases to be +yours, and belongs to the first person who subsequently catches +it. It is deemed to have recovered its natural liberty when you +have lost sight of it, or when, though it is still in your sight, it +would be difficult to pursue it. 13 It has been doubted +whether a wild animal becomes your property immediately +you have wounded it so severely as to be able to catch it. +Some have thought that it becomes yours at once, and remains +so as long as you pursue it, though it ceases to be yours when +you cease the pursuit, and becomes again the property of any +one who catches it: others have been of opinion that it does +not belong to you till you have actually caught it. And we con- +firm this latter view, for it may happen in many ways that you +will not capture it. 14 Bees again are naturally wild; hence if +a swarm settles on your tree, it is no more considered yours, +until you have hived it, than the birds which build their nests +there, and consequently if it is hived by some one else, it be- +comes his property. So too any one may take the honey-combs +which bees may chance to have made, though, of course, if you +see some one coming on your land for this purpose, you have +a right, to forbid him entry before that purpose is effected. A +swarm which has flown from your hive is considered to remain +yours so long as it is in your sight and easy of pursuit: other- +wise it belongs to the first person who catches it. 15 Peafowl +too and pigeons are naturally wild, and it is no valid objection +that they are used to return to the same spots from which they +fly away, for bees do this, and it is admitted that bees are wild +by nature; and some people have deer so tame that they will +go into the woods and yet habitually come back again, and still +no one denies that they are naturally wild. With regard, how- +ever, to animals which have this habit of going away and +coming back again, the rule has been established that they are +deemed yours so long as they have the intent to return: for if +they cease to have this intention they cease to be yours, and +belong to the first person who takes them; and when they lose +the habit they seem also to have lost the intention of returning. +16 Fowls and geese are not naturally wild, as is shown by the +fact that there are some kinds of fowls and geese which we +call wild kinds. Hence if your geese or fowls are frightened +and fly away, they are considered to continue yours wherever +they may be, even though you have lost sight of them; and any +one who keeps them intending thereby to make a profit is held +guilty of theft. 17 Things again which we capture from the +enemy at once become ours by the law of nations, so that by +this rule even free men become our slaves, though, if they +escape from our power and return to their own people, they +recover their previous condition. 18 Precious stones too, and +gems, and all other things found on the sea-shore, become +immediately by natural law the property of the finder: 19 and +by the same law the young of animals of which you are the +owner become your property also. + +20 Moreover, soil which a river has added to your land by +alluvion becomes yours by the law of nations. Alluvion is an im- +perceptible addition; and that which is added so gradually that +you cannot perceive the exact increase from one moment of +time to another is added by alluvion. 21 If, however, the +violence of the stream sweeps away a parcel of your land and +carries it down to the land of your neighbour it clearly remains +yours; though of course if in the process of time it becomes + firmly attached to your neighbour's land, they are deemed +from that time to have become part and parcel thereof. 22 +When an island rises in the sea, though this rarely happens, +it belongs to the first occupant; for, until occupied, it is held +to belong to no one. If, however (as often occurs), an island +rises in a river, and it lies in the middle of the stream, it belongs +in common to the landowners on either bank, in proportion +to the extent of their riparian interest; but if it lies nearer to +one bank than to the other, it belongs to the landowners on +that bank only. If a river divides into two channels, and by +uniting again these channels transform a man's land into an +island, the ownership of that land is in no way altered: 23 +but if a river entirely leaves its old channel, and begins to +run in a new one, the old channel belongs to the landowners +on either side of it in proportion to the extent of their riparian +interest, while the new one acquires the same legal character +as the river itself, and becomes public. But if after a while +the river returns to its old channel, the new channel again +becomes the property of those who possess the land along +its banks. 24 It is otherwise if one's land is wholly flooded, +for a flood does not permanently alter the nature of the land, +and consequently if the water goes back the soil clearly be- +longs to its previous owner. + +25 When a man makes a new object out of materials belong- +ing to another, the question usually arises, to which of them, by +natural reason, does this new object belong -- to the man who +made it, or to the owner of the materials? For instance, one +man may make wine, or oil, or corn, out of another man's +grapes, olives, or sheaves; or a vessel out of his gold, silver, +or bronze; or mead of his wine and honey; or a plaster or +eyesalve out of his drugs; or cloth out of his wool; or a ship, +a chest, or a chair out of his timber. After many controversies +between the Sabinians and Proculians, the law has now been +settled as follows, in accordance with the view of those who +followed a middle course between the opinions of the two +schools. If the new object can be reduced to the materials +out of which it was made, it belongs to the owner of the +materials; if not, it belongs to the person who made it. For +instance, a vessel can be melted down, and so reduced to +the rude material -- bronze, silver, or gold -- of which it is +made: but it is impossible to reconvert wine into grapes, oil +into olives, or corn into sheaves, or even mead into the wine +and honey out of which it was compounded. But if a man +makes a new object out of materials which belong partly to +him and partly to another -- for instance, mead of his own +wine and another's honey, or a plaster or eyesalve of drugs +which are not all his own, or cloth of wool which belongs +only in part to him -- in this case there can be no doubt that +the new object belongs to its creator, for he has contributed +not only part of the material, but the labour by which it was +made. 26 If, however, a man weaves into his own cloth +another man's purple, the latter, though the more valuable, +becomes part of the cloth by accession; but its former owner +can maintain an action of theft against the purloiner, and also +a condiction, or action for reparative damages, whether it +was he who made the cloth, or some one else; for although +the destruction of property is a bar to a real action for its +recovery, it is no bar to a condiction against the thief and +certain other possessors. 27 If materials belonging to two +persons are mixed by consent -- for instance, if they mix their +wines, or melt together their gold or their silver -- the result +of the mixture belongs to them in common. And the law is +the same if the materials are of different kinds, and their mix- +ture consequently results in a new object, as where mead is +made by mixing wine and honey, or electrum by mixing gold +and silver; for even here it is not doubted that the new object +belongs in common to the owners of the materials. And if it +is by accident, and not by the intention of the owners, that +materials have become mixed, the law is the same, whether +they were of the same or of different kinds. 28 But if the +corn of Titius has become mixed with yours, and this by +mutual consent, the whole will belong to you in common, +because the separate bodies or grains, which before +belonged to one or the other of you in severalty, have by +consent on both sides been made your joint property. If, +however, the mixture was accidental, or if Titius mixed the +two parcels of corn without your consent, they do not belong +to you in common, because the separate grains remain distinct, +and their substance is unaltered; and in such cases the corn +no more becomes common property than does a flock formed +by the accidental mixture of Titius's sheep with yours. But if +either of you keeps the whole of the mixed corn, the other +can bring a real action for the recovery of such part of it as +belongs to him, it being part of the province of the judge to +determine the quality of the wheat which belonged to each. +29 If a man builds upon his own ground with another's materials, +the building is deemed to be his property, for buildings become +a part of the ground on which they stand. And yet he who +was owner of the materials does not cease to own them, but +he cannot bring a real action for their recovery, or sue for their +production, by reason of a clause in the Twelve Tables pro- +viding that no one shall be compelled to take out of his house +materials (tignum), even though they belong to another, +which have once been built into it, but that double their value +may be recovered by the action called ‘de tigno iniuncto.’ The +term tignum includes every kind of material employed in building, +and the object of this provision is to avoid the necessity of having +buildings pulled down; but if through some cause or other they +should be destroyed, the owner of the materials, unless he has +already sued for double value, may bring a real action for re- +covery, or a personal action for production. 30 On the other +hand, if one man builds a house on another's land with his own +materials, the house belongs to the owner of the land. In this +case, however, the right of the previous owner in the materials +is extinguished, because he is deemed to have voluntarily parted +with them, though only, of course, if he was aware that the land +on which he was building belonged to another man. Conse- +quently, though the house should be destroyed, he cannot claim +the materials by real action. Of course, if the builder of the +house has possession of the land, and the owner of the latter +claims the house by real action, but refuses to pay for the +materials and the workmen's wages, he can be defeated by +the plea of fraud, provided the builder's possession is in good +faith: for if he knew that the land belonged to some one else it +may be urged against him that he was to blame for rashly build- +ing on land owned to his knowledge by another man. 31 If +Titius plants another man's shrub in land belonging to himself, +the shrub will become his; and, conversely, if he plants his +own shrub in the land of Maevius, it will belong to Maevius. +In neither case, however, will the ownership be transferred until +the shrub has taken root: for, until it has done this, it continues +to belong to the original owner. So strict indeed is the rule that +the ownership of the shrub is transferred from the moment it has +taken root, that if a neighbour's tree grows so close to the land +of Titius that the soil of the latter presses round it, whereby it +drives its roots entirely into the same, we say the tree becomes +the property of Titius, on the ground that it would be unreason- +able to allow the owner of a tree to be a different person from +the owner of the land in which it is rooted. Consequently, if a +tree which grows on the boundaries of two estates drives its +roots even partially into the neighbour's soil, it becomes the +common property of the two landowners. 32 On the same +principle corn is reckoned to become a part of the soil in which +it is sown. But exactly as (according to what we said) a man +who builds on another's land can defend himself by the plea of +fraud when sued for the building by the owner of the land, so +here too one who has in good faith and at his own expense put +crops into another man's soil can shelter himself behind the +same plea, if refused compensation for labour and outlay. 33 +Writing again, even though it be in letters of gold, becomes a +part of the paper or parchment, exactly as buildings and sown +crops become part of the soil, and consequently if Titius writes +a poem, or a history, or a speech on your paper and parch- +ment, the whole will be held to belong to you, and not to Titius. +But if you sue Titius to recover your books or parchments, and +refuse to pay the value of the writing, he will be able to defend +himself by the plea of fraud, provided that he obtained possession +of the paper or parchment in good faith. 34 Where, on the other +hand, one man paints a picture on another's board, some think +that the board belongs, by accession, to the painter, others, that +the painting, however great its excellence, becomes part of the +board. The former appears to us the better opinion, for it is +absurd that a painting by Apelles or Parrhasius should be an +accessory of a board which, in itself, is thoroughly worthless. +Hence, if the owner of the board has possession of the picture, +and is sued for it by the painter, who nevertheless refuses to +pay the cost of the board, he will be able to repel him by the +plea of fraud. If, on the other hand, the painter has possession, +it follows from what has been said that the former owner of the +board, [if he is to be able to sue at all], must claim it by a modi- +fied and not by a direct action; and in this case, if he refuses to +pay the cost of the picture, he can be repelled by the plea of +fraud, provided that the possession of the painter be in good +faith; for it is clear, that if the board was stolen by the painter, +or some one else, from its former owner, the latter can bring +the action of theft. + +35 If a man in good faith buys land from another who is not its +owner, though he believed he was, or acquires it in good faith +by gift or some other lawful title, natural reason directs that the +fruits which he has gathered shall be his, in consideration of his +care and cultivation: consequently if the owner subsequently +appears and claims the land by real action, he cannot sue for +fruits which the possessor has consumed. This, however, is +not allowed to one who takes possession of land which to his +knowledge belongs to another person, and therefore he is +obliged not only to restore the land, but to make compensation +for fruits even though they have been consumed. 36 A person +who has a usufruct in land does not become owner of the fruits +which grow thereon until he has himself gathered them; +consequently fruits which, at the moment of his decease, though +ripe, are yet ungathered, do not belong to his heir, but to the +owner of the land. What has been said applies also in the main +to the lessee of land. 37 The term `fruits,' when used of animals, +comprises their young, as well as milk, hair, and wool; thus +lambs, kids, calves, and foals, belong at once, by the natural law +of ownership, to the fructuary. But the term does not include +the offspring of a female slave, which consequently belongs to +her master; for it seemed absurd to reckon human beings as +fruits, when it is for their sake that all other fruits have been pro- +vided by nature. 38 The usufructuary of a flock, as Julian held, +ought to replace any of the animals which die from the young +of the rest, and, if his usufruct be of land, to replace dead vines +or trees; for it is his duty to cultivate according to law and use +them like a careful head of a family. + +39 If a man found treasure in his own land, the Emperor Hadrian, +following natural equity, adjudged to him the ownership of it, as +he also did to a man who found one by accident in soil which +was sacred or religious. If he found it in another man's land by +accident, and without specially searching for it, he gave half to +the finder, half to the owner of the soil; and upon this principle, +if a treasure were found in land belonging to the Emperor, he +decided that half should belong to the latter, and half to the +finder; and consistently with this, if a man finds one in land which +belongs to the imperial treasury or the people, half belongs to +him, and half to the treasury or the State. + +40 Delivery again is a mode in which we acquire things by +natural law; for it is most agreeable to natural equity that where +a man wishes to transfer his property to another person his wish +should be confirmed. Consequently corporeal things, whatever +be their nature, admit of delivery, and delivery by their owner +makes them the property of the alienee; this, for instance, is the +mode of alienating stipendiary and tributary estates, that is to +say, estates lying in provincial soil; between which, however, +and estates in Italy there now exists, according to our consti- +tution, no difference. 41 And ownership is transferred whether +the motive of the delivery be the desire to make a gift, to confer +a dowry, or any other motive whatsoever. When, however, a +thing is sold and delivered, it does not become the purchaser's +property until he has paid the price to the vendor, or satisfied +him in some other way, as by getting some one else to accept +liability for him, or by pledge. And this rule, though laid down +also in the statute of the Twelve Tables, is rightly said to be a +dictate of the law of all nations, that is, of natural law. But if +the vendor gives the purchaser credit, the goods sold belong +to the latter at once. 42 It is immaterial whether the person who +makes delivery is the owner himself, or some one else acting +with his consent. 43 Consequently, if any one is entrusted by +an owner with the management of his business at his own free +discretion, and in the execution of his commission sells and +delivers any article, he makes the receiver its owner. 44 In +some cases even the owner's bare will is sufficient, without +delivery, to transfer ownership. For instance, if a man sells or +makes you a present of a thing which he has previously lent or +let to you or placed in your custody, though it was not from +that motive he originally delivered it to you, yet by the very +fact that he suffers it to be yours you at once become its owner +as fully as if it had been originally delivered for the purpose of +passing the property. 45 So too if a man sells goods lying in +a warehouse, he transfers the ownership of them to the pur- +chaser immediately he has delivered to the latter the keys of +the warehouse. 46 Nay, in some cases the will of the owner, +though directly only towards an uncertain person, transfers the +ownership of the thing, as for instance when praetors and +consuls throw money to a crowd: here they know not which +specific coin each person will get, yet they make the unknown +recipient immediately owner, because it is their will that each +shall have what he gets. 47 Accordingly, it is true that if a +man takes possession of property abandoned by its previous +owner, he at once becomes its owner himself: and a thing is +said to be abandoned which its owner throws away with the +deliberate intention that it shall no longer be part of his property, +and of which, consequently, he immediately ceases to be the +owner. 48 It is otherwise with things which are thrown over- +board during a storm, in order to lighten the ship; in the +ownership of these things there is no change, because the +reason for which they are thrown overboard is obviously not +that the owner does not care to own them any longer, but that +he and the ship besides may be more likely to escape the perils +of the sea. Consequently any one who carries them off after +they are washed on shore, or who picks them up at sea and +keeps them, intending to make a profit thereby, commits a +theft; for such things seem to be in much the same position as +those which fall out of a carriage in motion unknown to their +owners. + +TITLE II +OF INCORPOREAL THINGS + +Some things again are corporeal, and others incorporeal. 1 +Those are corporeal which in their own nature are tangible, +such as land, slaves, clothing, gold, silver, and others innum- +erable. 2 Things incorporeal are such as are intangible: rights, +for instance, such as inheritance, usufruct, and obligations, +however acquired. And it is no objection to this definition that +an inheritance comprises things which are corporeal; for the +fruits of land enjoyed by a usufructuary are corporeal too, and +obligations generally relate to the conveyance of something cor- +poreal, such as land, slaves, or money, and yet the right of +succession, the right of usufruct, and the right existing in every +obligation, are incorporeal. 3 So too the rights appurtenant to +land, whether in town or country, which are usually called +servitudes, are incorporeal things. + +TITLE III +OF SERVITUDES + +The following are rights appurtenant to country estates: ‘iter,’ +the right of passage at will for a man only, not of driving beast or +vehicles; ‘actus,’ the right of driving beasts or vehicles (of which +two the latter contains the former, though the former does not +contain the latter, so that a man who has iter has not necessarily +actus, while if he has actus he has also iter, and consequently +can pass himself even though unaccompanied by cattle); ‘via,’ +which is the right of going, of driving any thing whatsoever, and +of walking, and which thus contains both iter and actus; and +fourthly, ‘aquaeductus,’ the right of conducting water over +another man's land. 1 Servitudes appurtenant to town estates +are rights which are attached to buildings; and they are said to +appertain to town estates because all buildings are called `town +estates,' even though they are actually in the country. The +following are servitudes of this kind -- the obligation of a man +to support the weight of his neighbour's house, to allow a beam +to be let into his wall, or to receive the rain from his neighbour's +roof on to his own either in drops or from a shoot, or from a +gutter into his yard; the converse right of exemption from any +of these obligations; and the right of preventing a neighbour +from raising his buildings, lest thereby one's ancient lights be +obstructed. 2 Some think that among servitudes appurtenant +to country estates ought properly to be reckoned the rights of +drawing water, of watering cattle, of pasture, of burning lime, +and of digging sand. + +3 These servitudes are called rights attached to estates, because +without estates they cannot come into existence; for no one +can acquire or own a servitude attached to a town or country +estate unless he has an estate for it to be attached to. 4 When +a landowner wishes to create any of these rights in favour of his +neighbour, the proper mode of creation is agreement followed +by stipulation. By testament too one can impose on one's heir +an obligation not to raise the height of his house so as to ob- +struct his neighbour's ancient lights, or bind him to allow a +neighbour to let a beam into his wall, to receive the rain water +from a neighbour’s pipe, or allow a neighbour a right of way, +of driving cattle or vehicles over his land, or conducting water +over it. + +TITLE IV +OF USUFRUCT + +Usufruct is the right of using and taking the fruits of property +not one's own, without impairing the substance of that property; +for being a right over a corporeal thing, it is necessarily ex- +tinguished itself along with the extinction of the latter. 1 Usu- +fruct is thus a right detached from the aggregate of rights +involved in ownership, and this separation can be effected in +very many ways: for instance, if one man gives another a +usufruct by legacy, the legatee has the usufruct, while the +heir has merely the bare ownership; and, conversely, if a man +gives a legacy of an estate, reserving the usufruct, the usufruct +belongs to the heir, while only the bare ownership is vested in +the legatee. Similarly, he can give to one man a legacy of the +usufruct, to another one of the estate, subject to the other's +usufruct. If it is wished to create a usufruct in favour of another +person otherwise than by testament, the proper mode is +agreement followed by stipulation. However, lest ownership +should be entirely valueless through the permanent separation +from it of the usufruct, certain modes have been approved in +which usufruct may be extinguished, and thereby revert to the +owner. 2 A usufruct may be created not only in land or build- +ings, but also in slaves, cattle, and other objects generally, +except such as are actually consumed by being used, of which +a genuine usufruct is impossible by both natural and civil law. +Among them are wine, oil, grain, clothing, and perhaps we may +also say coined money; for a sum of money is in a sense +extinguished by changing hands, as it constantly does in simply +being used. For convenience sake, however, the senate en- +acted that a usufruct could be created in such things, provided +that due security be given to the heir. Thus if a usufruct of +money be given by legacy, that money, on being delivered to +the legatee, becomes his property, though he has to give +security to the heir that he will repay an equivalent sum on his +dying or undergoing a loss of status. And all things of this class, +when delivered to the legatee, become his property, though +they are first appraised, and the legatee then gives security that +if he dies or undergoes a loss of status he will ay the value +which was put upon them. Thus in point of fact the senate did +not introduce a usufruct of such things, for that was beyond its +power, but established a right analogous to usufruct by requiring +security. 3 Usufruct determines by the death of the usufructuary, +by his undergoing either of the greater kinds of loss of status, +by its improper exercise, and by its non-exercise during the +time fixed by law; all of which points are settled by our consti- +tution. It is also extinguished when surrendered to the owner +by the usufructuary (though transfer to a third person is in- +operative); and again, conversely, by the fructuary becoming +owner of the thing, this being called consolidation. Obviously, +a usufruct of a house is extinguished by the house being burnt +down, or falling through an earthquake or faulty construction; +and in such case a usufruct of the site cannot be claimed. 4 +When a usufruct determines, it reverts to and is reunited with +the ownership; and from that moment he who before was +but bare owner of the thing begins to have full power over it. + +TITLE V +OF USE AND HABITATION + +A bare use, or right of using a thing, is created in the same +mode as a usufruct, and the modes in which it may determine +are the same as those just described. 1 A use is a less right +than a usufruct; for if a man has a bare use of an estate, he is +deemed entitled to use the vegetables, fruit, flowers, hay, straw, +and wood upon it only so far as his daily needs require: he +may remain on the land only so long as he does not incon- +venience its owner, or impede those who are engaged in its +cultivation; but he cannot let or sell or give away his right to a +third person, whereas a usufructuary may. 2 Again, a man +who has the use of a house is deemed entitled only to live in it +himself; he cannot transfer his right to a third person, and it +scarcely seems to be agreed that he may take in a guest; but +besides himself he may lodge there his wife, children, and +freedmen, and other free persons who form as regular a part +of his establishment as his slaves. Similarly, if a woman has +the use of a house, her husband may dwell there with her. +3 When a man has the use of a slave, he has only the right +of personally using his labour and services; in no way is he +allowed to transfer his right to a third person, and the same +applies to the use of beasts of burden. 4 If a legacy be given +of the use of a herd or of a flock of sheep, the usuary may +not use the milk, lambs, or wool, for these are fruits; but of +course he may use the animals for the purpose of manuring +his land. + +5 If a right of habitation be given to a man by legacy or in +some other mode, this seems to be neither a use nor a usufruct, +but a distinct and as it were independent right; and by a consti- +tution which we have published in accordance with the opinion +of Marcellus, and in the interests of utility, we have permitted +persons possessed of this right not only to live in the building +themselves, but also to let it out to others. + +6 What we have here said concerning servitudes, and the +rights of usufruct, use, and habitation, will be sufficient; of inherit- +ance and obligations we will treat in their proper places respect- +ively. And having now briefly expounded the modes in which we +acquire things by the law of nations, let us turn and see in what +modes they are acquired by statute or by civil law. + +TITLE VI +OF USUCAPION AND LONG POSSESSION + +It was a rule of the civil law that if a man in good faith bought +a thing, or received it by way of gift, or on any other lawful +ground, from a person who was not its owner, but whom he +believed to be such, he should acquire it by usucapion -- if a +movable, by one year's possession, and by two years' pos- +session if an immovable, though in this case only if it were in +Italian soil; -- the reason of the rule being the inexpediency of +allowing ownership to be long unascertained. The ancients +thus considered that the periods mentioned were sufficient to +enable owners to look after their property; but we have arrived +at a better opinion, in order to save people from being over- +quickly defrauded of their own, and to prevent the benefit of +this institution from being confined to only a certain part of the +empire. We have consequently published a constitution on +the subject, enacting that the period of usucapion for movables +shall be three years, and that ownership of immovables shall +be acquired by long possession -- possession, that is to say, +for ten years, if both parties dwell in the same province, and +for twenty years if in different provinces; and things may in +these modes be acquired in full ownership, provided the pos- +session commences on a lawful ground, not only in Italy but in +every land subject to our sway. + +1 Some things, however, not withstanding the good faith of +the possessor, and the duration of his possession, cannot be +acquired by usucapion; as is the case, for instance, if one pos- +sesses a free man, a thing sacred or religious, or a runaway +slave. 2 Things again of which the owner lost possession by +theft, or possession of which was gained by violence, cannot +be acquired by usucapion, even by a person who has pos- +sessed them in good faith for the specified period: for stolen +things are declared incapable of usucapion by the statute of the +Twelve Tables and by the lex Atinia, and things taken with +violence by the lex Iulia et Plautia. 3 The statement that things +stolen or violently possessed cannot, by statute, be acquired +by usucapion, means, not that the thief or violent dispossessor +is incapable of usucapion -- for these are barred by another +reason, namely the fact that their possession is not in good faith; +but that even a person who has purchased the thing from them +in good faith, or received it on some other lawful ground, is +incapable of acquiring by usucapion. Consequently, in things +movable even a person who possesses in good faith can seldom +acquire ownership by usucapion, for he who sells, or on some +other ground delivers possession of a thing belonging to another, +commits a theft. 4 However, this admits of exception; for if an +heir, who believes a thing lent or let to, or deposited with, the +person whom he succeeds, to be a portion of the inheritance, +sells or gives it by way of dowry to another who receives it in +good faith, there is no doubt that the latter can acquire the +ownership of it by usucapion; for the thing is here not tainted +with the flaw attaching to stolen property, because an heir does +not commit a theft who in good faith conveys a thing away +believing it to be his own. 5 Again, the usufructuary of a female +slave, who believes her offspring to be his property, and sells +or gives it away, does not commit a theft: for theft implies +unlawful intention. 6 There are also other ways in which one +man can transfer to another property which is not his own, +without committing a theft, and thereby enable the receiver to +acquire by usucapion. 7 Usucapion of property classed among +things immovable is an easier matter; for it may easily happen +that a man may, without violence, obtain possession of land +which, owing to the absence or negligence of its owner, or to +his having died and left no successor, is presently possessed +by no one. Now this man himself does not possess in good faith, +because he knows the land on which he has seized is not his own: +but if he delivers it to another who receives it in good faith, the +latter can acquire it by long possession, because it has neither +been stolen nor violently possessed; for the idea held by some +of the ancients, that a piece of land or a place can be stolen, +has now been exploded, and imperial constitutions have been +enacted in the interests of persons possessing immovables, to +the effect that no one ought to be deprived of a thing of which +he has had long and unquestioned possession. 8 Sometimes +indeed even things which have been stolen or violently possessed +can be acquired by usucapion, as for instance after they have +again come under the power of their real owner: for by this they +are relieved from the taint which had attached to them, and so +become capable of usucapion. 9 Things belonging to our treasury +cannot be acquired by usucapion. But there is on record an +opinion of Papinian, supported by the rescripts of the Emperors +Pius, Severus, and Antoninus, that if, before the property of a +deceased person who has left no heir is reported to the excheq- +uer, some one has bought or received some part thereof, he can +acquire it by usucapion. 10 Finally, it is to be observed that things +are incapable of being acquired through usucapion by a purchaser +in good faith, or by one who possesses on some other lawful +ground, unless they are free from all flaws which vitiate the +usucapion. + +11 If there be a mistake as to the ground on which possession +is acquired, and which it is wrongly supposed will support usu- +capion, usucapion cannot take place. Thus a man's possession +may be founded on a supposed sale or gift, whereas in point of +fact there has been no sale or gift at all. + +12 Long possession which has begun to run in favour of a +deceased person continues to run on in favour of his heir or +praetorian successor, even though he knows that the land +belongs to another person. But if the deceased's possession +had not a lawful inception, it is not available to the heir or +praetorian successor, although ignorant of this. Our consti- +tution has enacted that in usucapion too a similar rule shall be +observed, and that the benefit of the possession shall continue +in favour of the successor. 13 The Emperors Severus and +Antoninus have decided by a rescript that a purchaser too +may reckon as his own the time during which his vendor has +possessed the thing. + +14 Finally, it is provided by an edict of the Emperor Marcus +that after an interval of five years a purchaser from the treasury +of property belonging to a third person may repel the owner, +if sued by him, by an exception. But a constitution issued by +Zeno of sacred memory has protected persons who acquire +things from the treasury by purchase, gift, or other title, affording +them complete security from the moment of transfer, and guaran- +teeing their success in any action relating thereto, whether they +be plaintiffs or defendants; while it allows those who claim any +action in respect of such property as owners or pledges to sue +the imperial treasury at any time within four years from the +transaction. A divine constitution which we ourselves have +lately issued has extended the operation of Zeno's enactment, +respecting conveyances by the treasury, to persons who have +acquired anything from our palace or that of the Empress. + +TITLE VII +OF GIFTS + +Another mode in which property is acquired is gift. Gifts are +of two kinds; those made in contemplation of death, and those +not so made. 1 Gifts of the first kind are those made in view of +approaching death, the intention of the giver being that in the +event of his decease the thing given should belong to the donee, +but that if he should survive or should desire to revoke the gift, +or if the donee should die first, the thing should be restored to +him. These gifts in contemplation of death now stand on ex- +actly the same footing as legacies; for as in some respects they +were more like ordinary gifts, in others more like legacies, the +jurists doubted under which of these two classes they should +be placed, some being for gift, others for legacy: and conse- +quently we have enacted by constitution that in nearly every +respect they shall be treated like legacies, and shall be govern- +ed by the rules laid down respecting them in our constitution. +In a word, a gift in contemplation of death is where the donor +would rather have the thing himself than that the donee should +have it, and that the latter should rather have it than his own heir. +An illustration may be found in Homer, where Telemachus makes +a gift to Piraeus. + +2 Gifts which are made without contemplation of death, which +we call gifts between the living, are of another kind, and have +nothing in common with legacies. If the transaction be complete, +they cannot be revoked at pleasure; and it is complete when the +donor has manifested his intention, whether in writing or not. +Our constitution has settled that such a manifestation of inten- +tion binds the donor to deliver, exactly as in the case of sale; so +that even before delivery gifts are completely effectual, and the +donor is under a legal obligation to deliver the object. Enact- +ments of earlier emperors required that such gifts, if in excess +of two hundred solidi, should be officially registered; but our +constitution has raised this maximum to five hundred solidi, +and dispensed with the necessity of registering gifts of this or +of a less amount; indeed it has even specified some gifts which +are completely valid, and require no registration, irrespective +of their amount. We have devised many other regulations in +order to facilitate and secure gifts, all of which may be gathered +from the constitutions which we have issued on this topic. It is +to be observed, however, that even where gifts have been +completely executed we have by our constitution under certain +circumstances enabled donors to revoke them, but only on +proof of ingratitude on the part of the recipient of the bounty; +the aim of this reservation being to protect persons, who +have given their property to others, from suffering at the hands +of the latter injury or loss in any of the modes detailed in our +constitution. 3 There is another specific kind of gift between the +living, with which the earlier jurists were quite unacquainted, and +which owed its later introduction to more recent emperors. It +was called gift before marriage, and was subject to the implied +condition that it should not be binding until the marriage had +taken place; its name being due to the fact that it was always +made before the union of the parties, and could never take place +after the marriage had once been celebrated. The first change in +this matter was made by our imperial father Justin, who, as it +had been allowed to increase dowries even after marriage, +issued a constitution authorizing the increase of gifts before +marriage during the continuance of the marriage tie in cases +where an increase had been made to the dowry. The name +`gift before marriage' was, however, still retained, though now +inappropriate, because the increase was made to it after the +marriage. We, however, in our desire to perfect the law, and +to make names suit the things which they are used to denote, +have by a constitution permitted such gifts to be first made, and +not merely increased, after the celebration of the marriage, and +have directed that they shall be called gifts `on account of' +(and not `before') marriage, thereby assimilating them to dowries; +for as dowries are not only increased, but actually constituted, +during marriage, so now gifts on account of marriage may be +not only made before the union of the parties, but may be first +made as well as increased during the continuance of that union. + +4 There was formerly too another civil mode of acquisition, +namely, by accrual, which operated in the following way: if a +person who owned a slave jointly with Titius gave him his liberty +himself alone by vindication or by testament, his share in the +slave was lost, and went to the other joint owner by accrual. +But as this rule was very bad as a precedent -- for both the +slave was cheated of his liberty, and the kinder masters suffer- +ed all the loss while the harsher ones reaped all the gain -- we +have deemed it necessary to suppress a usage which seemed +so odious, and have by our constitution provided a merciful +remedy, by discovering a means by which the manumitter, the +other joint owner, and the liberated slave, may all alike be bene- +fited. Freedom, in whose behalf even the ancient legislators +clearly established many rules at variance with the general +principles of law, will be actually acquired by the slave; the +manumitter will have the pleasure of seeing the benefit of his +kindness undisturbed; while the other joint owner, by receiving +a money equivalent proportionate to his interest, and on the +scale which we have fixed, will be indemnified against all loss. + +TITLE VIII +OF PERSONS WHO MAY, AND WHO MAY NOT +ALIENATE + +It sometimes happens that an owner cannot alienate, and that a +non-owner can. Thus the alienation of dowry land by the hus- +band, without the consent of the wife, is prohibited by the lex +Iulia, although, since it has been given to him as dowry, he is its +owner. We, however, have amended the lex Iulia, and thus +introduced an improvement; for that statute applied only to land +in Italy, and though it prohibited a mortgage of the land even +with the wife's consent, it forbade it to be alienated only without +her concurrence. To correct these two defects we have forbidden +mortgages as well as alienations of dowry land even when it is +situated in the provinces, so that such land can now be dealt +with in neither of these ways, even if the wife concurs, lest the +weakness of the female sex should be used as a means to the +wasting of their property. 1 Conversely, a pledgee, in pursu- +ance of his agreement, may alienate the pledge, though not its +owner; this, however, may seem to rest on the assent of the +pledgor given at the inception of the contract, in which it was +agreed that the pledgee should have a power of sale in default +of repayment. But in order that creditors may not be hindered +from pursuing their lawful rights, or debtors be deemed to be +overlightly deprived of their property, provisions have been +inserted in our constitution and a definite procedure established +for the sale of pledges, by which the interests of both creditors +and debtors have been abundantly guarded. 2 We must next +observe that no pupil of either sex can alienate anything without +his or her guardian's authority. Consequently, if a pupil attempts +to lend money without such authority, no property passes, and +he does not impose a contractual obligation; hence the money, +if it exists, can be recovered by real action. If the money which +he attempted to lend has been spent in good faith by the +would-be borrower, it can be sued for by the personal action +called condiction; if it has been fraudulently spent, the pupil can +sue by personal action for its production. On the other hand, +things can be validly conveyed to pupils of either sex without +the guardian's authority; accordingly, if a debtor wishes to pay +a pupil, he must obtain the sanction of the guardian to the trans- +action, else he will not be released. In a constitution which we +issued to the advocates of Caesarea at the instance of the +distinguished Tribonian, quaestor of our most sacred palace, +it has with the clearest reason been enacted, that the debtor +of a pupil may safely pay a guardian or curator by having first +obtained permission by the order of a judge, for which no fee +is to be payable: and if the judge makes the order, and the +debtor in pursuance thereof makes payment, he is completely +protected by this form of discharge. Supposing, however, that +the form of payment be other than that which we have fixed, +and that the pupil, though he still has the money in his pos- +session, or has been otherwise enriched by it, attempts to +recover the debt by action, he can be repelled by the plea of +fraud. If on the other hand he has squandered the money or +had it stolen from him, the plea of fraud will not avail the debtor, +who will be condemned to pay again, as a penalty for having +carelessly paid without the guardian's authority, and not in +accordance with our regulation. Pupils of either sex cannot +validly satisfy a debt without their guardian's authority, because +the money paid does not become the creditor's property; the +principle being that no pupil is capable of alienation without his +guardian's sanction. + +TITLE IX +OF PERSONS THROUGH WHOM WE ACQUIRE + +We acquire property not only by our own acts, but also by +the acts of persons in our power, of slaves in whom we have +a usufruct, and of freemen and slaves belonging to another but +whom we possess in good faith. Let us now examine these cases +in detail. 1 Formerly, whatever was received by a child in power +of either sex, with the exception of military peculium, was acquired +for the parent without any distinction; and the parent was entitled +to give away or sell to one child, or to a stranger, what had been +acquired through another, or dispose of it in any other way that +he pleased. This, however, seemed to us to be a cruel rule, and +consequently by a general constitution which we have issued we +have improved the children's position, and yet reserved to parents +all that was their due. This enacts that whatever a child gains by +and through property, of which his father allows him the control, +is acquired, according to the old practice, for the father alone; +for what unfairness is there in property derived from the father +returning to him? But of anything which the child derives from +any source other than his father, though his father will have a +usufruct therein, the ownership is to belong to the child, that he +may not have the mortification of seeing the gains which he has +made by his own toil or good fortune transferred to another. +2 We have also made a new rule relating to the right which a +father had under earlier constitutions, when he emancipated a +child, of retaining absolutely, if he pleased, a third part of such +property of the child as he himself had no ownership in, as a +kind of consideration for emancipating him. The harsh result +of this was that a son was by emancipation deprived of the +ownership of a third of his property; and thus the honour which +he got by being emancipated and made independent was +balanced by the diminution of his fortune. We have therefore +enacted that the parent, in such a case, shall no longer retain the +ownership of a third of the child's property, but, in lieu thereof, +the usufruct of one half; and thus the son will remain absolute +owner of the whole of his fortune, while the father will reap a +greater benefit than before, by being entitled to the enjoyment +of a half instead of a third. 3 Again, all rights which your slaves +acquire by tradition, stipulation, or any other title, are acquired +for you, even though the acquisition be without your knowledge, +or even against your will; for a slave, who is in the power of +another person, can have nothing of his own. Consequently, if +he is instituted heir, he must, in order to be able to accept the +inheritance, have the command of his master; and if he has that +command, and accepts the inheritance, it is acquired for his +master exactly as if the latter had himself been instituted heir; +and it is precisely the same with a legacy. And not only is +ownership acquired for you by those in your power, but also +possession; for you are deemed to possess everything of which +they have obtained detention, and thus they are to you instruments +through whom ownership may be acquired by usucapion or long +possession. 4 Respecting slaves in whom a person has only a +usufruct, the rule is, that what they acquire by means of the +property of the usufructuary, or by their own work, is acquired +for him; but what they acquire by any other means belongs to +their owner, to whom they belong themselves. Accordingly, if +such a slave is instituted heir, or made legatee or donee, the +succession, legacy, or gift is acquired, not for the usufructuary, +but for the owner. And a man who in good faith possesses a +free man or a slave belonging to another person has the same +rights as a usufructuary; what they acquire by any other mode +than the two we have mentioned belongs in the one case to the +free man, in the other to the slave's real master. After a possessor +in good faith has acquired the ownership of a slave by usucapion, +everything which the slave acquires belongs to him without +distinction; but a fructuary cannot acquire ownership of a slave in +this way, because in the first place he does not possess the slave +at all, but has merely a right of usufruct in him, and because in +the second place he is aware of the existence of another owner. +Moreover, you can acquire possession as well as ownership +through slaves in whom you have a usufruct or whom you +possess in good faith, and through free persons whom in good +faith you believe to be your slaves, though as regards all these +classes we must be understood to speak with strict reference +to the distinction drawn above, and to mean only detention +which they have obtained by means of your property or their +own work. 5 From this it appears that free men not subject to +your power, or whom you do not possess in good faith, and +other persons' slaves, of whom you are neither usufructuaries +nor just possessors, cannot under any circumstances acquire +for you; and this is the meaning of the maxim that a man cannot +be the means of acquiring anything for one who is a stranger in +relation to him. To this maxim there is but one exception -- +namely, that, as is ruled in a constitution of the Emperor Severus, +a free person, such as a general agent, can acquire possession +for you, and that not only when you know, but even when you +do not know of the fact of the acquisition: and through this +possession ownership can be immediately acquired also, if it +was the owner who delivered the thing; and if it was not, it can +be acquired ultimately by usucapion or by the plea of long +possession. + +6 So much at present concerning the modes of acquiring rights +over single things: for direct and fiduciary bequests, which are +also among such modes, will find a more suitable place in a later +portion of our treatise. We proceed therefore to the titles +whereby an aggregate of rights is acquired. If you become the +successors, civil or praetorian, of a person deceased, or adopt +an independent person by adrogation, or become assignees +of a deceased's estate in order to secure their liberty to slaves +manumitted by his will, the whole estate of those persons is +transferred to you in an aggregate mass. Let us begin with +inheritances, whose mode of devolution is twofold, according +as a person dies testate or intestate; and of these two modes +we will first treat of acquisition by will. The first point which +here calls for exposition is the mode in which wills are made. + +TITLE X +OF THE EXECUTION OF WILLS + +The term testament is derived from two words which mean a +signifying of intention. + +1 Lest the antiquities of this branch of law should be entirely +forgotten, it should be known that originally two kinds of +testaments were in use, one of which our ancestors employed +in times of peace and quiet, and which was called the will made +in the comitia calata, while the other was resorted to when +they were setting out to battle, and was called procinctum. +More recently a third kind was introduced, called the will by +bronze and balance, because it was made by mancipation, +which was a sort of fictitious sale, in the presence of five +witnesses and a balance holder, all Roman citizens above the +age of puberty, together with the person who was called the +purchaser of the family. The two first-mentioned kinds of +testament, however, went out of use even in ancient times, +and even the third, or will by bronze and balance, though it +has remained in vogue longer than they, has become partly +disused. 2 All these three kinds of will which we have +mentioned belonged to the civil law, but later still a fourth form +was introduced by the praetor's edict; for the new law of the +praetor, or ius honorarium, dispensed with mancipation, +and rested content with the seals of seven witnesses, whereas +the seals of witnesses were not required by the civil law. +3 When, however, by a gradual process the civil and +praetorian laws, partly by usage, partly by definite changes +introduced by the constitution, came to be combined into a +harmonious whole, it was enacted that a will should be valid +which was wholly executed at one time and in the presence +of seven witnesses (these two points being required, in a way, +by the old civil law), to which the witnesses signed their names +-- a new formality imposed by imperial legislation -- and affixed +their seals, as had been required by the praetor's edict. Thus +the present law of testament seems to be derived from three +distinct sources; the witnesses, and the necessity of their all +being present continuously through the execution of the will in +order that the execution may be valid, coming from the civil law: +the signing of the document by the testator and the witnesses +being due to imperial constitutions, and the exact number of +witnesses, and the sealing of the will by them, to the praetor's +edict. 4 An additional requirement imposed by our constitution, +in order to secure the genuineness of testaments and prevent +forgery, is that the name of the heir shall be written by either the +testator or the witnesses, and generally that everything shall be +done according to the tenor of that enactment. + +5 The witnesses may all seal the testament with the same seal; +for, as Pomponius remarks, what if the device on all seven +seals were the same? It is also lawful for a witness to use a +seal belonging to another person. 6 Those persons only can +be witnesses who are legally capable of witnessing a testament. +Women, persons below the age of puberty, slaves, lunatics, +persons dumb or deaf, and those who have been interdicted +from the management of their property, or whom the law +declares worthless and unfitted to perform this office, cannot +witness a will. 7 In cases where one of the witnesses to a will +was thought free at the time of its execution, but was afterwards +discovered to be a slave, the Emperor Hadrian, in his rescript +to Catonius Verus, and afterwards the Emperors Severus and +Antoninus declared that of their goodness they would uphold +such a will as validly made; for, at the time when it was sealed, +this witness was admitted by all to be free, and, as such, had +had his civil position called in question by no man. 8 A father +and a son in his power, or two brothers who are both in the +power of one father, can lawfully witness the same testament, +for there can be no harm in several persons of the same family +witnessing together the act of a man who is to them a stranger. +9 No one, however, ought to be among the witnesses who is +in the testator's power, and if a son in power makes a will of +military peculium after his discharge, neither his father nor any +one in his father's power is qualified to be a witness; for it is +not allowed to support a will by the evidence of persons in +the same family with the testator. 10 No will, again, can be +witnessed by the person instituted heir, or by any one in his +power, or by a father in whose power he is, or by a brother +under the power of the same father: for the execution of a +will is considered at the present day to be purely and entirely +a transaction between the testator and the heir. Through +mistaken ideas on this matter the whole law of testamentary +evidence fell into confusion: for the ancients, though they +rejected the evidence of the purchaser of the family and of +persons connected with him by the tie of power, allowed a +will to be witnessed by the heir and persons similarly +connected with him, though it must be admitted that they +accompanied this privilege with urgent cautions against its +abuse. We have, however, amended this rule, and enacted +in the form of law what the ancients expressed in the form +only of advice, by assimilating the heir to the old purchaser of +the family, and have rightly forbidden the heir, who now +represents that character, and all other persons connected with +him by the tie referred to, to bear witness in a matter in which, +in a sense, they would be witnesses in their own behalf. +Accordingly, we have not allowed earlier constitutions on this +subject to be inserted in our Code. 11 Legatees, and persons +who take a benefit under a will by way of trust, and those +connected with them, we have not forbidden to be witnesses, +because they are not universal successors of the deceased: +indeed, by one of our constitutions we have specially granted +this privilege to them, and, a fortiori, to persons in their power, +or in whose power they are. + +12 It is immaterial whether the will be written on a tablet, paper, +parchment, or any other substance: and a man may execute +any number of duplicates of his will, for this is sometimes +necessary, though in each of them the usual formalities must +be observed. For instance, a person setting out upon a voyage +may wish to take a statement of his last wishes along with him, +and also to leave one at home; and numberless other circum- +stances which happen to a man, and over which he has no +control, will make this desirable. 14 So far of written wills. +When, however, one wishes to make a will binding by the civil +law, but not in writing, he may summon seven witnesses, and +in their presence orally declare his wishes; this, it should be +observed, being a form of will which has been declared by +constitutions to be perfectly valid by civil law. + +TITLE XI +OF SOLDIERS' WILLS + +Soldiers, in consideration of their extreme ignorance of law, have +been exempted by imperial constitutions from the strict rules for +the execution of a testament which have been described. Neither +the legal number of witnesses, nor the observance of the other +rules which have been stated, is necessary to give force to their +wills, provided, that is to say, that they are made by them while +on actual service; this last qualification being a new though wise +one introduced by our constitution. Thus, in whatever mode +a soldier's last wishes are declared, whether in writing or orally, +this is a binding will, by force of his mere intention. At times, +however, when they are not employed on actual service, but +are living at home or elsewhere, they are not allowed to claim +this privilege: they may make a will, even though they be sons +in power, in virtue of their service, but they must observe the +ordinary rules, and are bound by the forms which we described +above as requisite in the execution of wills of civilians. + +1 Respecting the testaments of soldiers the Emperor Trajan +sent a rescript to Statilius Severus in the following terms: +`The privilege allowed to soldiers of having their wills upheld, +in whatever manner they are made, must be understood to be +limited by the necessity of first proving that a will has been made +at all; for a will can be made without writing even by civilians. +Accordingly, with reference to the inheritance which is the +subject of the action before you, if it can be shown that the +soldier who left it, did in the presence of witnesses, collected +expressly for this purpose, declare orally who he wished to be +his heir, and on what slaves he wished to confer liberty, it may +well be maintained that in this way he made an unwritten +testament, and his wishes therein declared ought to be carried +out. But if, as is so common in ordinary conversation, he said +to some one, I make you my heir, or, I leave you all my +property, such expressions cannot be held to amount to a +testament, and the interest of the very soldiers, who are +privileged in the way described, is the principal ground for +rejecting such a precedent. For if it were admitted, it would +be easy, after a soldier's death, to procure witnesses to affirm +that they had heard him say he left his property to any one they +pleased to name, and in this way it would be impossible to +discover the true intentions of the deceased.' 2 A soldier too +may make a will though dumb and deaf. 3 This privilege, +however, which we have said soldiers enjoy, is allowed them +by imperial constitutions only while they are engaged on actual +service, and in camp life. Consequently, if veterans wish to +make a will after their discharge, or if soldiers actually serving +wish to do this away from camp, they must observe the forms +prescribed for all citizens by the general law; and a testament +executed in camp without formalities, that is to say, not +according to the form prescribed by law, will remain valid +only for one year after the testator's discharge. Supposing +then that the testator died within a year, but that a condition, +subject to which the heir was instituted, was not fulfilled within +the year, would it be feigned that the testator was a soldier at +the date of his decease, and the testament consequently upheld? +and this question we answer in the affirmative. 4 If a man, +before going on actual service, makes an invalid will, and then +during a campaign opens it, and adds some new disposition, +or cancels one already made, or in some other way makes it +clear that he wishes it to be his testament, it must be pronounced +valid, as being, in fact, a new will made by the man as a soldier. +5 Finally, if a soldier is adrogated, or, being a son in power, is +emancipated, his previously executed will remains good by the +fiction of a new expression of his wishes as a soldier, and is not +deemed to be avoided by his loss of status. + +6 It is, however, to be observed that earlier statutes and imperial +constitutions allowed to children in power in certain cases a +civil peculium after the analogy of the military peculium, which +for that reason was called quasi-military, and of which some of +them were permitted to dispose by will even while under power. +By an extension of this principle our constitution has allowed all +persons who have a peculium of this special kind to dispose of +it by will, though subject to the ordinary forms of law. By a +perusal of this constitution the whole law relating to this privilege +may be ascertained. + +TITLE XII +OF PERSONS INCAPABLE OF MAKING WILLS + +Certain persons are incapable of making a lawful will. +For instance, those in the power of others are so absolutely +incapable that they cannot make a testament even with the +permission of their parents, with the exception of those whom +we have enumerated, and particularly of children in power +who are soldiers, and who are permitted by imperial constitution +to dispose by will of all they may acquire while on actual service. +This was allowed at first only to soldiers on active service, by +the authority of the Emperors Augustus and Nerva, and of the +illustrious Emperor Trajan; afterwards, it was extended by an +enactment of the Emperor Hadrian to veterans, that is, soldiers +who had received their discharge. Accordingly, if a son in power +makes a will of his military peculium, it will belong to the person +whom he institutes as heir: but if he dies intestate, leaving no +children or brothers surviving him, it will go to the parent in whose +power he is, according to the ordinary rule. From this it can be +understood that a parent has no power to deprive a son in his +power of what he has acquired on service, nor can the parent's +creditors sell or otherwise touch it; and when the parent dies it +is not shared between the soldier's son and his brothers, but +belongs to him alone, although by the civil law the peculium of +a person in power is always reckoned as part of the property +of the parent, exactly as that of a slave is deemed part of the +property of his master, except of course such property of the +son as by imperial constitutions, and especially our own, the +parent is unable to acquire in absolute ownership. Consequently, +if a son in power, not having a military or quasi-military peculium, +makes a will, it is invalid, even though he is released from power +before his decease. 1 Again, a person under the age of puberty +is incapable of making a will, because he has no judgement, +and so too is a lunatic, because he has lost his reason; and it is +immaterial that the one reaches the age of puberty, and the other +recovers his faculties, before his decease. If, however, a lunatic +makes a will during a lucid interval, the will is deemed valid, and +one is certainly valid which he made before he lost his reason: +for subsequent insanity never avoids a duly executed testament +or any other disposition validly made. 2 So too a spendthrift, +who is interdicted from the management of his own affairs, is +incapable of making a valid will, though one made by him before +being so interdicted holds good. 3 The deaf, again, and the +dumb cannot always make a will, though here we are speaking +not of persons merely hard of hearing, but of total deafness, +and similarly by a dumb person is meant one totally dumb, and +not one who merely speaks with difficulty; for it often happens +that even men of culture and learning by some cause or other +lose the faculties of speech and hearing. Hence relief has been +afforded them by our constitution, which enables them, in +certain cases and in certain modes therein specified, to make +a will and other lawful dispositions. If a man, after making his +will, becomes deaf or dumb through ill health or any other +cause, it remains valid notwithstanding. 4 A blind man cannot +make a will, except by observing the forms introduced by a +law of our imperial father Justin. 5 A will made by a prisoner +while in captivity with the enemy is invalid, even though he +subsequently returns. One made, however, while he was in +his own state is valid, if he returns, by the law of postliminium; +if he dies in captivity it is valid by the lex Cornelia. + +TITLE XIII +OF THE DISINHERISON OF CHILDREN + +The law, however, is not completely satisfied by the observance +of the rules hereinbefore explained. A testator who has a son +in his power must take care either to institute him heir, or to +specially disinherit him, for passing him over in silence avoids +the will; and this rule is so strict, that even if the son die in the +lifetime of the father no heir can take under the will, because of +its original nullity. As regards daughters and other descendants +of either sex by the male line, the ancients did not observe this +rule in all its strictness; for if these persons were neither instituted +nor disinherited, the will was not avoided, but they were entitled +to come in with the instituted heirs, and to take a certain portion +of the inheritance. And these persons the ascendant was not +obliged to specially disinherit; he could disinherit them collectively +by a general clause. 1 Special disinherison may be expressed +in these terms -- `Be Titius my son disinherited,' or in these, +`Be my son disinherited,' without inserting the name, supposing +there is no other son. Children born after the making of the +will must also be either instituted heirs or disinherited, and in +this respect are similarly privileged, that if a son or any other +family heir, male or female, born after the making of the will, +be passed over in silence, the will, though originally valid, is +invalidated by the subsequent birth of the child, and so becomes +completely void. Consequently, if the woman from whom a +child was expected to have an abortive delivery, there is nothing +to prevent the instituted heirs from taking the inheritance. It +was immaterial whether the female family heirs born after the +making of the will were disinherited specially or by a general +clause, but if the latter mode be adopted, some legacy must be +left them in order that they may not seem to have been passed +over merely through inadvertence: but male family heirs born +after the making of the will, sons and other lineal descendants, +are held not to be properly disinherited unless they are dis- +inherited specially, thus: `Be any son that shall be born to me +disinherited.' 2 With children born after the making of the will +are classed children who succeed to the place of a family heir, +and who thus, by an event analogous to subsequent birth, +become family heirs to an ancestor. For instance, if a testator +have a son, and by him a grandson or granddaughter in his +power, the son alone, being nearer in degree, has the right of +a family heir, although the grandchildren are in the testator's +power equally with him. But if the son die in the testator's +lifetime, or is in some other way released from his power, the +grandson and granddaughter succeed to his place, and thus, +by a kind of subsequent birth, acquire the rights of family heirs. +To prevent this subsequent avoidance of one's will, grand- +children by a son must be either instituted heirs or disinherited, +exactly as, to secure the original validity of a testament, a son +must be either instituted or specially disinherited; for if the son +die in the testator's lifetime, the grandson and granddaughter +take his place, and avoid the will just as if they were children +born after its execution. And this disinherison was first allowed +by the lex Iunia Vallaea, which explains the form which is to be +used, and which resembles that employed in disinheriting family +heirs born after the making of a will. 3 It is not necessary, by +the civil law, to either institute or disinherit emancipated children, +because they are not family heirs. But the praetor requires all, +females as well as males, unless instituted, to be disinherited, +males specially, females collectively; and if they are neither ap- +pointed heirs nor disinherited as described, the praetor promises +them possession of goods against the will. 4 Adopted children, +so long as they are in the power of their adoptive father, are in +precisely the same legal position as children born in lawful +wedlock; consequently they must be either instituted or dis- +inherited according to the rules stated for the disinherison of +natural children. When, however, they have been emancipated +by their adoptive father, they are no longer regarded as his +children either by the civil law or by the praetor's edict. +Conversely, in relation to their natural father, so long as they +remain in the adoptive family they are strangers, so that he need +neither institute nor disinherit them: but when emancipated by +their adoptive father, they have the same rights in the succession +to their natural father as they would have had if it had been he +by whom they were emancipated. Such was the law introduced +by our predecessors. 5 Deeming, however, that between the +sexes, to each of which nature assigns an equal share in +perpetuating the race of man, there is in this matter no real +ground of distinction, and marking that, by the ancient statute +of the Twelve Tables, all were called equally to the succession +on the death of their ancestor intestate (which precedent the +praetors also seem to have subsequently followed), we have by +our constitution introduced a simple system of the same kind, +applying uniformly to sons, daughters, and other descendants +by the male line, whether born before or after the making of the +will. This requires that all children, whether family heirs or +emancipated, shall be specially disinherited, and declares that +their pretermission shall have the effect of avoiding the will of +their parent, and depriving the instituted heirs of the inheritance, +no less than the pretermission of children who are family heirs +or who have been emancipated, whether already born, or born +after, though conceived before the making of the will. In respect +of adoptive children we have introduced a distinction, which is +explained in our constitution on adoptions. 6 If a soldier engaged +on actual service makes a testament without specially disinheriting +his children, whether born before or after the making of the will, +but simply passing over them in silence, though he knows that +he has children, it is provided by imperial constitutions that his +silent pretermission of them shall be equivalent to special dis- +inherison. 7 A mother or maternal grandfather is not bound to +institute her or his children or grandchildren; they may simply +omit them, for silence on the part of a mother, or of a maternal +grandfather or other ascendant, has the same effect as actual +disinherison by a father. For neither by the civil law, nor by +that part of the praetor's edict in which he promises children +who are passed over possession of goods against the will, is +a mother obliged to disinherit her son or daughter if she does +not institute them heirs, or a maternal grandfather to be equally +precise with reference to grandchildren by a daughter: though +such children and grandchildren, if omitted, have another +remedy, which will shortly be explained. + +TITLE XIV +OF THE INSTITUTION OF THE HEIR + +A man may institute as his heirs either free men or slaves, and +either his own slaves or those of another man. If he wished +to institute his own slave it was formerly necessary, according +to the more common opinion, that he should expressly give him +his liberty in the will: but now it is lawful, by our constitution, +to institute one's own slave without this express manumission +-- a change not due to any spirit of innovation, but to a sense +of equity, and one whose principle was approved by Atilicinus, +as it is stated by Seius in his books on Masurius Sabinus and +on Plautius. Among a testator's own slaves is to be reckoned +one of whom he is bare owner, the usufruct being vested in +some other person. There is, however, one case in which the +institution of a slave by his mistress is void, even though freedom +be given him in the will, as is provided by a constitution of the +Emperors Severus and Antoninus in these terms: `Reason +demands that no slave, accused of criminal intercourse with his +mistress, shall be capable of being manumitted, before his +sentence is pronounced, by the will of the woman who is ac- +cused of participating in his guilt: accordingly if he be instituted +heir by that mistress, the institution is void.' Among `other +persons' slaves' is reckoned one in whom the testator has a +usufruct. 1 If a slave is instituted heir by his own master, and +continues in that condition until his master's decease, he +becomes by the will both free, and necessary heir. But if the +testator himself manumits him in his lifetime, he may use his +own discretion about acceptance; for he is not a necessary heir, +because, though he is named heir to the testament, it was not +by that testament that he became free. If he has been alienated, +he must have the order of his new master to accept, and then his +master becomes heir through him, while he personally becomes +neither heir nor free, even though his freedom was expressly +given him in the testament, because by alienating him his former +master is presumed to have renounced the intention of en- +franchising him. When another person's slave is instituted heir, +if he continues in the same condition he must have the order of +his master to accept; if alienated by him in the testator's lifetime, +or after the testator's death but before acceptance, he must have +the order of the alienee to accept; finally, if manumitted in the +testator's lifetime, or after the testator's death but before +acceptance, he may accept or not at his own discretion. 2 A +slave who does not belong to the testator may be instituted heir +even after his master's decease, because slaves who belong to +an inheritance are capable of being instituted or made legatees; +for an inheritance not yet accepted represents not the future +heir but the person deceased. Similarly, the slave of a child +conceived but not yet born may be instituted heir. 3 If a slave +belonging to two or more joint owners, both or all of whom +are legally capable of being made heirs or legatees, is instituted +heir by a stranger, he acquires the inheritance for each and all +of the joint owners by whose orders he accepts it in proportion +to the respective shares in which they own him. + +4 A testator may institute either a single heir, or as many as he +pleases. 5 An inheritance is usually divided into twelve ounces, +and is denoted in the aggregate by the term as, and each +fraction of this aggregate, ranging from the ounce up to the as +or pound, has its specific name, as follows: sextans (1/6), +quadrans (1/4), triens (1/3), quincunx (5/12), semis (1/2), +septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6), +deunx (11/12), and as. It is not necessary, however, that +there should always be twelve ounces, for for the purposes of +testamentary distribution an as may consist of as many ounces +as the testator pleases; for instance, if a testator institutes only +a single heir, but declares that he is to be heir ex semisse, or to +one half of the inheritance, this half will really be the whole, for +no one can die partly testate and partly intestate, except soldiers, +in the carrying out of whose wills the intention is the only thing +regarded. Conversely, a testator may divide his inheritance into +as large a number of ounces as he pleases. 6 If more heirs than +one are instituted, it is unnecessary for the testator to assign a +specific share in the inheritance to each, unless he intends that +they shall not take in equal portions; for it is obvious that if no +shares are specified they divide the inheritance equally between +them. Supposing, however, that specific shares are assigned to +all the instituted heirs except one, who is left without any express +share at all, this last heir will be entitled to any fraction of the as +which has not been disposed of; and if there are two or more +heirs to whom no specific shares have been assigned, they will +divide this unassigned fraction equally between them. Finally, if +the whole as has been assigned in specific shares to some of +the heirs, the one or more who have no specific shares take half +of the inheritance, while the other half is divided among the rest +according to the shares assigned to them; and it is immaterial +whether the heir who has no specified share come first or last +in the institution, or occupies some intermediate place; for such +share is presumed to be given to him as is not in some other +way disposed of. 7 Let us now see how the law stands if some +part remains undisposed of, and yet each heir has his share +assigned to him -- if, for instance there are three heirs instituted, +and each is assigned a quarter of the inheritance. It is evident +that in this case the part undisposed of will go to them in +proportion to the share each has assigned to him by the will, +and it will be exactly as if they had each been originally instituted +to a third. Conversely, if each heir is given so large a fraction +that the as will be exceeded, each must suffer a proportionate +abatement; thus if four heirs are instituted, and to each is +assigned a third of the inheritance, it will be the same as if each +had been originally instituted to a quarter. 8 If more than twelve +ounces are distributed among some of the heirs only, one being +left without a specific share, he will have what is wanting to +complete the second as; and the same will be done if more +than twenty-four ounces are distributed, leaving him shareless; +but all these ideal sums are afterwards reduced to the single +as, whatever be the number of ounces they comprise. + +9 The institution of the heir may be either absolute or conditional, +but no heir can be instituted from, or up to, some definite date, +as, for instance, in the following form -- `be so and so my heir +after five years from my decease,' or `after the calends of such +a month,' or `up to and until such calends'; for a time limitation +in a will is considered a superfluity, and an heir instituted subject +to such a time limitation is treated as heir absolutely. 10 If the +institution of an heir, a legacy, a fiduciary bequest, or a +testamentary manumission is made to depend on an impossible +condition, the condition is deemed unwritten, and the disposition +absolute. 11 If an institution is made to depend on two or more +conditions, conjunctively expressed, -- as, for instance, `if this +and that shall be done' -- all the conditions must be satisfied: if +they are expressed in the alternative, or disjunctively -- as `if +this or that shall be done' -- it is enough if one of them alone is +satisfied. + +12 A testator may institute as his heir a person whom he has +never seen, for instance, nephews who have been born abroad +and are unknown to him: for want of this knowledge does not +invalidate the institution. + +TITLE XV +OF ORDINARY SUBSTITUTION + +A testator may institute his heirs, if he pleases, in two or more +degrees, as, for instance, in the following form: `If A shall not +be my heir, then let B be my heir'; and in this way he can make +as many substitutions as he likes, naming in the last place one of +his own slaves as necessary heir, in default of all others taking. +1 Several may be substituted in place of one, or one in place of +several, or to each heir may be substituted a new and distinct +person, or, finally, the instituted heirs may be substituted +reciprocally in place of one another. 2 If heirs who are instituted +in equal shares are reciprocally substituted to one another, and +the shares which they are to have in the substitution are not +specified, it is presumed (as was settled by a rescript of the +Emperor Pius) that the testator intended them to take the same +shares in the substitution as they took directly under the will. +3 If a third person is substituted to one heir who himself is +substituted to his co-heir, the Emperors Severus and Antoninus +decided by rescript that this third person is entitled to the shares +of both without distinction. 4 If a testator institutes another +man's slave, supposing him to be an independent person, and +substitutes Maevius in his place to meet the case of his not +taking the inheritance, then, if the slave accepts by the order +of his master, Maevius is entitled to a half. For, when applied +to a person whom the testator knows to be in the power of +another, the words `if he shall not be my heir' are taken to +mean `if he shall neither be heir himself nor cause another to +be heir'; but when applied to a person whom the testator +supposes to be independent, they mean `if he shall not acquire +the inheritance either for himself, or for that person to whose +power he shall subsequently become subject,' and this was +decided by Tiberius Caesar in the case of his slave Parthenius. + +TITLE XVI +OF PUPILLARY SUBSTITUTION + +To children below the age of puberty and in the power of the +testator, not only can such a substitute as we have described be +appointed, that is, one who shall take on their failing to inherit, +but also one who shall be their heir if, after inheriting, they die +within the age of puberty; and this may be done in the following +terms, `Be my son Titius my heir; and if he does not become my +heir, or, after becoming my heir, die before becoming his own +master (that is, before reaching puberty), then be Seius my heir.' +In which case, if the son fails to inherit, the substitute is the heir +of the testator; but if the son, after inheriting, dies within the age +of puberty, he is the heir of the son. For it is a rule of customary +law, that when our children are too young to make wills for +themselves, their parents may make them for them. 1 The reason +of this rule has induced us to assert in our Code a constitution, +providing that if a testator has children, grandchildren, or +great-grandchildren who are lunatics or idiots, he may, after +the analogy of pupillary substitution, substitute certain definite +persons to them, whatever their sex or the nearness of their +relationship to him, and even though they have reached the +age of puberty; provided always that on their recovering their +faculties such substitution shall at once become void, exactly +as pupillary substitution proper ceases to have any operation +after the pupil has reached puberty. 2 Thus, in pupillary +substitution effected in the form described, there are, so to +speak, two wills, the father's and the son's, just as if the son +had personally instituted an heir to himself; or rather, there is +one will dealing with two distinct matters, that is, with two +distinct inheritances. 3 If a testator be apprehensive that, after +his own death, his son, while still a pupil, may be exposed to +the danger of foul play, because another person is openly +substituted to him, he ought to make the ordinary substitution +openly, and in the earlier part of the testament, and write the +other substitution, wherein a man is named heir on the succession +and death of the pupil, separately on the lower part of the will; +and this lower part he should tie with a separate cord and +fasten with a separate seal, and direct in the earlier part of the +will that it shall not be opened in the lifetime of the son before +he attains the age of puberty. Of course a substitution to a +son under the age of puberty is none the less valid because it +is a integral part of the very will in which the testator has +instituted him his heir, though such an open substitution may +expose the pupil to the danger of foul play. 4 Not only when +we leave our inheritance to children under the age of puberty +can we make such a substitution, that if they accept the inheritance, +and then die under that age, the substitute is their heir, but we can +do it when we disinherit them, so that whatever the pupil acquires +by way of inheritance, legacy or gift from his relatives or friends, +will pass to the substitute. What has been said of substitution +to children below the age of puberty, whether instituted or +disinherited, is true also of substitution to afterborn children. +5 In no case, however, may a man make a will for his children +unless he makes one also for himself; for the will of the pupil is but +a complementary part of the father's own testament; accordingly, +if the latter is void, the former will be void also. 6 Substitution +may be made either to each child separately, or only to such one +of them as shall last die under the age of puberty. The first is the +proper plan, if the testator's intention is that none of them shall +die intestate: the second, if he wishes that, as among them, the +order of succession prescribed by the Twelve Tables shall be +strictly preserved. 7 The person substituted in the place of a +child under the age of puberty may be either named individually +-- for instance, Titius -- or generally prescribed, as by the words +`whoever shall be my heir'; in which latter case, on the child +dying under the age of puberty, those are called to the inheritance +by the substitution who have been instituted heirs and have +accepted, their shares in the substitution being proportionate to +the shares in which they succeeded the father. 8 This kind of +substitution may be made to males up to the age of fourteen, +and to females up to that of twelve years; when this age is once +passed, the substitution becomes void. 9 To a stranger, or a +child above the age of puberty whom a man has instituted heir, +he cannot appoint a substitute to succeed him if he take and die +within a certain time: he has only the power to bind him by a +trust to convey the inheritance to another either wholly or in part; +the law relating to which subject will be explained in its proper +place. + +TITLE XVII +OF THE MODES IN WHICH WILLS BECOME +VOID + +A duly executed testament remains valid until either revoked or +rescinded. 1 A will is revoked when, though the civil condition +of the testator remains unaltered, the legal force of the will itself +is destroyed, as happens when, after making his will, a man +adopts as his son either an independent person, in which case +the adoption is effected by imperial decree, or a person already +in power, when it is done through the agency of the praetor +according to our constitution. In both these cases the will is +revoked, precisely as it would be by the subsequent birth of a +family heir. 2 Again, a subsequent will duly executed is a +revocation of a prior will, and it makes no difference whether +an heir ever actually takes under it or not; the only question is +whether one might conceivably have done so. Accordingly, +whether the person instituted declines to be heir, or dies in the +lifetime of the testator, or after his death but before accepting +the inheritance, or is excluded by failure of the condition under +which he was instituted -- in all the cases the testator dies +intestate; for the earlier will is revoked by the later one, and +the later one is inoperative, as no heir takes under it. 3 If, after +duly making one will, a man executes a second one which is +equally valid, the Emperors Severus and Antoninus decided +by rescript that the first is revoked by the second, even though +the heir instituted in the second is instituted to certain things only. +The terms of this enactment we have ordered to be inserted here, +because it contains another provision. `The Emperors Severus +and Antoninus to Cocceius Campanus. A second will, although +the heir named therein be instituted to certain things only, is just +as valid as if no mention of the things had been made: but the +heir is bound to content himself with the things given him, or +with such further portion of the inheritance as will make up the +fourth part to which he is entitled under the lex Falcidia, and +(subject thereto) to transfer the inheritance to the persons +instituted in the earlier will: for the words inserted in the later +will undoubtedly contain the expression of a wish that the +earlier one shall remain valid.' This accordingly is a mode in +which a testament may be revoked. 4 There is another event +by which a will duly executed may be invalidated, namely, the +testator's undergoing a loss of status: how this may happen was +explained in the preceding Book. 5 In this case the will may be +said to be rescinded, though both those that are revoked, and +those that are not duly executed, may be said to become or be +rescinded; and similarly too those which are duly executed but +subsequently rescinded by loss of status may be said to be +revoked. However, as it is convenient that different grounds +of invalidity should have different names to distinguish them, +we say that some wills are unduly executed from the commence- +ment, while others which are duly executed are either revoked +or rescinded. 6 Wills, however, which, though duly executed, +are subsequently rescinded by the testator's undergoing loss +of status are not altogether inoperative: for if the seals of seven +witnesses are attached, the instituted heir is entitled to demand +possession in accordance with the will, if only the testator were +a citizen of Rome and independent at the time of his decease; but +if the cause of the rescission was the testator's subsequent loss +of citizenship or of freedom, or his adoption, and he dies an alien, +or slave, or subject to his adoptive father's power, the instituted +heir is barred from demanding possession in accordance with the +will. 7 The mere desire of a testator that a will which he has +executed shall no longer have any validity is not, by itself, sufficient +to avoid it; so that, even if he begins to make a later will, which +he does not complete because he either dies first, or changes his +mind, the first will remains good; it being provided in an address +of the Emperor Pertinax to the Senate that one testament which +is duly executed is not revoked by a later one which is not duly +and completely executed; for an incomplete will is undoubtedly +null. 8 In the same address the Emperor declared that he would +accept no inheritance to which he was made heir on account of +a suit between the testator and some third person, nor would he +uphold a will in which he was instituted in order to screen some +legal defect in its execution, or accept an inheritance to which he +was instituted merely by word of mouth, or take any testamentary +benefit under a document defective in point of law. And there +are numerous rescripts of the Emperors Severus and Antoninus +to the same purpose: `for though,' they say, `the laws do not +bind us, yet we live in obedience to them.' + +TITLE XVIII +OF AN UNDUTEOUS WILL + +Inasmuch as the disinherison or omission by parents of their +children has generally no good reason, those children who +complain that they have been wrongfully disinherited or passed +over have been allowed to bring an action impeaching the will +as unduteous, under the pretext that the testator was of unsound +mind at the time of its execution. This does not mean that he was +really insane, but that the will, though legally executed, bears no +mark of that affection to which a child is entitled from a parent: +for if a testator is really insane, his will is void. 1 Parents may +impeach the wills of their children as unduteous, as well as children +those of their parents. Brothers and sisters of the testator are +by imperial constitutions preferred to infamous persons who are +instituted to their exclusion, so that it is in these cases only that +they can bring this action. Persons related to the testator in a +further degree than as brothers or sisters can in no case bring +the action, or at any rate succeed in it when brought. 2 Children +fully adopted, in accordance with the distinction drawn in our +constitution, can bring this action as well as natural children, +but neither can do so unless there is no other mode in which +they can obtain the property of the deceased: for those who +can obtain the inheritance wholly or in part by any other title are +barred from attacking a will as unduteous. Afterborn children +too can employ this remedy, if they can by no other means +recover the inheritance. 3 That they may bring the action must +be understood to mean, that they may bring it only if absolutely +nothing has been left them by the testator in his will: a restriction +introduced by our constitution out of respect for a father's natural +rights. If, however, a part of the inheritance, however small, or +even a single thing is left them, the will cannot be impeached, +but the heir must, if necessary, make up what is given them to +a fourth of what they would have taken had the testator died +intestate, even though the will does not direct that this fourth +is to be made up by the assessment of an honest and reliable +man. 4 If a guardian accepts, under his own father's will, a +legacy on behalf of the pupil under his charge, the father having +left nothing to him personally, he is in no way debarred from +impeaching his father's will as unduteous on his own account. +5 On the other hand, if he impeaches the will of his pupil's +father on the pupil's behalf, because nothing has been left +to the latter, and is defeated in the action, he does not lose +a legacy given in the same will to himself personally. +6 Accordingly, that a person may be barred from the action +impeaching the will, it is requisite that he should have a fourth +of what he would have taken on intestacy, either as heir, legatee +direct or fiduciary, donee in contemplation of death, by gift from +the testator in his lifetime (though gift of this latter kind bars the +action only if made under any of the circumstances mentioned +in our constitution) or in any of the other modes stated in the +imperial legislation. 7 In what we have said of the fourth we +must be understood to mean that whether there be one person +only, or more than one, who can impeach the will as unduteous, +one-fourth of the whole inheritance may be given them, to be +divided among them all proportionately, that is to say, to each +person a fourth of what he would have had if the testator had +died intestate. + +TITLE XIX +OF THE KINDS AND DIFFERENCES +BETWEEN HEIRS + +Heirs are of three kinds, that is to say, they are either necessary, +family heirs and necessary, or external. 1 A necessary heir is +a slave of the testator, whom he institutes as heir: and he is so +named because, willing or unwilling, and without any alternative, +he becomes free and necessary heir immediately on the testator's +decease. For when a man's affairs are embarrassed, it is +common for one of his slaves to be instituted in his will, either in +the first place, or as a substitute in the second or any later place, +so that, if the creditors are not paid in full, the heir may be +insolvent rather than the testator, and his property, rather than +the testator's, may be sold by the creditors and divided among +them. To balance this disadvantage he has this advantage, that +his acquisitions after the testator's decease are for his own sole +benefit; and although the estate of the deceased is insufficient +to pay the creditors in full, the heir's subsequent acquisitions are +never on that account liable to a second sale. 2 Heirs who are +both family heirs and necessary are such as a son or a daughter, +a grandchild by a son, and further similar lineal descendants, +provided that they are in the ancestor's power at the time of his +decease. To make a grandson or granddaughter a family heir it +is, however, not sufficient for them to be in the grandfather's +power at the moment of his decease: it is further requisite that +their own father shall, in the lifetime of the grandfather, have +ceased to be the family heir himself, whether by death or by +any other mode of release from power: for by this event the +grandson and granddaughter succeed to the place of their +father. They are called family heirs, because they are heirs of +the house, and even in the lifetime of the parent are to a certain +extent deemed owners of the inheritance: wherefore in intestacy +the first right of succession belongs to the children. They are +called necessary heirs because they have no alternative, but, +willing or unwilling, both where there is a will and where there +is not, they become heirs. The praetor, however, permits them, +if they wish, to abstain from the inheritance, and leave the parent +to become insolvent rather than themselves. + +3 Those who are not subject to the testator's power are called +external heirs. Thus children of ours who are not in our power, +if instituted heirs by us, are deemed external heirs; and children +instituted by their mother belong to this class, because women +never have children in their power. Slaves instituted heirs by +their masters, and manumitted subsequently to the execution of +the will, belong to the same class. 4 It is necessary that external +heirs should have testamentary capacity, whether it is an in- +dependent person, or some one in his power, who is instituted: +and this capacity is required at two times; at the same time of +the making of the will, when, without it, the institution would be +void; and at the same time of the testator's decease, when, +without it, the institution would have no effect. Moreover, the +instituted heir ought to have this capacity also at the time when +he accepts the inheritance, whether he is instituted absolutely or +subject to a condition; and indeed it is especially at this time that +his capacity to take ought to be looked to. If, however, the in- +stituted heir undergoes a loss of status in the interval between the +making of the will and the testator's decease, or the satisfaction +of the condition subject to which he was instituted, he is not +thereby prejudiced: for, as we said, there are only three points +of time which have to be regarded. Testamentary capacity thus +does not mean merely capacity to make a will; it also means +capacity to take for oneself, or for the father or master in whose +power one is, under the will of another person: and this latter +kind of testamentary capacity is quite independent of the +capacity to make a will oneself. Accordingly, even lunatics, +deaf persons, after-born children, infants, children in power, +and other persons' slaves are said to have testamentary capacity; +for though they cannot make a valid will, they can acquire for +themselves or for another under a will made by someone else. +5 External heirs have the privilege of deliberating whether they +will accept or disclaim an inheritance. But if a person who is +entitled to disclaim interferes with the inheritance, or if one who +has the privilege of deliberation accepts it, he no longer has the +power of relinquishing it, unless he is a minor under the age +of twenty-five years, for minors obtain relief from the praetor +when they incautiously accept a disadvantageous inheritance, +as well as when they take any other injudicious step. 6 It is, how- +ever, to be observed that the Emperor Hadrian once relieved +even a person who had attained his majority, when, after his +accepting the inheritance, a great debt, unknown at the time of +acceptance, had come to light. This was but the bestowal of an +especial favour on a single individual; the Emperor Gordian +subsequently extended the privilege, but only to soldiers, to whom +it was granted as a class. We, however, in our benevolence +have placed this benefit within the reach of all our subjects, and +drafted a constitution as just as it is splendid, under which, if +heirs will but observe its terms, they can accept an inheritance +without being liable to creditors and legatees beyond the value +of the property. Thus so far as their liability is concerned there +is no need for them to deliberate on acceptance, unless they fail +to observe the procedure of our constitution, and prefer +deliberation, by which they will remain liable to all the risks of +acceptance under the older law. 7 An external heir, whether his +right accrue to him under a will or under the civil law of intestate +succession, can take the inheritance either by acting as heir, or +by the mere intention to accept. By acting as heir is mean, for +instance, using things belonging to the inheritance as one's own, +or selling them, or cultivating or giving leases of the deceased's +estates, provided only one expresses in any way whatsoever, +by deed or word, one's intention to accept the inheritance, so +long as one knows that the person with whose property one is +thus dealing has died testate or intestate, and that one is that +person's heir. To act as heir, in fact, is to act as owner, and the +ancients often used the term `heir' as equivalent to the term +`owner.' And just as the mere intention to accept makes an +external heir heir, so too the mere determination not to accept +bars him from the inheritance. Nothing prevents a person who +is born deaf or dumb, or who becomes so after birth, from +acting as heir and thus acquiring the inheritance, provided only +he knows what he is doing. + +TITLE XX +OF LEGACIES + +Let us now examine legacies: -- a kind of title which seems +foreign to the matter at hand, for we are expounding titles +whereby aggregates of rights are acquired; but as we have +treated in full of wills and heirs appointed by will, it was natural +in close connexion therewith to consider this mode of acquisition. + +1 Now a legacy is a kind of gift left by a person deceased; 2 and +formerly they were of four kinds, namely, legacy by vindication, +by condemnation, by permission, and by preception, to each +of which a definite form of words was appropriated by which it +was known, and which served to distinguish it from legacies of +the other kinds. Solemn forms of words of this sort, however, +have been altogether abolished by imperial constitutions; and we, +desiring to give greater effect to the wishes of deceased persons, +and to interpret their expressions with reference rather to those +wishes than to their strict literal meaning, have issued a constitution, +composed after great reflection, enacting that in future there shall +be but one kind of legacy, and that, whatever be the terms in +which the bequest is couched, the legatee may sue for it no less +by real or hypothecary than by personal action. How carefully +and wisely this constitution is worded may be ascertained by a +perusal of its contents. 3 We have determined, however, to go +even beyond this enactment; for, observing that the ancients +subjected legacies to strict rules, while the rules which they +applied to fiduciary bequests, as springing more directly from +the deceased person's wishes, were more liberal, we have +deemed it necessary to assimilate the former completely to the +latter, so that any future features in which legacies are inferior to +fiduciary bequests may be supplied to them from the latter, and +the latter themselves may in future possess any superiority which +has hitherto been enjoyed by legacies only. In order, however, +to avoid perplexing students in their first essays in the law by +discussing these two forms of bequests together, we have +thought it worth while to treat them separately, dealing first with +legacies, and then with fiduciary bequests, so that the reader, +having first learnt their respective natures in a separate treatment, +may, when his legal education is more advanced, be able easily +to comprehend their treatment in combination. + +4 A legacy may be given not only of things belonging to the +testator or heir, but also of things belonging to a third person, +the heir being bound by the will to buy and deliver them to the +legatee, or to give him their value if the owner is unwilling to +sell them. If the thing given be one of those of which private +ownership is impossible, such, for instance, as the Campus +Martius, a basilica, a church, or a thing devoted to public use, +not even its value can be claimed, for the legacy is void. In +saying that a thing belonging to a third person may be given as +a legacy we must be understood to mean that this may be done +if the deceased knew that it belonged to a third person, and not +if he was ignorant of this: for perhaps he would never have +given the legacy if he had known that the thing belonged neither +to him nor to the heir, and there is a rescript of the Emperor Pius +to this effect. It is also the better opinion that the plaintiff, that +is the legatee, must prove that the deceased knew he was giving +as a legacy a thing which was not his own, rather than that the +heir must prove the contradictory: for the general rule of law +is that the burden of proof lies on the plaintiff. 5 If the thing +which a testator bequests is in pledge to a creditor, the heir is +obliged to redeem it, subject to the same distinction as has +been drawn with reference to a legacy of a thing not belonging +to the testator; that is to say, the heir is bound to redeem only +if the deceased knew the thing to be in pledge: and the +Emperors Severus and Antoninus have decided this by rescript. +If, however, the deceased expresses his intention that the +legatee should redeem the thing himself, the heir is under no +obligation to do it for him. 6 If a legacy is given of a thing +belonging to another person, and the legatee becomes its +owner during the testator's lifetime by purchase, he can obtain +its value from the heir by action on the will: but if he gives no +consideration for it, that is to say, gets it by way of gift or by +some similar title, he cannot sue; for it is settled law that where +a man has already got a thing, giving no consideration in return, +he cannot get its value by a second title of the same kind. +Accordingly, if a man is entitled to claim a thing under each of +two distinct wills, it is material whether he gets the thing, or +merely its value, under the earlier one: for if he gets the thing +itself, he cannot sue under the second will, because he already +has the thing without giving any consideration, whereas he has a +good right of action if he has merely got its value. 7 A thing +which does not yet exist, but will exist, may be validly bequeathed: +-- for instance, the produce of such and such land, or the child +of such and such female slave. 8 If the same thing is given as +a legacy to two persons, whether jointly or severally, and both +claim it, each is entitled to only a half; if one of them does not +claim it, because either he does not care for it, or has died in +the testator's lifetime, or for some other reason, the whole goes +to his co-legatee. A joint legacy is given in such words as the +following: `I give and bequeath my slave Stichus to Titius and +Seius': a several legacy thus, `I give and bequeath my slave +Stichus to Titius: I give and bequeath Stichus to Seius': and +even if the testator says `the same slave Stichus' the legacy is +still a several one. 9 If land be bequeathed which belongs to +some one other than the testator, and the intended legatee, after +purchasing the bare ownership therein, obtains the usufruct +without consideration, and then sues under the will, Julian says +that this action for the land is well grounded, because in a real +action for land a usufruct is regarded merely as a servitude; but +it is part of the duty of the judge to deduct the value of the +usufruct from the sum which he directs to be paid as the value +of the land. 10 A legacy by which something already belonging +to the legatee is given him is void, for what is his own already +cannot become more his own than it is: and even though he +alienates it before the testator's death, neither it nor its value +can be claimed. 11 If a testator bequeaths something belonging +to him, but which he thought belonged to another person, the +legacy is good, for its validity depends not on what he thought, +but on the real facts of the case: and it is clearly good if he +thought it already belonged to the legatee, because his expressed +wish can thus be carried out. 12 If, after making his will, a +testator alienates property which he has therein given away as +a legacy, Celsus is of opinion that the legatee may still claim it +unless the testator's intention was thereby to revoke the bequest, +and there is a rescript of the Emperors Severus and Antoninus +to this effect, as well as another which decides that if, after +making his will, a testator pledges land which he had therein +given as a legacy, the part which has not been alienated can in +any case be claimed, and the alienated part as well if the alienator's +intention was not to revoke the legacy. 13 If a man bequeaths +to his debtor a discharge from his debt, the legacy is good, and +the testator's heir cannot sue either the debtor himself, or his +heir, or any one who occupies the position of heir to him, and the +debtor can even compel the testator's heir to formally release him. +Moreover, a testator can also forbid his heir to claim payment +of a debt before a certain time has elapsed. 14 Contrariwise, +if a debtor leaves his creditor a legacy of what he owes him, the +legacy is void, if it includes no more than the debt, for the creditor +is thus in no way benefited; but if the debtor unconditionally +bequeaths a sum of money which the creditor cannot claim until +a definite date has arrived or a condition has been satisfied, the +legacy is good, because it confers on the creditor a right to +earlier payment. And, even if the day arrives, or the condition +is satisfied, during the testator's lifetime, Papinian decides, and +rightly, that the legacy is nevertheless a good one, because it was +good when first written; for the opinion that a legacy becomes +void, because something happens to deprive it of all material +effect, is now rejected. 15 If a man leaves his wife a legacy of +her dowry, the gift is good, because the legacy is worth more +than a mere right of action for the dowry. If, however, he has +never received the dowry which he bequeaths, the Emperors +Severus and Antoninus have decided by rescript that the legacy +is void, provided the general term `dowry' is used, but good, +if in giving it to the wife a definite sum or thing is specified, or +described generally by reference to the dowry deed. 16 If a +thing bequeathed perishes through no act of the heir, the loss +falls on the legatee: thus if a slave belonging to another person, +who is given in this way, is manumitted through no act of the +heir, the latter is not bound. If, however, the slave belongs to +the heir, who manumits him, Julian says that he is bound, and it +is immaterial whether he knew or not that the slave had been +bequeathed away from him. 17 If a testator gives a legacy of +female slaves along with their offspring, the legatee can claim +the latter even if the mothers are dead, and so again if a legacy +is given of ordinary slaves along with their vicarii or sub- +ordinates, the latter can be claimed even if the former are dead. +But if the legacy be of a slave along with his peculium, and the +slave is dead, or has been manumitted or alienated, the legacy +of the peculium is extinguished; and similarly, if the legacy be +of land with everything upon it, or with all its instruments of +tillage, by the alienation of the land the legacy of the instruments +of tillage is extinguished. 18 If a flock be given as a legacy, +which is subsequently reduced to a single sheep, this single sur- +vivor can be claimed; and Julian says that in a legacy of a flock +are comprised sheep which are added to it after the making of +the will, a flock being but one aggregate composed of distinct +members, just as a house is but one aggregate composed of +distinct stones built together. So if the legacy consists of a house, +we hold that pillars or marbles added to it after the making of +the will pass under the bequest. 20 If a slave's peculium be +given as a legacy, the legatee undoubtedly profits by what is +added to it, and is a loser by what is taken from it, during the +testator's lifetime. Whatever the slave acquires in the interval +between the testator's death and the acceptance of the inherit- +ance belongs, according to Julian, to the legatee, if that legatee +be the slave himself who is manumitted by the will, because a +legacy of this kind vests from the acceptance of the inheritance: +but if the legatee be a stranger, he is not entitled to such +acquisitions, unless they are made by means of the peculium +itself. A slave manumitted by a will is not entitled to his +peculium unless it is expressly bequeathed to him, though, if +the master manumits him in his lifetime, it is enough if it be not +expressly taken from him, and to this effect the Emperors +Severus and Antoninus have decided by rescript: as also, that +a legacy of his peculium to a slave does not carry with it the +right to sue for money which he has expended on his master's +account, and that a legacy of a peculium may be inferred from +directions in a will that a slave is to be free so soon as he has +made a statement of his accounts and made up any balance, +which may be against him, from his peculium. 21 Incorporeal +as well as corporeal things can be bequeathed: thus a man can +leave a legacy even of a debt which is owed to him, and the +heir can be compelled to transfer to the legatee his rights of +action, unless the testator has exacted payment in his lifetime, +in which case the legacy is extinguished. Again, such a legacy +as the following is good: `be my heir bound to repair so and +so's house, or to pay so and so's debts.' 22 If a legacy be a +general one, as of a slave or some other thing not specifically +determined, the legatee is entitled to choose what slave, or what +thing, he will have, unless the testator has expressed a contrary +intention. 23 A legacy of selection, that is, when a testator +directs the legatee to select one from among his slaves, or any +other class of things, was held to be given subject to an implied +condition that the legatee should make the choice in person; +so that if he died before doing so the legacy did not pass to his +heir. By our constitution, however, we have made an improve- +ment in this matter, and allowed the legatee's heir to exercise +the right of selection, although the legatee has not done so +personally in his lifetime; which enactment, through our careful +attention to the subject, contains the further provision, that if +there are either several co-legatees to whom a right of selection +has been bequeathed, and who cannot agree in their choice, +or several co-heirs of a single legatee, who differ through some +wishing to choose this thing and others that, the question shall +be decided by fortune -- the legacy not being extinguished, +which many of the jurists in an ungenerous spirit wished to +make the rule --; that is to say, that lots shall be drawn, and +he on whom the lot falls shall have a priority of choice over +the rest. + +24 Three persons only can be legatees who have testamentary +capacity, that is, who are legally capable of taking under a will. +25 Formerly it was not allowed to leave either legacies or fiduci- +ary bequests to uncertain persons, and even soldiers, as the +Emperor Hadrian decided by rescript, were unable to benefit +uncertain persons in this way. An uncertain person was held to +be one of whom the testator had no certain conception, as the +legatee in the following form: `Whoever bestows his daughter +in marriage on my son, do thou, my heir, give him such or such +land.' So too a legacy left to the first consuls designate after the +writing of the will was held to be given to an uncertain person, +and many others that might be instanced: and so it was held +that freedom could not be bequeathed to an uncertain person, +because it was settled that slaves ought to be enfranchised by +name, and an uncertain person could not be appointed guardian. +But a legacy given with a certain demonstration, that is, to an +uncertain member of a certain class, was valid, for instance, the +following: `Whoever of all my kindred now alive shall first marry +my daughter, do thou, my heir, give him such and such thing.' +It was, however, provided by imperial constitutions that legacies +or fiduciary bequests left to uncertain persons and paid by mis- +take could not be recovered back. 26 An after-born stranger +again could not take a legacy; an after-born stranger being one +who on his birth will not be a family heir to the testator; thus a +grandson by an emancipated son was held to be an after-born +stranger to his grandfather. 27 These parts of the law, however, +have not been left without due alteration, a constitution having +been inserted in our Code by which we have in these respects +amended the rules relating to legacies and fiduciary bequests no +less than to inheritances, as will be made clear by a perusal of +the enactment, which, however, still maintains the old rule that +an uncertain person cannot be appointed guardian: for when a +testator is appointing a guardian for his issue, he ought to be +quite clear as to the person and character of the party he selects. +28 An after-born stranger could and still can be instituted heir, +unless conceived of a woman who cannot by law be a man's +wife. 29 If a testator makes a mistake in any of the names of +the legatee, the legacy is nevertheless valid provided there is no +doubt as to the person he intended, and the same rule is very +properly observed as to heirs as well as legatees; for names are +used only to distinguish persons, and if the person can be as- +certained in other ways a mistake in the name is immaterial. +30 Closely akin to this rule is another, namely, that an erroneous +description of the thing bequeathed does not invalidate the +bequest; for instance, if a testator says, `I give and bequeath +Stichus my born slave,' the legacy is good, if it quite clear who +is meant by Stichus, even though it turn out that he was not born +the testator's slave, but was purchased by him. Similarly, if he +describe Stichus as `the slave I bought from Seius,' whereas +in fact he bought him from some one else, the legacy is good, +if it is clear what slave he intended to give. 31 Still less is a +legacy invalidated from a wrong motive being assigned by the +testator for giving it: if, for instance, he says, `I give and be- +queath Stichus to Titius, because he looked after my affairs +while I was away,' or `because I was acquitted on a capital +charge through his undertaking my defence,' the legacy is still +good, although in point of fact Titius never did look after the +testator's affairs, or never did, through his advocacy, procure +his acquittal. But the law is different if the testator expresses +his motive in the guise of a condition, as: `I give and bequeath +such and such land to Titius, if he has looked after my affairs.' +32 It is questioned whether a legacy to a slave of the heir is +valid. It is clear that such a legacy is void if given uncondition- +ally, even though the slave ceases to belong to the heir during +the testator's lifetime: for a legacy which would be void if the +testator died immediately after making his will ought not to +become valid by the simple fact of the testator's living longer. +Such a legacy, however, is good if given subject to a condition, +the question then being, whether at the vesting of the legacy the +slave has ceased to belong to the heir. 33 On the other hand, +there is no doubt that even an absolute legacy to the master +of a slave who is instituted heir is good: for, even supposing +that the testator dies immediately after making the will, the +right to the legacy does not necessarily belong to the person +who is heir; for the inheritance and the legacy are separable, +and a different person from the legatee may become heir +through the slave; as happens if, before the slave accepts the +inheritance at his master's bidding, he is conveyed to another +person, or is manumitted and thus becomes heir himself; in +both of which cases the legacy is valid. But if he remains in the +same condition, and accepts at his master's bidding, the legacy +is extinguished. 34 A legacy given before an heir was appointed +was formerly void, because a will derives its operation from +the appointment of an heir, and accordingly such appointment +is deemed the beginning and foundation of the whole testament, +and for the same reason a slave could not be enfranchised +before an heir was appointed. Yet even the old lawyers them- +selves disapproved of sacrificing the real intentions of the +testator by too strictly following the order of the writing: and +we accordingly have deemed these rules unreasonable, and +amended them by our constitution, which permits a legacy, +and much more freedom, which is always more favoured, to +be given before the appointment of an heir, or in the middle of +the appointments, if there are several. 35 Again, a legacy to +take effect after the death of the heir or legatee, as in the form: +`After my heir's death I give and bequeath,' was formerly +void, as also was one to take effect on the day preceding the +death of the heir or legatee. This too, however, we have +corrected, by making such legacies as valid as they would be +were they fiduciary bequests, lest in this point the latter should +be found to have some superiority over the former. +36 Formerly too the gift, revocation, and transference of +legacies by way of penalty was void. A penal legacy is one +given in order to coerce the heir into doing or not doing some- +thing; for instance, the following: `If my heir gives his daughter +in marriage to Titius,' or, conversely, `if he does not give her +in marriage to Titius, let him pay ten aurei to Seius'; or again, +`if my heir parts with my slave Stichus,' or, conversely, `if he +does not part with him, let him pay ten aurei to Titius.' And so +strictly was this rule observed, that it is declared in a large +number of imperial constitutions that even the Emperor will +accept no legacy by which a penalty is imposed on some other +person: and such legacies were void even when given by a +soldier's will, in which as a rule so much trouble was taken +to carry out exactly the testator's wishes. Moreover, Sabinus +was of opinion that a penal appointment of a co-heir was void, +as exemplified in the following: `Be Titius my heir: if Titius +gives his daughter in marriage to Seius, be Seius my heir also'; +the ground of the invalidity being that it made no difference in +what way Titius was constrained, whether by a legacy being +left away from him, or by some one being appointed co-heir. +Of these refinements, however, we disapproved, and have +consequently enacted generally that bequests, even though given, +revoked, or transferred in order to penalize the heir, shall be +treated exactly like other legacies, except where the event on +which the penal legacy is contingent is either impossible, illegal, +or immoral: for such testamentary dispositions as these the +opinion of my times will not permit. + +TITLE XXI +OF THE ADEMPTION AND TRANSFERENCE +OF LEGACIES + +Legacies may be revoked either in a later clause of the will or +by codicils, and the revocation may be made either in words +contrary to those of the gift, as the gift thus `I give and bequeath,' +the revocation thus `I do not give and bequeath,' or in words +not contrary, that is to say, in any words whatsoever. 1 A +legacy may also be transferred from one person to another, as +thus: `I give and bequeath to Seius the slave Stichus whom I +bequeathed to Titius,' and this may be done either by a later +clause of the will or by codicils; the result being that the legacy +is taken away from Titius and simultaneously given to Seius. + +TITLE XXII +OF THE LEX FALCIDIA + +We have finally to consider the lex Falcidia, the most recent +enactment limiting the amount which can be given in legacies. +The statute of the Twelve Tables had conferred complete +liberty of bequest on testators, by which they were enabled to +give away their whole patrimony in legacies, that statute having +enacted: `let a man's testamentary disposition of his property +be regarded as valid.' This complete liberty of bequest, how- +ever, it was thought proper to limit in the interest of testators +themselves, for intestacy was becoming common through the +refusal of instituted heirs to accept inheritances from which +they received little or no advantage at all. The lex Furia and +the lex Voconia were enactments designed to remedy the evil, +but as both were found inadequate to the purpose, the lex +Falcidia was finally passed, providing that no testator should +be allowed to dispose of more than three-quarters of his +property in legacies, or in other words, that whether there +was a single heir instituted, or two or more, he or they should +always be entitled to at least a quarter of the inheritance. + +1 If two heirs, say Titius and Seius, are instituted, and Titius's +share of the inheritance is either wholly exhausted in legacies +specifically charged thereon, or burdened beyond the limit fixed +by the statute, while no legacies at all are charged on Seius, or +at any rate legacies which exhaust it only to the extent of one +half or less, the question arose whether, as Seius has at least a +quarter of the whole inheritance, Titius was or was not entitled +to retain anything out of the legacies which had been charged +upon him: and it was settled that he could keep an entire fourth +of his share of the inheritance; for the calculation of the lex +Falcidia is to be applied separately to the share of each of +several heirs in the inheritance. 2 The amount of the property +upon which the calculation is brought to bear is its amount at +the moment of the testator's decease. Thus, to illustrate by +an example, a testator who is worth a hundred aurei at his +decease gives the whole hundred away in legacies: here, if +before the heir accepts, the inheritance is so much augmented +through slaves who belong to it, or by births of children from +such of them as are females, or by the young of cattle that, +even after paying away a hundred aurei in legacies, the heir +will still have a clear fourth of the inheritance, the legatee's +position is in no way improved, but a quarter of the sum given +in legacies may still be deducted for himself by the heir. Con- +versely, if only seventy-five aurei are given in legacies, and +before acceptance the inheritance is so much diminished in +value, say by fire, shipwreck, or death of slaves, that no more +or even less than seventy-five aurei are left, the legatees can +claim payment of their legacies in full. In this latter case, +however, the heir is not prejudiced, for he is quite free to +refused the inheritance: consequently, the legatees must come +to terms with him, and content themselves with a portion of +their legacies, lest they lose all through no one's taking under +the will. 3 When the calculation of the lex Falcidia is made, +the testator's debts and funeral expenses are first deducted, +and the value of slaves whom he has manumitted in the will +or directed to be manumitted is not reckoned as part of the +inheritance; the residue is then divided so as to leave the +heirs a clear fourth, the other three quarters being distributed +among the legatees in proportion to the amount of the legacies +given them respectively in the will. Thus, if we suppose four +hundred aurei to have been given in legacies, and the value +of the inheritance, out of which they are to be paid, to be +exactly that sum, each legatee must have his legacy abated +by one-fourth; if three hundred and fifty have been given +in legacies, each legacy will be diminished by one-eighth; +if five hundred, first a fifth, then a fourth, must be deducted: +for when the amount given in legacies actually exceeds the +sum of the inheritance, there must be struck off first the excess, +and then the share which the heir is entitled to retain. + +TITLE XXIII +OF TRUST INHERITANCES + +We now proceed to fiduciary bequests or trusts; and let us +begin with trust inheritances. + +1 Legacies or inheritances given by trust had originally no +binding legal force, because no one could be compelled against +his will to do what he was merely asked to do. As there were +certain classes of persons to whom testators were unable to +leave inheritances or legacies, when they wished to effect these +objects they used to trust to the good faith of some one who +had this kind of testamentary capacity, and whom they asked +to give the inheritance, or the legacy, to the intended beneficiary; +hence the name `trusts,' because they were not enforced by + legal obligation, but only by the transferor's sense of honesty. +Subsequently the Emperor Augustus, either out of regard for +various favourites of his own, or because the request was said +to have been made in the name of the Emperor's safety, or +moved thereto by individual and glaring cases of perfidy, +commanded the consuls in certain cases to enforce the duty +by their authority. And this being deemed equitable, and being +approved by the people, there was gradually developed a +new and permanent jurisdiction, and trusts became so popular +that soon a special praetor was appointed to hear suits +relating to them, who was called the trust praetor. + +2 The first requisite is an heir directly instituted, in trust to +transfer the inheritance to another, for the will is void without +an instituted heir in the first instance. Accordingly, when a +testator has written: `Lucius Titius, be thou my heir,' he may +add: `I request you, Lucius Titius, as soon as you can accept +my inheritance, to convey and transfer it to Gaius Seius'; or he +can request him to transfer a part. So a trust may be either +absolute or conditional, and to be performed either immediately +or on a specified future day. + +3 After the transfer of the inheritance the transferor continues +heir, the transferee being sometimes regarded as quasi-heir, +sometimes as quasi-legatee. 4 But during the reign of Nero, +in the consulate of Trebellius Maximus and Annaeus Seneca, +a senatusconsult was passed providing that, when an inheritance +is transferred in pursuance of a trust, all the actions which the +civil law allows to be brought by or against the heir shall be +maintainable by and against the transferee: and after this +enactment the praetor used to give indirect or fictitious actions +to and against the transferee as quasi-heir. 5 However, as the +instituted heirs, when (as so often was the case) they were +requested to transfer the whole or nearly the whole of an +inheritance, declined to accept for what was no benefit, or at +most a very slight benefit, to themselves, and this caused a +failure of the trusts, afterwards, in the time of the Emperor +Vespasian, and during the consulate of Pegasus and Pusio, +the senate decreed that an heir who was requested to transfer +the inheritance should have the same right to retain a fourth +thereof as the lex Falcidia gives to an heir charged with the +payment of legacies, and gave a similar right of retaining the +fourth of any specific thing left in trust. After the passing of +this senatusconsult the heir, wherever it came into operation, +was sole administrator, and the transferee of the residue was +in the position of a partiary legatee, that is, of a legatee of a +certain specified portion of the estate under the kind of +bequest called participation, so that the stipulations which +had been usual between an heir and a partiary legatee were +now entered into by the heir and transferee, in order to secure +a rateable division of the gains and losses arising out of the +inheritance. 6 Accordingly, after this, if no more than three- +fourths of the inheritance was in trust to be transferred, then the +SC. Trebellianum governed the transfer, and both were liable +to be sued for the debts of the inheritance in rateable portions, +the heir by civil law, the transferee, as quasi-heir, by that +enactment. But if more than three-fourths, or even the whole +was left in trust to be transferred, the SC. Pegasianum came +into operation, and when once the heir had accepted, of +course voluntarily, he was the sole administrator whether he +retained one-fourth or declined to retain it: but if he did, he +entered into stipulations with the transferee similar to those +usual between the heir and a partiary legatee, while if he did +not, but transferred the whole inheritance, he covenanted +with him as quasi-purchaser. If an instituted heir refuse to +accept an inheritance from a suspicion that the liabilities ex- +ceed the assets, it is provided by the SC. Pegasianum that, +on the petition of the person to whom he is requested to +transfer, he shall be ordered by the praetor to accept and +transfer it, whereupon the transferee shall be as capable of +suing and being sued as the transferee under the SC. +Trebellianum. In this case no stipulations are necessary, +because by a concurrent operation of the two senatusconsults +both the transferor is protected, and all actions relating to the +inheritance pass to and against the transferee. 7 As, however, +the covenants which had become necessary through the SC. +Pegasianum were disliked even by the older lawyers, and +are in certain cases considered injurious by the eminent jurist +Papinian, and it being our desire that our statute book should +be clear and simple rather than complicated, we have, after +placing these two senatusconsults side by side and examining +their points of resemblance and difference, resolved to repeal +the SC. Pegasianum, as the later enactment, and to give ex- +clusive authority to the SC. Trebellianum, under which in +future all trust inheritances are to be transferred, whether the +testator has freely given his heir a fourth of the property, or +more or less, or even nothing at all: provided always, that +when the heir has either nothing or less than a fourth, it shall +be lawful for him, under our authority expressed in this statute, +to retain a fourth, or to recover it by action if he has already +paid it over, the heir and the transferee being capable both +of suing and being sued in proportion to their shares in the +inheritance, after the analogy of the SC. Trebellianum; and +provided also, that if the heir voluntarily transfers the whole +inheritance, the transferee shall be able to sue and be sued +on all actions relating to the inheritance whatsoever. More- +over, we have transferred to the SC. Trebellianum the leading +provision of the SC. Pegasianum, whereby it was enacted +that when an instituted heir refused to accept an inheritance +offered to him, he could be compelled to accept and transfer +the whole inheritance if the intended transferee so desired, +and that all actions should pass to and against the latter: so +that it is under the SC. Trebellianum alone that the heir, if +unwilling to accept, is now obliged to do so, if the intended +transferee desire the inheritance, though to him personally no +loss or profit can accrue under the transaction. 8 It makes no +difference whether it is a sole or part heir who is under a trust +to another, or whether what he is requested to transfer is the +whole or only a part of that to which he is heir; for we direct +that the same rules shall be applied in the case of a part being +transferred as we have said are observed in the transference +of a whole inheritance. 9 If the request addressed to the +heir is to transfer the inheritance after deducting or reserving +some specific thing which is equal in value to a fourth part +thereof, such as land or anything else, the conveyance will be +made under the SC. Trebellianum, exactly as if he had been +asked after retaining a fourth part of the inheritance to transfer +the residue. There is, however, some difference between the two +cases; for in the first, where the inheritance is transferred after +deducting or reserving some specific thing, the senatusconsult +has the effect of making the transferee the only person who +can sue or be sued in respect of the inheritance, and the part +retained by the heir is free from all encumbrances, exactly as +if he had received it under a legacy; whereas in the second, +where the heir, after retaining a fourth part of the inheritance, +transfers the rest as requested, the actions are divided, the +transferee being able to sue and be sued in respect of three- +fourths of the inheritance, and the heir in respect of the rest. +Moreover, if the heir is requested to transfer the inheritance +after deducting or reserving only a single specific thing, which, +however, in value is equivalent to the greater part of the inherit- +ance, the transferee is still the only person who can sue and +be sued, so that he ought well to weigh whether it is worth +his while to take it: and the case is precisely the same, +whether what the heir is directed to deduct or reserve before +transferring is two or more specific things, or a definite sum +which in fact is equivalent to a fourth or even the greater part +of the inheritance. What we have said of a sole heir is equally +true of one who is instituted only to a part. + +10 Moreover, a man about to die intestate can charge the +person to whom he knows his property will go by either the +civil or praetorian law to transfer to some one else either his +whole inheritance, or a part of it, or some specific thing, such +as land, a slave, or money: but legacies have no validity unless +given by will. 11 The transferee may himself be charged by +the deceased with a trust to transfer to some other person +either the whole or a part of what he receives, or even some- +thing different. 12 As has been already observed, trusts in +their origin depended solely on the good faith of the heir, from +which early history they derived both their name and their +character: and it was for that reason that the Emperor +Augustus made them legally binding obligations. And we, in +our desire to surpass that prince, have recently made a con- +stitution, suggested by a matter brought before us by the +eminent Tribonian, quaestor of our sacred palace, by which +it is enacted, that if a testator charges his heir with a trust to +transfer the whole inheritance or some specific thing, and +the trust cannot be proved by writing or by the evidence of +five witnesses -- five being, as is known, the number required +by law for the proof of oral trusts -- through there having +been fewer witnesses than five, or even none at all, and if the +heir, whether it be his own son or some one else whom the +testator has chosen to trust, and by whom he desired the +transfer to be made, perfidiously refuses to execute the trust, +and in fact denies that he was ever charged with it, the alleged +beneficiary, having previously sworn to his own good faith, +may put the heir upon his oath: whereupon the heir may be +compelled to swear that no trust was ever charged upon him, +or, in default, to transfer the inheritance or the specific thing, +as the case may be, in order that the last wishes of the testator, +the fulfilment of which he has left to the honour of his heir, may +not be defeated. We have also prescribed the same procedure +where the person charged with a trust is a legatee or already +himself a transferee under a prior trust. Finally, if the person +charged admits the trust, but tries to shelter himself behind +legal technicalities, he may most certainly be compelled to +perform his obligation. + +TITLE XXIV +OF TRUST BEQUESTS OF SINGLE THINGS + +Single things can be left in trust as well as inheritances; land, +for instance, slaves, clothing, gold, silver, and coined money; +and the trust may be imposed either on an heir or on a legatee, +although a legatee cannot be charged with a legacy. + +1 Not only the testator's property, but that of an heir, or +legatee, or person already benefited by a trust, or any one else +may be given by a trust. Thus a legatee, or a person in whose +favour the testator has already created a trust, may be asked +to transfer either a thing left to him, or any other thing belonging +to himself or a stranger, provided always that he is not charged +with a trust to transfer more than he takes by the will, for in +respect of such excess the trust would be void. When a +person is charged by a trust to transfer a thing belonging to +some one else, he must either purchase and deliver it, or pay +its value. 2 Liberty can be left to a slave by a trust charging +an heir, legatee, or other person already benefited by a trust +of the testator's, with his manumission, and it makes no differ- +ence whether the slave is the property of the testator, of the +heir, of the legatee or of a stranger: for a stranger's slave must +be purchased and manumitted; and on his master's refusal to +sell (which refusal is allowable only if the master has taken +nothing under the will) the trust to enfranchise the slave is not +extinguished, as though its execution had become impossible, +but its execution is merely postponed; because it may become +possible to free him at some future time, whenever an oppor- +tunity of purchasing him presents itself. A trust of manumission +makes the slave the freedman, not of the testator, though he +may have been his owner, but of the manumitter, whereas a +direct bequest of liberty makes a slave the freedman of the +testator, whence too he is called `orcinus.' But a direct be- +quest of liberty can be made only to a slave who belongs to +the testator both at the time of making his will and at that of +his decease; and by a direct bequest of liberty is to be +understood the case where the testator desires him to be- +come free in virtue, as it were, of his own testament alone, +and so does not ask some one else to manumit him. 3 The +words most commonly used to create a trust are I beg, I +request, I wish, I commission, I trust to your good faith; and +they are just as binding when used separately as when united. + +TITLE XXV +OF CODICILS + +It is certain that codicils were not in use before the time of +Augustus, for Lucius Lentulus, who was also the originator +of trusts, was the first to introduce them, in the following +manner. Being on the point of death in Africa, he executed +codicils, confirmed by his will, by which he begged Augustus +to do something for him as a trust; and on the Emperor's ful- +filling his wishes, other persons followed the precedent and +discharged trusts created in this manner, and the daughter of +Lentulus paid legacies which could not have been legally +claimed from her. It is said that Augustus called a council +of certain jurists, among them Trebatius, who at that time +enjoyed the highest reputation, and asked them whether the +new usage could be sanctioned, or did not rather run counter +to the received principles of law, and that Trebatius recom- +mended their admission, remarking `how convenient and even +necessary the practice was to citizens,' owing to the length +of the journeys which were taken in those early days, and +upon which a man might often be able to make codicils when +he could not make a will. And subsequently, after codicils +had been made by Labeo, nobody doubted their complete +validity. + +1 Not only can codicils be made after a will, but a man dying +intestate can create trusts by codicils, though Papinian says +that codicils executed before a will are invalid unless confirmed +by a later express declaration that they shall be binding. But a +rescript of the Emperors Severus and Antoninus decides that +the performance of a trust imposed by codicils written before +a will may in any case be demanded, if it appears that the +testator had not abandoned the intention expressed in them. +2 An inheritance can neither be given nor taken away by +codicils, nor, accordingly, can a child be disinherited in this +way: for, if it were otherwise, the law of wills and of codicils +would be confounded. By this it is meant that an inheritance +cannot directly be given or taken away by codicils; for in- +directly, by means of a trust, one can very well be given in +this manner. Nor again can a condition be imposed on an +instituted heir, or a direct substitution be effected, by codicils. +3 A man can make any number of codicils, and no solemnities +are required for their execution. + + +* BOOK III * + +TITLE I +OF THE DEVOLUTION OF INHERITANCES +ON INTESTACY + +A man is said to die intestate who either has made no will +at all, or has made one which is invalid, or if one which has +been duly executed has been subsequently revoked, or +rescinded, or finally, if no one accepts as heir under the +testament. + +1 The inheritances of intestate persons go first, by the statute +of the Twelve Tables, to family heirs; 2 and family heirs, as we +said above, are those who were in the power of the deceased +at the time of his death, such as a son or daughter, a grandchild +by a son, or a great-grandchild by such grandchild if a male, +and this whether the relationship be natural or adoptive. +Among them must also be reckoned children who, though not +born in lawful wedlock, have been inscribed members of the +curia according to the tenor of the imperial constitutions +relating to them, and thus acquire the rights of family heirs, +or who come within the terms of our constitutions by which +we have enacted that, if any one shall cohabit with a woman +whom he might have lawfully married, but for whom he did +not at first feel marital affection, and shall after begetting +children by her begin to feel such affection and formally marry +her, and then have by her sons or daughters, not only shall +those be lawful children and in their father's power who were +born after the settlement of the dowry, but also those born +before, to whom in reality the later born ones owed their +legitimacy; and we have provided that this rule shall hold even +though no children are born after the execution of the dowry +deed, or if, having been born, they are dead. It is to be ob- +served, however, that a grandchild or great-grandchild is not +a family heir, unless the person in the preceding degree has +ceased to be in the power of the parent, either through having +died, or by some other means, such as emancipation; for if at +the time of a man's decease a son is in his power, a grandson +by that son cannot be a family heir, and the case is exactly the +same with more remote descendants. Children too who are +born after the ancestor's death, and who would have been +in his power had they been born during his lifetime, are family +heirs. 3 Family heirs succeed even though ignorant of their +title, and they can take upon an intestacy even though insane, +because whenever the law vests property in a person, even +when he is ignorant of his title, it equally vests it in him if insane. +Thus, immediately on the parent's death, the ownership is as +it were continued without any break, so that pupils who are +family heirs do not require their guardian's sanction in order +to succeed, for inheritances go to such heirs even though +ignorant of their title; and similarly an insane family heir does +not require his curator's consent in order to succeed, but +takes by operation of law. 4 Sometimes, however, a family +heir succeeds in this way to his parent, even though not in the +latter's power at the time of his decease, as where a person +returns from captivity after his father's death, this being the +effect of the law of postliminium. 5 And sometimes con- +versely a man is not a family heir although in the power of the +deceased at the time of his death, as where the latter after his +death is adjudged to have been guilty of treason, and his +memory is thereby branded with infamy: such a person is un- +able to have a family heir, for his property is confiscated to +the treasury, though one who would otherwise have succeeded +him may be said to have in law been a family heir, and ceased +to be such. 6 Where there is a son or daughter, and a grand- +child by another son, these are called together to the inheritance, +nor does the nearer in degree exclude the more remote, for it +seems just that grandchildren should represent their father and +take his place in the succession. Similarly a grandchild by a son, +and a great-grandchild by a grandson are called to the inherit- +ance together. And as it was thought just that grandchildren +and great-grandchildren should represent their father, it seemed +consistent that the inheritance should be divided by the number +of stems, and not by the number of individuals, so that a son +should take one-half, and grandchildren by another son the +other: or, if two sons left children, that a single grandchild, or +two grandchildren by one son, should take one-half, and three +or four grandchildren by the other son the other. 7 In ascertain- +ing whether, in any particular case, so and so is a family heir, +one ought to regard only that moment of time at which it first +was certain that the deceased died intestate, including here- +under the case of no one's accepting under the will. For +instance, if a son be disinherited and a stranger instituted heir, +and the son die after the decease of his father, but before it is +certain that the heir instituted in the will either will not or cannot +take the inheritance, a grandson will take as family heir to his +grandfather, because he is the only descendant in existence +when first it is certain that the ancestor died intestate; and of +this there can be no doubt. 8 A grandson born after, though +conceived before, his grandfather's death, whose father dies +in the interval between the grandfather's decease and desertion +of the latter's will through failure of the instituted heir to take, +is family heir to his grandfather; though it is obvious that if +(other circumstances remaining the same) he is conceived as +well as born after the grandfather's decease, he is no family +heir, because he was never connected with his grandfather by +any tie of relationship; exactly as a person adopted by an +emancipated son is not among the children of, and therefore +cannot be family heir to, the latter's father. And such persons, +not being children in relation to the inheritance, cannot apply +either for possession of the goods of the deceased as next +of kin. So much for family heirs. + +9 As to emancipated children, they have, by the civil law, no +rights to succeed to an intestate; for having ceased to be in the +power of their parent, they are not family heirs, nor are they +called by any other title in the statute of the Twelve Tables. +The praetor, however, following natural equity, gives them +possession of the goods of the deceased merely as children, +exactly as if they had been in his power at the time of his +death, and this whether they stand alone or whether there are +family heirs as well. Consequently, if a man die leaving two +children, one emancipated, and the other in his power at the +time of his decease, the latter is sole heir by the civil law, as +being the only family heir; but through the former's being ad- +mitted to part of the inheritance by the indulgence of the +praetor, the family heir becomes heir to part of the inheritance +only. 10 Emancipated children, however, who have given +themselves in adoption are not thus admitted, under the title of +children, to share the property of their natural father, if at the +time of his decease they are in their adoptive family; though it +is otherwise if they are emancipated during his lifetime by their +adoptive father, for then they are admitted as if they had been +emancipated by him and had never been in an adoptive family, +while, conversely, as regards their adoptive father, they are +henceforth regarded as strangers. If, however, they are +emancipated by the adoptive after the death of the natural +father, as regards the former they are strangers all the same, +and yet do not acquire the rank of children as regards suc- +cession to the property of the latter; the reason of this rule +being the injustice of putting it within the power of an adoptive +father to determine to whom the property of the natural father +shall belong, whether to his children or to his agnates. +11 Adoptive are thus not so well off as natural children in +respect of rights of succession: for by the indulgence of the +praetor the latter retain their rank as children even after +emancipation, although they lose it by the civil law; while the +former, if emancipated, are not assisted even by the praetor. +And there is nothing wrong in their being thus differently +treated, because civil changes can affect rights annexed to a +civil title, but not rights annexed to a natural title, and natural +descendants, though on emancipation they cease to be +family heirs, cannot cease to be children or grandchildren; +whereas on the other hand adoptive children are regarded as +strangers after emancipation, because they lose the title and +name of son or daughter, which they have acquired by a civil +change, namely adoption, by another civil change, namely +emancipation. 12 And the rule is the same in the possession +of goods against the will which the praetor promises to +children who are passed over in their parent's testament, that +is to say, are neither instituted nor duly disinherited; for the +praetor calls to this possession children who were in their +parent's power at the time of his decease, or emancipated, +but excludes those who at that time were in an adoptive +family: still less does he here admit adoptive children eman- +cipated by their adoptive father, for by emancipation they +cease entirely to be children of his. 13 We should observe, +however, that though children who are in an adoptive family, +or who are emancipated by their adoptive after the decease +of their natural father, are not admitted on the death of the +latter intestate by that part of the edict by which children are +called to the possession of goods, they are called by another +part, namely that which admits the cognates of the deceased, +who, however, come in only if there are no family heirs, +emancipated children, or agnates to take before them: for the +praetor prefers children, whether family heirs or emancipated, +to all other claimants, ranking in the second degree statutory +successors, and in the third cognates, or next of kin. 14 All +these rules, however, which to our predecessors were sufficient, +have received some emendation by the constitution which we +have enacted relative to persons who have been given in +adoption to others by their natural fathers; for we found cases +in which sons by entering an adoptive family forfeited their +right of succeeding their natural parents, and then, the tie of +adoption being easily broken by emancipation, lost all title to +succeed their adoptive parents as well. We have corrected +this, in our usual manner, by a constitution which enacts that, +when a natural father gives his son in adoption to another +person, the son's rights shall remain the same in every partic- +ular as if he had continued in the power of his natural father, +and the adoption had never taken place, except only that he +shall be able to succeed his adoptive father should he die +intestate. If, however, the latter makes a will, the son cannot +obtain any part of the inheritance either by the civil or by the +praetorian law, that is to say, either by impeaching the will +as unduteous or by applying for possession against the will; +for, being related by no tie of blood, the adoptive father is +not bound either to institute him heir or to disinherit him, +even though he has been adopted, in accordance with the +SC. Afinianum, from among three brothers; for, even under +these circumstances, he is not entitled to a fourth of what +he might have taken on intestacy, nor has he any action for +its recovery. We have, however, by our constitution ex- +cepted persons adopted by natural ascendants, for between +them and their adopters there is the natural tie of blood as +well as the civil tie of adoption, and therefore in this case we +have preserved the older law, as also in that of an independent +person giving himself in adrogation: all of which enactment +can be gathered in its special details from the tenor of the +aforesaid constitution. + +15 By the ancient law too, which favoured the descent +through males, those grandchildren only were called as family +heirs, and preferred to agnates, who were related to the grand- +father in this way: grandchildren by daughters, and great- +grandchildren by granddaughters, whom it regarded only as +cognates, being called after the agnates in succession to their +maternal grandfather or great-grandfather, or their grand- +mother or great-grandmother, whether paternal or maternal. +But the Emperors would not allow so unnatural a wrong to +endure without sufficient correction, and accordingly, as people +are, and are called, grandchildren and great-grandchildren +of a person whether they trace their descent through males or +through females, they placed them altogether in the same rank +and order of succession. In order, however, to bestow some +privilege on those who had in their favour the provisions of +the ancient law as well as natural right, they determined that +grandchildren, great-grandchildren, and others who traced +their descent through a female should have their portion of +the inheritance diminished by receiving less by one-third than +their mother or grandmother would have taken, or than their +father or grandfather, paternal or maternal, when the deceased, +whose inheritance was in question, was a woman; and they +excluded the agnates, if such descendants claimed the inherit- +ance, even though they stood alone. Thus, exactly as the +statute of the Twelve Tables calls the grandchildren and +great-grandchildren to represent their deceased father in the +succession to their grandfather, so the imperial legislation +substitutes them for their deceased mother or grandmother, +subject to the aforesaid deduction of a third part of the +share which she personally would have taken. 16 As, how- +ever, there was still some question as to the relative rights of +such grandchildren and of the agnates, who on the authority +of a certain constitution claimed a fourth part of the de- +ceased's estate, we have repealed the said enactment, and not +permitted its insertion in our Code from that of Theodosius. +By the constitution which we have published, and by which +we have altogether deprived it of validity, we have provided +that in case of the survival of grandchildren by a daughter, +great-grandchildren by a granddaughter, or more remote +descendants related through a female, the agnates shall have +no claim to any part of the estate of the deceased, that +collaterals may no longer be preferred to lineal descendants; +which constitution we hereby re-enact with all its force from +the date originally determined: provided always, as we direct, +that the inheritance shall be divided between sons and grand- +children by a daughter, or between all the grandchildren, +and other more remote descendants, according to stocks, +and not by counting heads, on the principle observed by the +ancient law in dividing an inheritance between sons and +grandchildren by a son, the issue obtaining without any +diminution the portion which would have belonged to their +mother or father, grandmother or grandfather: so that if, for +instance, there be one or two children by one stock, and three +or four by another, the one or two, and the three or four, shall +together take respectively one moiety of the inheritance. + +TITLE II +OF THE STATUTORY SUCCESSION +OF AGNATES + +If there is no family heir, nor any of those persons called to the +succession along with family heirs by the praetor or the imperial +legislation, to take the inheritance in any way, it devolves, by +the statute of the Twelve Tables, on the nearest agnate. + +1 Agnates, as we have observed in the first book, are those +cognates who trace their relationship through males, or, in +other words, who are cognate through their respective fathers. +Thus, brothers by the same father are agnates, whether by the +same mother or not, and are called ‘consanguinei’; an uncle +is agnate to his brother's son, and vice versa; and the children +of brothers by the same father, who are called ‘consobrini, +are one another's agnates, so that it is easy to arrive at various +degrees of agnation. Children who are born after their father's +decease acquire the rights of kinship exactly as if they had +been born before that event. But the law does not give the +inheritance to all the agnates, but only to those who were +nearest in degree at the moment when it was first certain that +the deceased died intestate. 2 The relation of agnation can +also be established by adoption, for instance, between a man's +own sons and those whom he has adopted, all of whom are +properly called consanguinei in relation to one another. So, +too, if your brother, or your paternal uncle, or even a more +remote agnate, adopts any one, that person undoubtedly +becomes one of your agnates. 3 Male agnates have reciprocal +rights of succession, however remote the degree of relationship: +but the rule as regards females, on the other hand, was that +they could not succeed as agnates to any one more remotely +related to them than a brother, while they themselves could +be succeeded by their male agnates, however distant the +connexion: thus you, if a male, could take the inheritance of +a daughter either of your brother or of your paternal uncle, +or of your paternal aunt, but she could not take yours; the +reason of this distinction being the seeming expediency of +successions devolving as much as possible on males. But as +it was most unjust that such females should be as completely +excluded as if they were strangers, the praetor admits them to +the possession of goods promised in that part of the edict in +which mere natural kinship is recognised as a title to success- +ion, under which they take provided there is no agnate, or +other cognate of a nearer degree of relationship. Now these +distinctions were in no way due to the statute of the Twelve +Tables, which, with the simplicity proper to all legislation, +conferred reciprocal rights of succession on all agnates alike, +whether males or females, and excluded no degree by +reason merely of its remoteness, after the analogy of family +heirs; but it was introduced by the jurists who came between +the Twelve Tables and the imperial legislation, and who with +their legal subtleties and refinements excluded females other +than sisters altogether from agnatic succession. And no +other scheme of succession was in those times heard of, +until the praetors, by gradually mitigating to the best of their +ability the harshness of the civil law, or by filling up voids in +the old system, provided through their edicts a new one. +Mere cognation was thus in its various degrees recognised +as a title to succession, and the praetors gave relief to such +females through the possession of goods, which they promised +to them in that part of the edict by which cognates are called +to the succession. We, however, have followed the Twelve +Tables in this department of law, and adhered to their principles: +and, while we commend the praetors for their sense of equity, +we cannot hold that their remedy was adequate; for when the +degree of natural relationship was the same, and when the +civil title of agnation was conferred by the older law on males +and females alike, why should males be allowed to succeed +all their agnates, and women (except sisters) be debarred +from succeeding any? Accordingly, we have restored the +old rules in their integrity, and made the law on this subject +an exact copy of the Twelve Tables, by enacting, in our con- +stitution, that all `statutory' successors, that is, persons tracing +their descent from the deceased through males, shall be called +alike to the succession as agnates on an intestacy, whether +they be males or females, according to their proximity of +degree; and that no females shall be excluded on the pretence +that none but sisters have the right of succeeding by the title +of kinship. 4 By an addition to the same enactment we +have deemed it right to transfer one, though only one, degree +of cognates into the ranks of those who succeed by a +statutory title, in order that not only the children of a brother +may be called, as we have just explained, to the succession +of their paternal uncle, but that the children of a sister too, +even though only of the half blood on either side (but not her +more remote descendants), may share with the former the +inheritance of their uncle; so that, on the decease of a man +who is paternal uncle to his brother's children, and maternal +uncle to those of his sister, the nephews and nieces on either +side will now succeed him alike, provided, of course, that +the brother and sister do not survive, exactly as if they all +traced their relationship through males, and thus all had a +statutory title. But if the deceased leaves brothers and +sisters who accept the inheritance, the remoter degrees are +altogether excluded, the division in this case being made +individually, that is to say, by counting heads, not stocks. +5 If there are several degrees of agnates, the statute of the +Twelve Tables clearly calls only the nearest, so that if, for +instance, the deceased leaves a brother, and a nephew by +another brother deceased, or a paternal uncle, the brother +is preferred. And although that statute, in speaking of the +nearest agnate, uses the singular number, there is no doubt +that if there are several of the same degree they are all +admitted: for though properly one can speak of `the nearest +degree' only when there are several, yet it is certain that +even though all the agnates are in the same degree the +inheritance belongs to them. 6 If a man dies without having +made a will at all, the agnate who takes is the one who was +nearest at the time of the death of the deceased. But when +a man dies, having made a will, the agnate who takes (if one +is to take at all) is the one who is nearest when first it +becomes certain that no one will accept the inheritance under +the testament; for until that moment the deceased cannot +properly be said to have died intestate at all, and this +period of uncertainty is sometimes a long one, so that it not +unfrequently happens that through the death, during it, of +a nearer agnate, another becomes nearest who was not +so at the death of the testator. 7 In agnatic succession the +established rule was that the right of accepting the inheritance +could not pass from a nearer to a more remote degree; in +other words, that if the nearest agnate, who, as we have +described, is called to the inheritance, either refuses it or +dies before acceptance, the agnates of the next grade have +no claim to admittance under the Twelve Tables. This +hard rule again the praetors did not leave entirely without +correction, though their remedy, which consisted in the +admission of such persons, since they were excluded from +the rights of agnation, in the rank of cognates, was inadequate. +But we, in our desire to have the law as complete as possible, +have enacted in the constitution which in our clemency we +have issued respecting the rights of patrons, that in agnatic +succession the transference of the rights to accept from a +nearer to a remoter degree shall not be refused: for it was +most absurd that agnates should be denied a privilege which +the praetor had conferred on cognates, especially as the +burden of guardianship fell on the second degree of agnates +if there was a failure of the first, the principle which we have +now sanctioned being admitted so far as it imposed burdens, +but rejected so far as it conferred a boon. + +8 To statutory succession the ascendant too is none the less +called who emancipates a child, grandchild, or remoter +descendant under a fiduciary agreement, which by our +constitution is now implied in every emancipation. Among +the ancients the rule was different, for the parent acquired +no rights of succession unless he had entered into a special +agreement of trust to that effect prior to the emancipation. + +TITLE III +OF THE SENATUSCONSULTUM +TERTULLIANUM + +So strict were the rules of the statute of the Twelve Tables +in preferring the issue of males, and excluding those who +traced their relationship through females, that they did not +confer reciprocal rights of inheritance even on a mother and +her children, though the praetors called them to succeed one +another as next of kin by promising them the possession of +goods in the class of cognates. + +1 But this narrowness of the law was afterwards amended, +the Emperor Claudius being the first to confer on a mother, +as a consolation for the loss of her children, a statutory right +to their inheritance, 2 and afterwards, very full provisions +were made by the SC. Tertullianum, enacted in the time of +the Emperor Hadrian, and relating to the melancholy +succession of children by their mothers, though not by their +grandmothers, whereby it was provided that a freeborn +woman who had three or a freedwoman who had four +children should be entitled to succeed to the goods of her +children who died intestate, even though herself under +paternal power; though, in this latter case, she cannot accept +the inheritance except by the direction of the person in whose +power she is. 3 Children of the deceased who are or who +rank as family heirs, whether in the first or any other degree, +are preferred to the mother, and even where the deceased is +a woman her children by imperial constitutions have a prior +claim to the mother, that is, to their own grandmother. Again, +the father of the deceased is preferred to the mother, but not +so the paternal grandfather or great-grandfather, at least +when it is between them only that the question arises who is +entitled. A brother by the same father excluded the mother +from the succession to both sons and daughters, but a sister +by the same father came in equally with the mother; and +where there were both a brother and a sister by the same +father, as well as a mother who was entitled by number of +children, the brother excluded the mother, and divided the +inheritance in equal moieties with the sister. 4 By a consti- +tution, however, which we have placed in the Code made +illustrious by our name, we have deemed it right to afford +relief to the mother, in consideration of natural justice, of +the pains of childbirth, and of the danger and even death +which mothers often incur in this manner; for which reason +we have judged it a sin that they should be prejudiced by a +circumstance which is entirely fortuitous. For if a freeborn +woman had not borne three, or a freedwoman four children, +she was undeservedly defrauded of the succession to her own +offspring; and yet what fault had she committed in bearing few +rather than many children? Accordingly, we have conferred +on mothers a full statutory right of succession to their children, +and even if they have had no other child than the one in +question deceased. 5 The earlier constitutions, in their +review of statutory rights of succession, were in some points +favourable, in others unfavourable, to mothers; thus in some +cases they did not call them to the whole inheritance of their +children, but deducted a third in favour of certain other +persons with a statutory title, while in others they did exactly +the opposite. We, however, have determined to follow a +straightforward and simple path, and, preferring the mother +to all other persons with a statutory title, to give her the +entire succession of her sons, without deduction in favour +of any other persons except a brother or sister, whether by +the same father as the deceased, or possessing rights of +cognation only; so that, as we have preferred the mother to +all with a statutory title, so we call to the inheritance, along +with her, all brothers and sisters of the deceased, whether +statutorily entitled or not: provided that, if the only surviving +relatives of the deceased are sisters, agnatic or cognatic, +and a mother, the latter shall have one-half, and all the sisters +together the other half of the inheritance; if a mother and a +brother or brothers, with or without sisters agnatic or cognatic, +the inheritance shall be divided among mother, brothers, and +sisters in equal portions. 6 But, while we are legislating for +mothers, we ought also to bestow some thought on their off- +spring; and accordingly mothers should observe that if they +do not apply within a year for guardians for their children, +either originally or in lieu of those who have been removed +or excused, they will forfeit their title to succeed such +children if they die under the age of puberty. 7 A mother +can succeed her child under the SC. Tertullianum even +though the child be illegitimate. + +TITLE IV +OF THE SENATUSCONSULTUM +ORFITIANUM + +Conversely, children were admitted to succeed their mother +on her death intestate by the SC. Orfitianum, passed in the +time of the Emperor Marcus, when Orfitus and Rufus were +consuls: by which a statutory right of succession was con- +ferred on both sons and daughters, even though in the +power of another, in preference to their deceased mother's +brothers and sisters and other agnates. + +1 As, however, grandsons were not called by this senatus- +consult with a statutory title to the succession of their +grandmothers, 2 this was subsequently amended by imperial +constitutions, providing that grandchildren should be called +to inherit exactly like children. It is to be observed that +rights of succession such as those conferred by the SC. +Tertullianum and Orfitianum are not extinguished by loss of +status, owing to the rule that rights of succession conferred +by later statutes are not destroyed in this way, but only such +as are conferred by the statute of the Twelve Tables; 3 and +finally that under the latter of these two enactments even +illegitimate children are admitted to their mother's inheritance. + +4 If there are several heirs with a statutory title, some of +whom do not accept, or are prevented from doing so by +death or some other cause, their shares accrue in equal +proportions to those who do accept the inheritance, or to +their heirs, supposing they die before the failure of the others +to take. + +TITLE V +OF THE SUCCESSION OF COGNATES + +After family heirs, and persons who by the praetor and the +imperial legislation are ranked as such, and after persons +statutorily entitled, among whom are the agnates and those +whom the aforesaid senatusconsults and our constitution have +raised to the rank of agnates, the praetor calls the nearest +cognates. + +1 In this class or order natural or blood relationship alone is +considered: for agnates who have undergone loss of status +and their children, though not regarded as having a statutory +title under the statute of the Twelve Tables, are called by +the praetor in the third order of the succession. The sole ex- +ceptions to this rule are emancipated brothers and sisters, +though not in equal shares with them, but with some de- +duction, the amount of which can easily be ascertained +from the terms of the constitution itself. But to other agnates +of remoter degrees, even though they have not undergone +loss of status, and still more to cognates, they are preferred +by the aforesaid statute. 2 Again, collateral relations +connected with the deceased only by the female line are +called to the succession by the praetor in the third order +as cognates; 3 and children who are in an adoptive family +are admitted in this order to the inheritance of their natural +parent. 4 It is clear that illegitimate children can have no +agnates, for in law they have no father, and it is through the +father that agnatic relationship is traced, while cognatic +relationship is traced through the mother as well. On the +same principle they cannot be held to be consanguinei +of one another, for consanguinei are in a way agnatically +related: consequently, they are connected with one another +only as cognates, and in the same way too with the cognates +of their mother. Accordingly, they can succeed to the +possession of goods under that part of the Edict in which +cognates are called by the title of mere kinship. 5 In this +place too we should observe that a person who claims as +an agnate can be admitted to the inheritance, even though +ten degrees removed from the deceased, both by the +statute of the Twelve Tables, and by the Edict in which +the praetor promises the possession of goods to heirs +statutorily entitled: but on the ground of mere natural kin- +ship the praetor promises possession of goods to those +cognates only who are within the sixth degree; the only +persons in the seventh degree whom he admits as cognates +being the children of a second cousin of the deceased. + +TITLE VI +OF THE DEGREES OF COGNATION + +It is here necessary to explain the way in which the degrees +of natural relationship are reckoned. In the first place it is to +be observed that they can be counted either upwards, or +downwards, or crosswise, that is to say, collaterally. Re- +lations in the ascending line are parents, in the descending +line, children, and similarly uncles and aunts paternal and +maternal. In the ascending and descending lines a man's +nearest cognate may be related to him in the first degree; +in the collateral line he cannot be nearer to him than the +second. + +1 Relations in the first degree, reckoning upwards, are the +father and mother; reckoning downwards, the son and +daughter. 2 Those in the second degree, upwards, are +grandfather and grandmother; downwards, grandson and +granddaughter; 3 and in the collateral line brother and sister. +In the third degree, upwards, are the great-grandfather and +great-grandmother; downwards, the great-grandson and +great-granddaughter; in the collateral line, the sons and +daughters of a brother or sister, and also uncles and aunts +paternal and maternal. The father's brother is called ‘patruus,’ +in Greek ‘patros’, the mother's brother avunculus, in Greek +specifically ‘matros,’ though the term theios is used +indifferently to indicate either. The father's sister is called +‘amita,’ the mother's ‘matertera’; both go in Greek by the +name ‘theia,’ or, with some, ‘tithis.’ 4 In the fourth degree, +upwards, are the great-great-grandfather and the great- +great-grandmother; downwards, the great-great-grandson +and the great-great-granddaughter; in the collateral line, +the paternal great-uncle and great-aunt, that is to say, the +grandfather's brother and sister: the same relations on the +grandmother's side, that is to say, her brother and sister: +and first cousins male and female, that is, children of brothers +and sisters in relation to one another. The children of two +sisters, in relation to one another, are properly called +‘consobrini,’ a corruption of ‘consororini’; those of two +brothers, in relation to one another, ‘fratres patrueles,’ if +males, ‘sorores patrueles,’ if females; and those of a brother +and a sister, in relation to one another, ‘amitini’; thus the sons +of your father's sister call you ‘consobrinus,’ and you call +them ‘amitini.’ 5 In the fifth degree, upwards, are the grand- +father's great-grandfather and great-grandmother, downwards, +the great-grandchildren of one's own grandchildren, and in the +collateral line the grandchildren of a brother or sister, a great- +grandfather's or great-grandmother's brother or sister, the +children of one's first cousins, that is, of a ‘frater-’ or ‘soror +patruelis,’ of a ‘consobrinus’ or ‘consobrina,’ of an ‘amitinus’ +or ‘amitina,’ and first cousins once removed, that is to say, +the children of a great-uncle or great-aunt paternal or maternal. +6 In the sixth degree, upwards, are the great-grandfather's +great-grandfather and great-grandmother; downwards, the +great-grandchildren of a great-grandchild, and in the collateral +line the great-grandchildren of a brother or sister, as also the +brother and sister of a great-great-grandfather or great-great- +grandmother, and second cousins, that is to say, the children +of ‘fratres-’ or ‘sorores patrueles,’ of ‘consobrini,’ or of +‘amitini.’ + +7 This will be enough to show how the degrees of relation- +ship are reckoned; for from what has been said it is easy to +understand how we ought to calculate the remoter degrees +also, each generation always adding one degree: so that it +is far easier to say in what degree any one is related to some +one else than to indicate his relationship by the proper specific +term. 8 The degrees of agnation are also reckoned in the same +manner; 9 but as truth is fixed in the mind of man much better +by the eye than by the ear, we have deemed it necessary, +after giving an account of the degree of relationship, to have +a table of them inserted in the present book, that so the youth +may be able by both ears and eyes to gain a most perfect +knowledge of them. [Note: -- the pedagogical table is omit- +ted in the present edition.] + +10 It is certain that the part of the Edict in which the possession +of goods is promised to the next of kin has nothing to do with +the relationships of slaves with one another, nor is there any +old statute by which such relationships were recognised. +However, in the constitution which we have issued with +regard to the rights of patrons -- a subject which up to our +times had been most obscure, and full of difficulties and con- +fusion -- we have been prompted by humanity to grant that if +a slave shall beget children by either a free woman or another +slave, or conversely if a slave woman shall bear children of +either sex by either a freeman or a slave, and both the parents +and the children (if born of a slave woman) shall become free, +or if the mother being free, the father be a slave, and subse- +quently acquire his freedom, the children shall in all these +cases succeed their father and mother, and the patron's rights +lie dormant. And such children we have called to the suc- +cession not only of their parents, but also of one another +reciprocally, by this enactment, whether those born in slavery +and subsequently manumitted are the only children, or whether +there be others conceived after their parents had obtained +their freedom, and whether they all have the same father and +mother, or the same father and different mothers, or vice +versa; the rules applying to children born in lawful wedlock +being applied here also. + +11 To sum up all that we have said, it appears that persons +related in the same degree of cognation to the deceased are +not always called together, and that even a remoter is some- +times preferred to a nearer cognate. For as family heirs and +those whom we have enumerated as equivalent to family +heirs have a priority over all other claimants, it is clear that +a great-grandson or great-great-grandson is preferred to a +brother, or the father or mother of the deceased; and yet the +father and mother, as we have remarked above, are in the +first degree of cognation, and the brother is in the second, +while the great-grandson and great-great-grandson are +only in the third and fourth respectively. And it is immaterial +whether the descendant who ranks among family heirs was +in the power of the deceased at the time of his death, or +out of it through having been emancipated or through being +the child of an emancipated child or a child of the female sex. +12 When there are no family heirs, and none of those persons +who we have said rank as such, an agnate who has lost none +of his agnatic rights, even though very many degrees removed +from the deceased, is usually preferred to a nearer cognate; +for instance, the grandson or great-grandson of a paternal +uncle has a better title than a maternal uncle or aunt. Ac- +cordingly, in saying that the nearest cognate is preferred +in the succession, or that, if there are several cognates in +the nearest degree, they are called equally, we mean that this +is the case if no one is entitled to priority, according to what +we have said, as either being or ranking as a family heir, or +as being an agnate; the only exceptions to this being emanci- +pated brothers and sisters of the deceased who are called to +succeed him, and ho, in spite of their loss of status, are pre- +ferred to other agnates in a remoter degree than themselves. +TITLE VII +OF THE SUCCESSION TO FREEDMEN + +Let us now turn to the property of freedmen. These were +originally allowed to pass over their patrons in their wills with +impunity: for by the statute of the Twelve Tables the +inheritance of a freedman devolved on his patron only when +he died intestate without leaving a family heir. If he died +intestate, but left a family heir, the patron was not entitled to +any portion of this property, and this, if the family heir was a +natural child, seemed to be no grievance; but if he was an +adoptive child, it was clearly unfair that the patron should be +debarred from all right to the succession. + +1 Accordingly this injustice of the law was at a later period +corrected by the praetor's Edict, by which, if a freedman made +a will, he was commanded to leave his patron half his property; +and, if he left him nothing at all, or less than a half, possession +of such half was given to him against the testament. If, on the +other hand, he died intestate, leaving as family heir an adoptive +son, the patron could obtain even against the latter possession +of the goods of the deceased to the extent of one-half. But +the freedman was enabled to exclude the patron if he left +natural children, whether in his power at the time of his death, +or emancipated or given in adoption, provided that he made +a will in which he instituted them heirs to any part of the +succession, or that, being passed over, they demanded pos- +session against the will under the Edict: 2 if disinherited, they +did not avail to bar the patron. At a still later period the lex +Papia Poppaea augmented the rights of patrons who had more +wealthy freedmen. By this it was enacted that, whenever +a freedman left property amounting in value to a hundred +thousand sesterces and upwards, and not so many as three +children, the patron, whether he died testate or intestate, +should be entitled to a portion equal to that of a single child. +Accordingly, if the freedman left a single son or daughter as +heir, the patron could claim half the property, exactly as if +he had died without leaving any children: if he left two +children as heirs, the patron could claim a third: if he left three, +the patron was excluded altogether. 3 In our constitution, +however, which we have drawn up in a convenient form and +in the Greek language, so as to be known by all, we have +established the following rules for application to such cases. +If the freedman or freedwoman is less than a ‘centenarius’, +that is, has a fortune of less than a hundred aurei (which +we have reckoned as equivalent to the sum of a hundred +thousand sesterces fixed by the lex Papia), the patron shall +have no right to any share in the succession if they make a +will; while, if they die intestate without leaving any children, +we have retained unimpaired the rights conferred on the +patron by the Twelve Tables. If they are possessed of more +than a hundred aurei, and leave a descendant or descend- +ants of either sex and any degree to take the inheritance civil +or praetorian, we have given to such child or children the +succession to their parents, to the exclusion of every patron +and his issue. If, however, they leave no children, and die +intestate, we have called the patron or patroness to their +whole inheritance: while if they make a will, passing over +their patron or patroness, and leaving no children, or having +disinherited such as they have, or (supposing them to be +mothers or maternal grandfathers) having passed them over +without leaving them the right to impeach the testament as +unduteous, then, under our constitution, the patron shall +succeed, by possession against the will, not, as before, to +one-half of the freedman's estate, but to one-third, or, if the +freedman or freedwoman has left him less than this third in his +or her will, to so much as will make up the difference. But +this third shall be free from all charges, even from legacies or +trust bequests in favour of the children of the freedman or +freedwoman, all of which are to fall on the patron's co-heirs. +In the same constitution we have gathered together the rules +applying to many other cases, which we deemed necessary +for the complete settlement of this branch of law: for instance, +a title to the succession of freedmen is conferred not only on +patrons and patronesses, but on their children and collateral +relatives to the fifth degree: all of which may be ascertained +by reference to the constitution itself. If, however, there are +several descendants of a patron or patroness, or of two or +several, the nearest in degree is to take the succession of the +freedman or freedwoman, which is to be divided, not among +the stocks, but by counting the heads of those nearest in +degree. And the same rule is to be observed with collaterals: +for we have made the law of succession to freedmen almost +identical with that relating to freeborn persons. 4 All that has +been said relates nowadays to freedmen who are Roman +citizens, for dediticii and Latini Iuniani having been together +abolished there are now no others. As to a statutory right of +succession to a Latin, there never was any such thing; for men +of this class, though during life they lived as free, yet as they +drew their last breath they lost their liberty along with their life, +and under the lex Iunia their manumitters kept their property, +like that of slaves, as a kind of peculium. It was subsequently +provided by the SC. Largianum that the manumitter's children, +unless expressly disinherited, should be preferred to his ex- +ternal heirs in succession to the goods of a Latin; and this was +followed by the edict of the Emperor Trajan, providing that +a Latin who contrived, without the knowledge or consent +of his patron, to obtain by imperial favour a grant of citizen- +ship should live a citizen, but die a Latin. Owing, however, +to the difficulties accompanying these changes of condition, +and others as well, we have determined by our constitution to +repeal for ever the lex Iunia, the SC. Largianum, and the edict +of Trajan, and to abolish them along with the Latins themselves, +so as to enable all freedmen to enjoy the citizenship of Rome: +and we have converted in a wonderful manner the modes in +which persons became Latins, with some additions, into +modes of attaining Roman citizenship. + +TITLE VIII +OF THE ASSIGNMENT OF FREEDMEN + +Before we leave the subject of succession to freedmen, we +should observe a resolution of the Senate, to the effect that, +though the property of freedmen belongs in equal portions +to all the patron's children who are in the same degree, it +shall yet be lawful for a parent to assign a freedman to one +of his children, so that after his own death the assignee shall +be considered his sole patron, and the other children who, +had it not been for such assignment, would be admitted +equally with him, shall have no claim to the succession what- +ever: though they recover their original rights if the assignee +dies without issue. + +1 It is lawful to assign freedwomen as well as freedmen, and +to daughters and granddaughters no less than to sons and +grandsons; 2 and the power of assignment is conferred on all +who have two or more children in their power, and enables +them to assign a freedman or freedwoman to such children +while so subject to them. Accordingly the question arose, +whether the assignment becomes void, if the parent subse- +quently emancipates the assignee? and the affirmative opinion, +which was held by Julian and many others, has now become +settled law. 3 It is immaterial whether the assignment is made +in a testament or not, and indeed patrons are enabled to +exercise this power in any terms whatsoever, as is provided +by the senatusconsult passed in the time of Claudius, when +Suillus Rufus and Ostorius Scapula were consuls. + +TITLE IX +OF POSSESSION OF GOODS + +The law as to possession of goods was introduced by the +praetor by way of amending the older system, and this not +only in intestate succession, as has been described, but also +in cases where deceased persons have made a will. For +instance, although the posthumous child of a stranger, if +instituted heir, could not by the civil law enter upon the in- +heritance, because his institution would be invalid, he could +with the assistance of the praetor be made possessor of the +goods by the praetorian law. Such a one can now, however, +by our constitution be lawfully instituted, as being no longer +unrecognised by the civil law. + +1 Sometimes, however, the praetor promises the possession +of goods rather in confirmation of the old law than for the +purpose of correcting or impugning it; as, for instance, when +he gives possession in accordance with a duly executed will +to those who have been instituted heirs therein. Again, he +calls family heirs and agnates to the possession of goods on +an intestacy; and yet, even putting aside the possession of +goods, the inheritance belongs to them already by the civil +law. 2 Those whom the praetor calls to a succession do not +become heirs in the eye of the law, for the praetor cannot +make an heir, because persons become heirs by a statute +only, or some similar ordinance such as a senatusconsult or +an imperial constitution: but as the praetor gives them the +possession of goods they become quasi-heirs, and are called +`possessors of goods.' And several additional grades of +grantees of possession were recognised by the praetor in his +anxiety that no one might die without a successor; the right +of entering upon an inheritance, which had been confined by +the statute of the Twelve Tables within very narrow limits, +having been conferred more extensively by him in the spirit +of justice and equity. 3 The following are the kinds of testa- +mentary possession of goods. First, the so-called +`contratabular' possession, given to children who are merely +passed over in the will. Second, that which the praetor +promises to all duly instituted heirs, and which is for that +reason called secundum tabulas. Then, having spoken of +wills, the praetor passes on to cases of intestacy, in which, +firstly, he gives the possession of goods which is called unde +liberi to family heirs and those who in his Edict are ranked as +such. Failing these, he gives it, secondly, to successors having +a statutory title: thirdly, to the ten persons whom he preferred +to the manumitter of a free person, if a stranger in relation to +the latter, namely the latter's father and mother, grandparents +paternal and maternal, children, grandchildren by daughters as +well as by sons, and brothers and sisters whether of the whole +or of the half blood only. The fourth degree of possession is +that given to the nearest cognates: the fifth is that called +tum quam ex familia: the sixth, that given to the patron and +patroness, their children and parents: the seventh, that given to +the husband or wife of the deceased: the eighth, that given to +cognates of the manumitter. 4 Such was the system established +by the praetorian jurisdiction. We, however, who have been +careful to pass over nothing, but correct all defects by our +constitutions, have retained, as necessary, the possession of +goods called contra tabulas and secundum tabulas, and +also the kinds of possession upon intestacy known as unde +liberis and unde legitimi. 5 The possession, however, which +in the praetor's Edict occupied the fifth place, and was called +unde decem personae, we have with benevolent intentions +and with a short treatment shown to be superfluous. Its effect +was to prefer to the extraneous manumitter the ten persons +specified above; but our constitution, which we have made +concerning the emancipation of children, has in all cases made +the parent implicitly the manumitter, as previously under a +fiduciary contract, and has attached this privilege to every +such manumission, so as to render superfluous the aforesaid +kind of possession of goods. We have therefore removed it, +and put in its place the possession which the praetor promises +to the nearest cognates, and which we have thus made the +fifth kind instead of the sixth. 6 The possession of goods +which formerly stood seventh in the list, which was called +tum quam ex familia, and that which stood eighth, namely, +the possession entitled unde liberi patroni patronaeque et +parentes eorum, we have altogether suppressed by our +constitution respecting the rights of patrons. For, having +assimilated the succession to freedmen to the succession to +freeborn persons, with this sole exception -- in order to pre- +serve some difference between the two classes -- that no one +has any title to the former who is related more distantly than +the fifth degree, we have left them sufficient remedies in the +`contratabular' possession, and in those called unde legitimi +and unde cognati, wherewith to vindicate their rights, so +that thus all the subtleties and inextricable confusion of these +two kinds of possession of goods have been abolished. +7 We have preserved in full force another possession of goods, +which is called unde vir et uxor, and which occupied the ninth +place in the old classification, and have given it a higher place, +namely, the sixth. The tenth kind, which was called unde +cognati manumissoris, we have very properly abolished for +reasons which have been already stated: thus leaving in full +operation only six ordinary kinds of possession of goods. +8 The seventh, which follows them, was introduced with most +excellent reason by the praetors, whose Edict finally promised +the possession of goods to those persons expressly entitled +to it by any statute, senatusconsult, or imperial constitution; +but this was not permanently incorporated by the praetor with +either the intestate or the testamentary kinds of possession, +but was accorded by him, as circumstances demanded, as +an extreme and extraordinary remedy to those persons who +claim, either under a will or on an intestacy, under statutes, +senatusconsults, or the more recent legislation of the emperors. +9 The praetor, having thus introduced many kinds of suc- +cessions, and arranged them in a system, fixed a definite time +within which the possession of goods must be applied for, +as there are often several persons entitled in the same kind +of succession, though related in different degrees to the +deceased, in order to save the creditors of the estate from +delay in their suits, and to provide them with a proper defend- +ant to sue; and with the object also of making it less easy +for them to obtain possession of the property of the deceased, +as in bankruptcy, wherein they consulted their own advantage +only. He allowed to children and parents, adoptive no less +than natural, an interval of a year, and to all other persons one +hundred days, within which to make the application. 10 If a +person entitled does not apply for the possession of goods +within the time specified, his portion goes by accrual to those +in the same degree or class with himself: or, if there be none, +the praetor promises by his successory edict the possession +to those in the next degree, exactly as if the person in the +preceding one were non-existent. If any one refuses the +possession of goods which he has the opportunity of accept- +ing, it is not unusual to wait until the aforesaid interval, within +which possession must be applied for, has elapsed, but the +next degree is admitted immediately under the same edict. +11 In reckoning the interval, only those days are considered +upon which the persons entitled could have made application. +12 Earlier emperors, however, have judiciously provided that +no one need trouble himself expressly to apply for the possess- +ion of goods, but that, if he shall within the prescribed time in +any manner have signified his intention to accept, he shall have +the full benefit of such tacit acceptance. + +TITLE X +OF ACQUISITION BY ADROGATION + +There is another kind of universal succession which owes its +introduction neither to the statute of the Twelve Tables nor +to the praetor’s Edict, but to the law which is based upon +custom and consent. + +1 When an independent person gives himself in adrogation, all +his property, corporeal and incorporeal, and all debts due to +him formerly passed in full ownership to the adrogator, except +such rights as are extinguished by loss of status, for instance, +bounden services of freedmen and rights of agnation. Use and +usufruct, though formerly enumerated among such rights, have +now been saved by our constitution from extinction by the least +loss of status. 2 But we have now confined acquisition by +adrogation within the same limits as acquisition through their +children by natural parents; that is to say, adoptive as well as +natural parents acquire no greater right in property which +comes to children in their power from any extraneous source +than a mere usufruct; the ownership is vested in the children +themselves. But if a son who has been adrogated dies in his +adoptive family, the whole of his property vests in the adro- +gator, failing those persons who, under our constitution, are +preferred to the father in succession to property which is not +acquired immediately from him. 3 Conversely, the adrogator +is not, by strict law, suable for the debts of his adoptive son, +but an action may be brought against him as his represent- +ative; and if he declines to defend the latter, the creditors are +allowed, by an order of the magistrates having jurisdiction in +such cases, to take possession of the property of which the +usufruct as well as the ownership would have belonged to +the son, had he not subjected himself to the power of another, +and to dispose of it in the mode prescribed by law. + +TITLE XI +OF THE ADJUDICATION OF A DECEASED +PERSON’S ESTATE TO PRESERVE THE GIFTS +OF LIBERTY + +A new form of succession was added by a constitution of the +Emperor Marcus, which provided that if slaves, who have +received a bequest of liberty from their master in a will under +which no heir takes, wish to have his property adjudged to +them, their application shall be entertained. + +1 Such is the substance of a rescript addressed by the Emperor +Marcus to Popilius Rufus, which runs as follows: ‘If there is +no successor to take on the intestacy of Virginius Valens, who +by his will has conferred freedom on certain of his slaves, and +if, consequently, his property is in danger of being sold, the +magistrate who has cognizance of such matters shall on appli- +cation entertain your desire to have the property adjudged to +you, in order to give effect to the bequests of liberty, direct +and fiduciary, provided you give proper security to the credit- +ors for payment of their claims in full. Slaves to whom liberty +has been directly bequeathed shall become free exactly as if +the inheritance had been actually accepted, and those whom +the heir was requested to manumit shall obtain their liberty +from you; provided that if you will have the property adjudg- +ed to you only upon the condition, that even the slaves who +have received a direct bequest of liberty shall become your +freedmen, and if they, whose status is now in question, agree +to this, we are ready to authorize compliance with your wishes. +And lest the benefit afforded by this our rescript be rendered +ineffectual in another way, by the Treasury laying claim to the +property, be it hereby known to those engaged in our service +that the cause of liberty is to be preferred to pecuniary +advantage, and that they must so effect such seizures as to +preserve the freedom of those who could have obtained it had +the inheritance been accepted under the will.’ 2 This rescript +was a benefit not only to slaves thus liberated, but also to the +deceased testators themselves, by saving their property +from being seized and sold by their creditors; for it is certain +that such seizure and sale cannot take place if the property +has been adjudged on this account, because some one has +come forward to defend the deceased, and a satisfactory +defender too, who gives the creditors full security for payment. +3 Primarily, the rescript is applicable only where freedom is +conferred by a will. How then will the case stand, if a man +who dies intestate makes gifts of freedom by codicils, and on +the intestacy no one accepts the inheritance? We answer, +that the boon conferred by the constitution ought not here to +be refused. No one can doubt that liberty given, in codicils, +by a man who dies having made a will, is effectual. 4 The +terms of the constitution show that it comes into application +when there is no successor on an intestacy; accordingly, it is +of no use so long as it is uncertain whether there will be one or +not; but, when this has been determined in the negative, it at +once becomes applicable. 5 Again, it may be asked whether, +if a person who abstains from accepting an inheritance can +claim a judicial restoration of rights, the constitution can still +be applied, and the goods adjudged under it? And what, if +such person obtains a restoration after they have been actually +adjudged in order to give effect to the bequest of freedom? +We reply that gifts of liberty to which effect has once been +given cannot possibly be recalled. 6 The object with which +this constitution was enacted was to give effect to bequests +of liberty, and accordingly it is quite inapplicable where no +such bequests are made. Supposing, however, that a man +manumits certain slaves in his lifetime, or in contemplation of +death, and in order to prevent any questions arising whether +the creditors have thereby been defrauded, the slaves are +desirous of having the property adjudged to them, should this +be permitted? and we are inclined to say that it should, though +the point is not covered by the terms of the constitution. +7 Perceiving, however, that the enactment was wanting in +many minute points of this kind, we have ourselves issued a +very full constitution, in which have been collected many +conceivable cases by which the law relating to this kind of +succession has been completed, and with which any one +can become acquainted by reading the constitution itself. + +TITLE XII +OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, +IN SALE OF GOODS UPON BANKRUPTCY, +AND UNDER THE SC. CLAUDIANUM + +There were other kinds of universal succession in existence +prior to that last before mentioned; for instance, the ‘purchase +of goods’ which was introduced with many prolixities of form +for the sale of insolvent debtors’ estates, and which remained +in use under the so-called ‘ordinary’ system of procedure. +Later generations adopted the ‘extraordinary’ procedure, and +accordingly sales of goods became obsolete along with the +ordinary procedure of which they were a part. Creditors are +now allowed to take possession of their debtor’s property +only by the order of a judge, and to dispose of it as to them +seems most advantageous; all of which will appear more per- +fectly from the larger books of the Digest. + +1 There was too a miserable form of universal acquisition under +the SC. Claudianum, when a free woman, through indulgence +of her passion for a slave, lost her freedom by the senatus- +consult, and with her freedom her property. But this enactment +we deemed unworthy of our times, and have ordered its +abolition in our Empire, nor allowed it to be inserted in our +Digest. + +TITLE XIII +OF OBLIGATIONS + +Let us now pass on to obligations. An obligation is a legal +bond, with which we are bound by a necessity of performing +some act according to the laws of our State. 1 The leading +division of obligations is into two kinds, civil and praetorian. +Those obligations are civil which are established by statute, +or at least are sanctioned by the civil law; those are praetorian +which the praetor has established by his own jurisdiction, +and which are also called honorary. 2 By another division +they are arranged in four classes, contractual, quasi-contractual, +delictal, and quasi-delictal. And first, we must examine those +which are contractual, and which again fall into four species, +for contract is concluded either by delivery, by a form of +words, by writing, or by consent: each of which we will +treat in detail. + +TITLE XIV +OF REAL CONTRACTS, OR THE MODES IN WHICH +OBLIGATIONS ARE CONTRACTED BY DELIVERY + +Real contracts, or contracts concluded by delivery, are ex- +emplified by loan for consumption, that is to say, loan of such +things as are estimated by weight, number, or measure, for +instance, wine, oil, corn, coined money, copper, silver, or +gold: things in which we transfer our property on condition +that the receiver shall transfer to us, at a future time, not the +same things, but other things of the same kind and quality: +and this contract is called mutuum, because thereby meum +or mine becomes tuum or thine. The action to which it +gives rise is called a condiction. 1 Again, a man is bound by +a real obligation if he takes what is not owed him from another +who pays him by mistake; and the latter can, as plaintiff, bring +a condiction against him for its recovery, after the analogy of +the action whose formula ran ‘if it be proved that he ought to +convey,’ exactly as if the defendant had received a loan from +him. Consequently a pupil who, by mistake, is paid something +which is not really owed him without his guardian’s authority, +will no more be bound by a condiction for the recovery of +money not owed than by one for money received as a loan: +though this kind of liability does not seem to be founded on +contract; for a payment made in order to discharge a debt is +intended to extinguish, not to create, an obligation. 2 So too +a person to whom a thing is lent for use is laid under a real +obligation, and is liable to the action on a loan for use. The +difference between this case and a loan for consumption is +considerable, for here the intention is not to make the object +lent the property of the borrower, who accordingly is bound +to restore the same identical thing. Again, if the receiver of a +loan for consumption loses what he has received by some +accident, such as fire, the fall of a building, shipwreck, or the +attack of thieves or enemies, he still remains bound: but the +borrower for use, though responsible for the greatest care in +keeping what is lent him -- and it is not enough that he has +shown as much care as he usually bestows on his own affairs, +if only some one else could have been more diligent in the +charge of it -- has not to answer for loss occasioned by fire or +accident beyond his control, provided it did not occur through +any fault of his own. Otherwise, of course, it is different: for +instance, if you choose to take with you on a journey a thing +which has been lent to you for use, and lose it by being at- +tacked by enemies or thieves, or by a shipwreck, it is beyond +question that you will be liable for its restoration. A thing is not +properly said to be lent for use if any recompense is received +or agreed upon for the service; for where this is the case, the +use of the thing is held to be hired, and the contract is of a +different kind, for a loan for use ought always to be gratuitous. +3 Again, the obligation incurred by a person with whom a +thing is deposited for custody is real, and he can be sued by +the action of the deposit; he too being responsible for the re- +storation of the identical thing deposited, though only where +it is lost through some positive act of commission on his part: +for for carelessness, that is to say, inattention and negligence, +he is not liable. Thus a person from whom a thing is stolen, +in the charge of which he has been most careless, cannot be +called to account, because, if a man entrusts property to the +custody of a careless friend, he has no one to blame but him- +self for his want of caution. 4 Finally, the creditor who takes +a thing in pledge is under a real obligation, and is bound to +restore the thing itself by the action of pledge. A pledge, +however, is for the benefit of both parties; of the debtor, because +it enables him to borrow more easily, and of the creditor, because +he has the better security for repayment; and accordingly, it is a +settled rule that the pledgee cannot be held responsible for more +than the greatest care in the custody of the pledge; if he shows +this, and still loses it by some accident, he himself is freed from +all liability, without losing his right to sue for the debt. + +TITLE XV +OF VERBAL OBLIGATION + +An obligation is contracted by question and answer, that is to +say, by a form of words, when we stipulate that property shall +be conveyed to us, or some other act be performed in our +favour. Such verbal contracts ground two different action, +namely condiction, when the stipulation is certain, and the +action on stipulation, when it is uncertain; and the name is +derived from stipulum, a word in use among the ancients +to mean ‘firm,’ coming possibly from stipes, the trunk of a +tree. + +1 In this contract the following forms of words were formerly +sanctioned by usage: ‘Do you engage yourself to do so and +so?’ ‘I do engage myself.’ ‘Do you promise?’ ‘I do promise.’ + ‘Do you pledge your credit?’ ‘I pledge my credit.’ ‘Do you +guarantee?’ ‘I guarantee.’ ‘Will you convey?’ ‘I will convey.’ +‘Will you do?’ ‘I will do.’ Whether the stipulation is in Latin, +or Greek, or any other language, is immaterial, provided the +two parties understand one another, so that it is not necessary +even that they should both speak in the same tongue, so long +as the answer corresponds to the question, and thus two +Greeks, for instance, may contract an obligation in Latin. But +it was only in former times that the solemn forms referred to +were in use: for subsequently, by the enactment of Leo’s +constitution, their employment was rendered unnecessary, +and nothing was afterwards required except that the parties +should understand each other, and agree to the same thing, +the words in which such agreement was expressed being +immaterial. + +2 The terms of a stipulation may be absolute, or performance +may either be postponed to some future time, or be made +subject to a condition. An absolute stipulation may be ex- +emplified by the following: ‘Do you promise to give five aurei?’ +and here (if the promise be made) that sum may be instantly +sued for. As an instance of stipulation in diem, as it is called +where a future day is fixed for payment, we may take the +following: ‘Do you promise to give ten aurei on the first of +March?’ In such a stipulation as this, an immediate debt is +created, but it cannot be sued upon until the arrival of the day +fixed for payment: and even on that very day an action cannot +be brought, because the debtor ought to have the whole of it +allowed to him for payment; for otherwise, unless the whole +day on which payment was promised is past, it cannot be +certain that default has been made. 3 If the terms of your +stipulation run ‘Do you promise to pay me ten aurei a year +so long as I live?’ the obligation is deemed absolute, and +the liability perpetual, for a debt cannot be owed till a certain +time only; though if the promisee’s heir sues for payment, he +will be successfully met by the plea of contrary agreement. +4 A stipulation is conditional, when performance is made to +depend on some uncertain event in the future, so that it becomes +actionable only on something being done or omitted: for +instance, ‘Do you promise to give five aurei if Titius is made +consul?’ If, however, a man stipulates in the form ‘Do you +promise to give so and so, if I do not go up to the Capitol?’ +the effect is the same as if he had stipulated for payment to +himself at the time of his death. The immediate effect of a con- +ditional stipulation is not a debt, but merely the expectation +that at some time there will be a debt: and this expectation +devolves on the stipulator’s heir, supposing he dies himself +before fulfilment of the condition. 5 It is usual in stipulations +to name a place for payment; for instance, ‘Do you promise +to give at Carthage?’ Such a stipulation as this, though in its +terms absolute, implies a condition that enough time shall be +allowed to the promisor to enable him to pay the money at +Carthage. Accordingly, if a man at Rome stipulates thus, +‘Do you promise to pay to-day at Carthage?’ the stipulation +is void, because the performance of the act to be promised +is a physical impossibility. 6 Conditions relating to past or +present time either make the obligation void at once, or have +no suspensive operation whatever. Thus, in the stipulation +‘Do you promise to give so and so, if Titius has been consul, +or if Maevius is alive?’ the promise is void, if the condition +is not satisfied; while if it is, it is binding at once: for events +which in themselves are certain do not suspend the binding +force of an obligation, however uncertain we ourselves may +be about them. + +7 The performance or non-performance of an act may be the +object of a stipulation no less than the delivery of property, +though where this is the case, it will be best to connect the non- +performance of the act to be performed, or the performance +of the act to be omitted, with a pecuniary penalty to be paid +in default, lest there be doubt as to the value of the act or +omission, which will make it necessary for the plaintiff to prove +to what damages he is entitled. Thus, if it be a performance +which is stipulated for, some such penalty should be added +as in the following: ‘If so and so is not done, do you promise +to pay ten aurei as a penalty?’ And if the performance of +some acts, and the non-performance of others, are bargained +for in the same stipulation, a clause of the following kind +should be added, ‘If any default is made, either as contrary +to what is agreed upon, or by way of non-performance, do +you promise to pay a penalty of ten aurei?’ + +TITLE XVI +OF STIPULATIONS IN WHICH THERE ARE +TWO CREDITORS OR TWO DEBTORS + +There may be two or more parties on either side in a stipulation, +that is to say, as promisors or promisees. Joint promises are +so constituted by the promisor answering, ‘I promise,’ after +they have all first asked the question; for instance, if after two +promises have separately stipulated from him, he answers, +‘I promise to give so and so to each of you.’ But if he first +promises to Titius, and then, on another’s putting the question +to him, promises to him too, there will be two distinct obli- +gations, namely, one between him and each of the promisees, +and they are not considered joint promisees at all. The usual +form to constitute two or more joint promisors is as follows, +-- ‘Maevius, do you promise to give five aurei? Seius, do you +promise to give the same five aurei?’ and in answer they reply +separately, ‘I promise.’ 1 In obligations of this kind each joint +promisee is owed the whole sum, and the whole sum can be +claimed from each joint promisor; and yet in both cases but +one payment is due, so that if one joint promisee receives the +debt, or one joint promisor pays it, the obligation is thereby +extinguished for all, and all are thereby released from it. +2 Of two joint promisors one may be bound absolutely, while +performance by the other is postponed to a future day, or +made to depend on a condition; but such postponement or +such condition in no way prevents the stipulator from at +once suing the one who was bound absolutely. + +TITLE XVII +OF STIPULATIONS MADE BY SLAVES + +>From his master’s legal capacity a slave derives ability to be +promisee in a stipulation. Thus, as an inheritance in most +matters represents the legal ‘person’ of the deceased, what- +ever a slave belonging to it stipulates for, before the inheritance +is accepted, he acquires for the inheritance, and so for the +person who subsequently becomes heir. 1 All that a slave +acquires by a stipulation he acquires for his master only, +whether it was to that master, or himself, or his fellow slave, +or no one in particular that performance was to be made +under the contract; and the same principle applies to children +in power, so far as they now are instruments of acquisition +for their father. 2 When, however, what is stipulated for is +permission to do some specific act, that permission cannot +extend beyond the person of the promisee: for instance, +if a slave stipulates for permission to cross the promisor’s +land, he cannot himself be denied passage, though his master +can. 3 A stipulation by a slave belonging to joint owners +enures to the benefit of all of them in proportion to the shares +in which they own him, unless he stipulated at the bidding, +or expressly in favour, of one of them only, in which case +that one alone is benefited. Where a jointly owned slave +stipulates for the transfer of property which cannot be +acquired for one of his two masters, the contract enures to +the benefit of the other only: for instance, where the stip- +ulation is for the transfer of a thing which already belongs +to one of them. + +TITLE XVIII +OF THE DIFFERENT KINDS OF STIPULATIONS + +Stipulations are either judicial, praetorian, conventional, or +common: by the latter being meant those which are both +praetorian and judicial. 1 Judicial stipulations are those which +it is simply part of the judge’s duty to require; for instance, +security against fraud, or for the pursuit of a runaway slave, +or (in default) for payment of his value. 2 Those are praetor- +ian, which the praetor is bound to exact simply in virtue of +his magisterial functions; for instance, security against appre- +hended damage, or for payment of legacies by an heir. Under +praetorian stipulations we must include also those directed +by the aedile, for these too are based upon jurisdiction. +3 Conventional stipulations are those which arise merely from +the agreement of the parties, apart from any direction of a +judge or of the praetor, and which one may almost say are of +as many different kinds as there are conceivable objects to a +contract. 4 Common stipulations may be exemplified by that +by which a guardian gives security that his ward’s property +will not be squandered or misappropriated, which he is some- +times required to enter into by the praetor, and sometimes +also by a judge when the matter cannot be managed in any +other way; or, again, we might take the stipulation by which +an agent promises that his acts shall be ratified by his principal. + +TITLE XIX +OF INVALID STIPULATIONS + +Anything, whether movable or immovable, which admits +of private ownership, may be made the object of a stipulation; +1 but if a man stipulates for the delivery of a thing which +either does not or cannot exist, such as Stichus, who is dead +but whom he though alive, or an impossible creature, like a +hippocentaur, the contract will be void. 2 Precisely the same +principles applies where a man stipulates for the delivery of +a thing which is sacred or religious, but which he thought was +a subject of human ownership, or of a thing which is public, +that is to say, devoted in perpetuity to the use and enjoyment +of the people at large, like a forum or theatre, or of a free +man whom he thought a slave, or of a thing which he is +incapable of owning, or which is his own already. And the +fact that a thing which is public may become private property, +that a free man may become a slave, that the stipulator may +become capable of owning such and such a thing, or that +such and such a thing may cease to belong to him, will not +avail to merely suspend the force of the stipulation in these +cases, but it is void from the outset. Conversely, a stipulation +which originally was perfectly good may be avoided by the +thing, which is its object, acquiring any of the characters just +specified through no fault of the promisor. And a stipulation, +such as ‘do you promise to convey Lucius Titius when he +shall be a slave’ and others like it, are also void from the +beginning; for objects which by their very nature cannot be +owned by man cannot either in any way be made the object +of an obligation. 3 If one man promises that another shall +convey, or do so and so, as, for instance, that Titius shall +give five aurei, he will not be bound, though he will if he +promises to get Titius to give them. 4 If a man stipulates for +conveyance to, or performance in favour of, another person +who is not his paterfamilias, the contract is void; though of +course performance to a third person may be bargained for +(as in the stipulation ‘do you promise to give to me or to +Seius?’); where, though the obligation is created in favour of +the stipulator only, payment may still be lawfully made to +Seius, even against the stipulator’s will, the result of which, +if it is done, being that the promisor is entirely released from +his obligation, while the stipulator can sue Seius by the action +of agency. If a man stipulates for payment of ten aurei to +himself and another who is not his paterfamilias, the contract +will be good, though there has been much doubt whether in +such a case the stipulator can sue for the whole sum agreed +upon, or only half; the law is now settled in favour of the +smaller sum. If you stipulate for performance in favour of +one in your power, all benefit under the contract is taken by +yourself, for your words are as the words of your son, as +his words are as yours, in all cases in which he is merely an +instrument of acquisition for you. 5 Another circumstance +by which a stipulation may be avoided is want of corre- +spondence between question and answer, as where a man +stipulates from you for payment of ten aurei, and you promise +five, or vice versa; or where his question is unconditional, +your answer conditional, or vice versa, provided only that in +this latter case the difference is express and clear; that is to +say, if he stipulates for payment on fulfilment of a condition, +or on some determinate future day, and you answer: ‘I +promise to pay to-day,’ the contract is void; but if you merely +answer: ‘I promise,’ you are held by this laconic reply to +have undertaken payment on the day, or subject to the +condition specified; for it is not essential that every word +used by the stipulator should be repeated in the answer of +the promise. 6 Again, no valid stipulation can be made +between two persons of whom one is in the power of the +other. A slave indeed cannot be under an obligation to +either his master or anybody else: but children in power can +be bound in favour of any one except their own paterfamilias. +7 The dumb, of course, cannot either stipulate or promise, +nor can the deaf, for the promisee in stipulation must hear +the answer, and the promisor must hear the question; and +this makes it clear that we are speaking of persons only who +are stone deaf, not of those who (as it is said) are hard of +hearing. 8 A lunatic cannot enter into any contract at all, +because he does not understand what he is doing. 9 On +the other hand a pupil can enter into any contract, provided +that he has his guardian’s authority, when necessary, as it +is for incurring an obligation, though not for imposing an +obligation on another person. 10 This concession of legal +capacity of disposition is manifestly reasonable in respect of +children who have acquired to some understanding, for child- +ren below the age of seven years, or who have just passed +that age, resemble lunatics in want of intelligence. Those, +however, who have just completed their seventh year are per- +mitted, by a beneficent interpretation of the law, in order to +promote their interests, to have the same capacity as those +approaching the age of puberty; but a child below the latter +age, who is in paternal power, cannot bind himself even with +his father’s sanction. 11 An impossible condition is one +which, according to the course of nature, cannot be fulfilled, +as, for instance, if one says: ‘Do you promise to give if I +touch the sky with my finger?’ But if the stipulation runs: ‘Do +you promise to give if I do not touch the sky with my finger?’ +it is considered unconditional, and accordingly can be sued +upon at once. 12 Again, a verbal obligation made between +persons who are not present with one another is void. This +rule, however, afforded contentious persons opportunities of +litigation, by alleging, after some interval, that they, or their +adversaries, had not been present on the occasion in question; +and we have therefore issued a constitution, addressed to the +advocates of Caesarea, in order with the more dispatch to +settle such disputes, whereby it is enacted that written docu- +ments in evidence of a contract which recite the presence +of the parties shall be taken to be indisputable proof of the +fact, unless the person, who resorts to allegations usually so +disgraceful, proves by the clearest evidence, either document- +ary or borne by credible witnesses, that he or his adversary +was elsewhere than alleged during the whole day on which the +document is stated to have been executed. 13 Formerly, a +man could not stipulate that a thing should be conveyed to +him after his own death, or after that of the promisor; nor +could one person who was in another’s power even stipulate +for conveyance after that person’s death, because he was +deemed to speak with the voice of his parent or master; and +stipulations for conveyance the day before the promisee’s +or promisor’s decease were also void. Stipulation, however, +as has already been remarked, derive their validity from the +consent of the contracting parties, and we therefore introduced +a necessary emendation in respect also of this rule of law, by +providing that a stipulation shall be good which bargains for +performance either after the death, or the day before the death, +of either promisee or promisor. 14 Again, a stipulation in the +form: ‘Do you promise to give to-day, if such or such a ship +arrives from Asia to-morrow?’ was formerly void, as being +preposterous in its expression, because what should come +last is put first. Leo, however, of famous memory held that +a preposterous stipulation in the settlement of a dowry ought +not to be rejected as void, and we have determined to allow +it perfect validity in every case, and not merely in that in which +it was formerly sanctioned. 15 A stipulation, say by Titius, in +the form: ‘Do you promise to give when I shall die’ or ‘when +you shall die’? is good now, as indeed it always was even +under the older law. 16 So too a stipulation for performance +after the death of a third person is good. 17 If a document in +evidence of a contract states that so and so promised, the +promise is deemed to have been given in answer to a pre- +ceding question. 18 When several acts of conveyance or +performance are comprised in a single stipulation, if the pro- +misor simply answers: ‘I promise to convey,’ he becomes +liable on each and all of them, but if he answers that he will +convey only one or some of them, he incurs an obligation in +respect of those only which are comprised in his answer, +there being in reality several distinct stipulations of which only +one or some are considered to have acquired binding force: +for for each act of conveyance or performance there ought +to be a separate question and a separate answer. 19 As has +been already observed, no one can validly stipulate for per- +formance to a person other than himself, for the purpose of +this kind of obligation is to enable persons to acquire for +themselves that whereby they are profited, and a stipulator +is not profited if the conveyance is made to a third person. +Hence, if it be wished to make a stipulation in favour of any +such third person, a penalty should be stipulated for, to be +paid, in default of performance of that which is in reality the +object of the contract, to the party who otherwise would +have no interest in such performance; for when one stipulates +for a penalty, it is not his interest in what is the real contract +which is considered, but only the amount to be forfeited to +him upon non-fulfilment of the condition. So that a stipulation +for conveyance to Titius, but made by some one else, is void: +but the addition of a penalty, in the form ‘If you do not +convey, do you promise to pay me so many aurei?’ makes +it good and actionable. 20 But where the promisor stipulates +in favour of a third person, having himself an interest in the +performance of the promise, the stipulation is good. For +instance, if a guardian, after beginning to exercise his tutorial +functions, retires from their exercise in favour of his fellow +guardian, taking from him by stipulation security for the due +charge of the ward’s property, he has a sufficient interest in +the performance of this promise, because the ward could have +sued him in case of maladministration, and therefore the +obligation is binding. So too a stipulation will be good by +which one bargains for delivery to one’s agent, or for pay- +ment to one’s creditor, for in the latter case one may be so +far interested in the payment that, if it not be made, one will +become liable to a penalty or to having a foreclosure of +estates which one has mortgaged. 21 Conversely, he who +promises that another shall do so and so is not bound unless +he promises a penalty in default; 22 and, again, a man cannot +validly stipulate that property which will hereafter be his shall +be conveyed to him as soon as it becomes his own. 23 If a +stipulator and the promisor mean different things, there is no +contractual obligation, but it is just as if no answer had been +made to the question; for instance, if one stipulates from you +for Stichus, and you think he means Pamphilus, whose name +you believed to be Stichus. 24 A promise made for an illegal +or immoral purpose, as, for instance, to commit a sacrilege +or homicide, is void. + +25 If a man stipulates for performance on the fulfilment of a +condition, and dies before such fulfilment, his heir can sue on +the contract when it occurs: and the heir of the promisor can +be sued under the same circumstances. 26 A stipulation for +a conveyance this year, or this month, cannot be sued upon +until the whole year, or the whole month, has elapsed: 27 and +similarly the promisee cannot sue immediately upon a stip- +ulation for the conveyance of an estate or a slave, but only +after allowing a sufficient interval for the conveyance to be +made. + +TITLE XX +OF FIDEJUSSORS OR SURETIES + +Very often other persons, called fidejussors or sureties, are +bound for the promisor, being taken by promises as additional +security. 1 Such sureties may accompany any obligation, +whether real, verbal, literal or consensual: and it is immaterial +even whether the principal obligation be civil or natural, so +that a man may go surety for the obligation of a slave either +to a stranger or to his master. 2 A fidejussor is not only +bound himself, but his obligation devolves also on his heir’ +3 and the contract of suretyship may be entered into before +no less than after the creation of the principal obligation. 4 If +there are several fidejussors to the same obligation, each of +them, however many they are, is liable for the whole amount, +and the creditor may sue whichever he chooses for the whole; +but by the letter of Hadrian he may be compelled to sue for +only an aliquot part, determined by the number of sureties +who are solvent at the commencement of the action: so that +if one of them is insolvent at that time the liability of the rest +is proportionately increased. Thus, if one fidejussor pay the +whole amount, he alone suffers by the insolvency of the +principal debtor; but this is his own fault, as he might have +availed himself of the letter of Hadrian, and required that +the claim should be reduced to his rateable portion. 5 Fide- +jussors cannot be bound for more than their principal, for +their obligation is but accessory to the latter’s, and the +accessory cannot contain more than the principal; but they +can be bound for less. Thus, if the principal debtor promised +ten aurei, the fidejussor can well be bound for five, but not +vice versa; and if the principal’s promise is absolute, that of +the fidejussor may be conditional, though a conditional promise +cannot be absolutely guaranteed, for more and less is to be +understood of time as well as of quantity, immediate payment +being regarded as more, and future payment as less. 6 For +the recovery of anything paid by him for the principal the +fidejussor can sue the latter by the action on agency. 7 A +fidejussor may be taken in Greek, by using the expressions +‘tei emei pistei keleuo,’ ‘lego,’ ‘thelo,’ or ‘boulomai’; and +‘phemi’ will be taken as equivalent to ‘lego.’ 8 It is to be +observed that in the stipulations of fidejussors the general rule +is that whatever is stated in writing to have been done is taken +to have really been done; and, accordingly, it is settled law +that if a man signs his name to a paper stating that he became +a fidejussor, all formalities are presumed to have been duly +observed. + +TITLE XXI +OF LITERAL OBLIGATION + +Formerly there was a kind of obligation made by writing, +and said to be contracted by the entry of a debt in a ledger; +but such entries have nowadays gone out of use. Of course, +if a man states in writing that he owes money which has never +been paid over to him, he cannot be allowed, after a consider- +able interval, to defend himself by the plea that the money was +not, in fact, advanced; for this is a point which has frequently +been settled by imperial constitutions. The consequence is, +that even at the present day a person who is estopped from +this plea is bound by his written signature, which (even of +course where there is no stipulation) is ground for a condic- +tion. The length of time after which this defence could not +be pleaded was formerly fixed by imperial constitutions at +five years; but it has been reduced by our constitution, in +order to save creditors from a more extended risk of being +defrauded of their money, so that now it cannot be advanced +after the lapse of two years from the date of the alleged +payment. + +TITLE XXII +OF OBLIGATION BY CONSENT + +Obligations contracted by mere consent are exemplified by +sale, hire, partnership and agency, which are called consensual +contracts because no writing, nor the presence of the parties, +nor any delivery is required to make the obligation actionable, +but the consent of the parties is sufficient. Parties who are +not present together, therefore, can form these contracts by +letter, for instance, or by messenger: and they are in their +nature bilateral, that is, both parties incur a reciprocal ob- +ligation to perform whatever is just and fair, whereas verbal +contracts are unilateral, one party being promisee, and the +other alone promisor. + +TITLE XXIII +OF PURCHASE AND SALE + +The contract of purchase and sale is complete immediately +the price is agreed upon, and even before the price or as +much as any earnest is paid: for earnest is merely evidence +of the completion of the contract. In respect of sales unat- +tested by any written evidence this is a reasonable rule, and +so far as they are concerned we have made no innovations. +By one of our constitutions, however, we have enacted, that +no sale effected by an agreement in writing shall be good or +binding, unless that agreement is written by the contracting +parties themselves, or, if written by some one else, is at least +signed by them, or finally, if written by a notary, is duly +drawn by him and executed by the parties. So long as any +of these requirements is unsatisfied, there is room to retract, +and either purchaser or vendor may withdraw from the +agreement with impunity -- provided, that is to say, that no +earnest has been given. Where earnest has been given, and +either party refuses to perform the contract, that party, whether +the agreement be in writing or not, if purchaser forfeits what +he has given, and if vendor is compelled to restore double of +what he has received, even though there has been no express +agreement in the matter of earnest. 1 It is necessary that the +price should be settled, for without a price there can be no +purchase and sale, and it ought to be a fixed and certain price. +For instance, where the parties agreed that the thing should be +sold at a price to be subsequently fixed by Titius, the older +jurists doubted much whether this was a valid contract of sale +or not. The doubt has been settled in the following way by +our decision; if the third person named actually fixes the price, +it must certainly be paid, as settled by him, and the thing must +be delivered, in order to give effect to the sale; the purchaser +(if not fairly treated) suing by the action on purchase, and the +vendor by the action on sale. But if the third person named +will not or cannot fix the price, the sale will be void, because +no price has been settled. This rule, which we have adopted +with regard to sales, may reasonably be extended also to +contracts of hire. 2 The price, too, should be in money; for +it used to be much disputed whether anything else, such as a +slave, a piece of land, or a robe, could be treated as a price. +Sabinus and Cassius held the affirmative, explaining thus the +common theory that exchange is a species, and the oldest +species, of purchase and sale; and in their support they quoted +the lines of Homer, who says in a certain passage that the army +of the Greeks procured themselves wine by giving other things + in exchange, the actual words being as follow: ‘then the long- +haired Greeks bought themselves wine, some with bronze, +some with shining iron, some with hides, some with live oxen, +some with slaves.’ The other school maintained the negative, +and distinguished between exchange on the one hand, and +purchase and sale on the other: for if an exchange were the +same thing as a sale, it would be impossible to determine +which is the thing sold, and which is the price, and both things +cannot be regarded in each of these characters. The opinion, +however, of Proculus, who affirmed that exchange was a +species of contract apart by itself, and distinct from sale, has +deservedly prevailed, as it is confirmed by other lines from +Homer, and by still more cogent reasons, and this has been +admitted by preceding Emperors, and is fully stated in our +Digest. 3 As soon as the contract of sale is concluded -- +that is, as we have said, as soon as the price is agreed upon, +if the contract is not in writing -- the thing sold is immediately +at the risk of the purchaser, even though it has not yet been +delivered to him. Accordingly, if a slave dies, or is injured in +any part of his body, or if a house is either totally or partially +burnt down, or if a piece of land is wholly or partially swept +away by a river flood, or is reduced in acreage by an inund- +ation, or made of less value by a storm blowing down some +of its trees, the loss falls on the purchaser, who must pay the +price even though he has not got what he purchased. The +vendor is not responsible and does not suffer for anything not +due to any design or fault of his own. If, however, after the +purchase of a piece of land, it receives an increase by alluvion, +it is the purchaser who profits thereby: for the profit ought to +belong to him who also bears the risk. And if a slave who +has been sold runs away, or is stolen, without any design or +fault of the vendor, one should look to see whether the latter +expressly undertook to keep him safely until delivery was +made; for, if he did this, the loss falls upon him, though other- +wise he incurs no liability: and this is a rule which applies to +all animals and other objects whatsoever. The vendor, how- +ever, will be bound to transfer to the purchaser all his rights +of action for the recovery of the object or damages, for, +not having yet delivered it to the purchaser, he still remains +its owner, and the same holds good of the penal actions on +theft and on unlawful damage. 4 A sale may be made con- +ditionally as well as absolutely. The following is an example +of a conditional sale: ‘If Stichus meets with your approval +within a certain time, he shall be purchased by you for so +many aurei.’ 5 If a man buys a piece of land which is sacred, +religious, or public, such as a forum or basilica, knowing it +to be such, the purchase is void. But if the vendor has +fraudulently induced him to believe that what he was buying +was not sacred, or was private property, as he cannot +legally have what he contracted for, he can bring the action +on purchase to recover damages for what he has lost by the +fraud; and the same rule applies to the purchase of a free +man represented by the vendor to be a slave. + +TITLE XXIV +OF LETTING AND HIRING + +The contract of hire resembles very closely the contract of +sale, and the same rules of law apply to both. Thus, as the +contract of sale is concluded as soon as the price is agreed +upon, so the contract of hire is held to be concluded as soon +as the sum to be paid for the hiring is settled, and from that +moment the letter has an action on the letting, and the hirer +on the hiring. 1 What we have said above as to a sale in +which the price is left to be fixed by a third person must be +understood to apply also to a contract of hire in which the +amount to be paid for hire is left to be fixed in the same way. +Consequently, if a man gives clothes to a fuller to clean or +finish, or to a tailor to mend, and the amount of hire is not +fixed at the time, but left to subsequent agreement between +the parties, a contract of hire cannot properly be said to +have been concluded, but an action is given on the circum- +stances, as amounting to an innominate contract. 2 Again, +a question often arose in connexion with the contract of +hire similar to that which was so common, namely, whether +an exchange was a sale. For instance, what is the nature +of the transaction if a man gives you the use or enjoyment +of a thing, and receives in return the use or enjoyment of +another thing from you? It is now settled that this is not a +contract of hire, but a kind of contract apart by itself. Thus, +if a man had one ox, and his neighbour another, and they +agreed that each should in turn lend the other his ox for ten +days to make use of, and then one of the oxen died while +working for the man to whom it did not belong, an action +cannot be brought on hire, nor on a loan for use, for a +loan for use ought to be gratuitous: but an action should be +brought as on an innominate contract. 3 So nearly akin, +indeed, is purchase and sale, to letting and hiring, that in +some cases it is a question to which class of the two a +contract belongs. As an instance may be taken those lands +which are delivered over to be enjoyed for ever, upon the +terms, that is to say, that so long as the rent is paid to the +owner it shall not be lawful for the latter to take the lands +away from either the original hirer, or his heir, or any one +else to whom he or his heirs has conveyed them by sale, +gift, dowry, or in any other way whatsoever. The question- +ings of the earlier lawyers, some of whom thought this kind +of contract a hiring, and others a sale, occasioned the +enactment of the statute of Zeno, which determined that +this contract of emphyteusis, as it is called, was of a +peculiar nature, and should not be included under either +hire or sale, but should rest on the terms of the agreement +in each particular case: so that if anything were agreed +upon between the parties, this should bind them exactly as +if it were inherent in the very nature of the contract; while if +they did not agree expressly at whose risk the land should be, +it should be at that of the owner in case of total destruction, +and at that of the tenant, if the injury were merely partial. And +these rules we have adopted in our legislation. 4 Again, if a +goldsmith agrees to make Titius rings of a certain weight and +pattern out of his own gold for, say, ten aurei, it is a question +whether the contract is purchase and sale or letting and hiring. +Cassius says the material is bought and sold, the labour let and +hired; but it is now settled that there is only a purchase and +sale. But if Titius provided the gold, and agreed to pay him +for his work, the contract is clearly a letting and hiring. + +5 The hirer ought to observe all the terms of the contract, and +in the absence of express agreement his obligations should be +ascertained by reference to what is fair and equitable. Where +a man has either given or promised for hire for the use of clothes, +silver, or a beast of burden, he is required in his charge of it +to show as much care as the most diligent father of a family +shows in his own affairs; if he do this, and still accidentally lose +it, he will be under no obligation to restore either it or its value. +6 If the hirer dies before the time fixed for the termination of +the contract has elapsed, his heir succeeds to his rights and +obligations in respect thereof. + +TITLE XXV +OF PARTNERSHIP + +A partnership either extends to all the goods of the partners, +when the Greeks call it by the special name of ‘koinopraxia,’ +or is confined to a single sort of business, such as the purchase +and sale of slaves, oil, wine, or grain. 1 If no express agree- +ment has been made as to the division of the profit and loss, +an equal division of both is understood to be intended, but +if it has, such agreement ought to be carried into effect; and +there has never been any doubt as to the validity of a contract +between two partners that one shall take two-thirds of the +profit and bear two-thirds of the loss, and that the remaining +third shall be taken and borne respectively by the other. +2 If Titius and Seius agreed that the former should take two- +thirds of the profits, and bear only one-third of the loss, and +that the latter should bear two-thirds of the loss, and take +only one-third of the profits, it has been made a question +whether such an agreement ought to be held valid. Quintus +Mucius thought such an arrangement contrary to the very +nature of partnership, and therefore not to be supported: +but Servius Sulpicius, whose opinion has prevailed, was of +a different view, because the services of a particular partner +are often so valuable that it is only just to admit him to the +business on more favourable terms than the rest. It is certain +that a partnership may be formed on the terms that one partner +shall contribute all the capital, and that the profits shall be +divided equally, for a man’s services are often equivalent to +capital. Indeed, the opinion of Quintus Mucius is now so +generally rejected, that it is admitted to be a valid contract +that a partner shall take a share of the profits, and bear no +share in the loss, which indeed Servius, consistently with his +opinion, maintained himself. This of course must be taken to +mean that if there is a profit on one transaction, and a loss on +another, a balance should be struck, and only the net profit +be considered as profits. 3 It is quite clear that if the shares +are expressed in one event only, as for instance in the event +of profit, but not in the event of loss, or vice versa, the same +proportions must be observed, in the event of which no +mention has been made, as in the other. 4 The continuance +of partnership depends on the continuing consent of the +members; it is dissolved by notice of withdrawal from any +one of them. But of course if the object of a partner in with- +drawing from the partnership is to fraudulently keep for +himself some accruing gain -- for instance, if a partner in all +goods succeeds to an inheritance, and withdraws from the +partnership in order to have exclusive possession thereof -- +he will be compelled to divide this gain with his partners; +but what he gains undesignedly after withdrawing he keeps +to himself, and his partner always has the exclusive benefit +of whatever accrues to him after such withdrawal. 5 Again, +a partnership is dissolved by the death of a partner, for +when a man enters into a contract of partnership, he selects +as his partner a definite person. Accordingly, a partnership +based on the agreement of even several persons is dissolved +by the death of one of them, even though several others sur- +vive, unless when the contract was made it was otherwise +agreed. 6 So too a partnership formed for the attainment of +some particular object is terminated when that object is +attained. 7 It is clear too that a partnership is dissolved by +the forfeiture of the property of one of the partners, for such +an one, as he is replaced by a successor, is reckoned civilly +dead. 8 So again, if one of the partners is in such embarrassed +circumstances as to surrender all his property to his creditors, +and all that he possessed is sold to satisfy the public or private +claims upon him, the partnership is dissolved, though if the +members still agree to be partners, a new partnership would +seem to have begun. 9 It has been doubted whether one +partner is answerable to another on the action of partnership +for any wrong less than fraud, like the bailee in a deposit, or +whether he is not suable also for carelessness, that is to say, +for inattention and negligence; but the latter opinion has now +prevailed, with this limitation, that a partner cannot be required +to satisfy the highest standard of carefulness, provided that in +partnership business he shows as much diligence as he does +in his own private affairs: the reason for this being that if a +man chooses as his partner a careless person, he has no one +to blame but himself. + +TITLE XXVI +OF AGENCY + +Of the contract of agency there are five modes. A man gives +you a commission either for his own exclusive benefit, or for +his own and yours together, or for that of some third person, +or for his own and the third person’s, or for the third person’s +and yours. A commission given simply for the sake of the +agent gives rise in reality to no relation of agency, and accord- +ingly no obligation comes into existence, and therefore no +action. 1 A commission is given solely for the benefit of the +principal when, for instance, the latter instructs you to manage +his business, to buy him a piece of land, or to enter into a +stipulation as surety for him. 2 It is given for your benefit +and for that of your principal together when he, for instance, +commissions you to lend money at interest to a person who +borrows it for your principal’s benefit; or where, on your +wishing to sue him as surety for some one else, he commis- +sions you to sue his principal, himself undertaking all risk: or +where, at his risk, you stipulate for payment from a person +whom he substitutes for himself as your debtor. 3 It is given +for the benefit of a third person when, for instance, some one +commissions you to look after Titius’s affairs as general agent, +or to buy Titius a piece of land, or to go surety for him. 4 It +is for the benefit of the principal and a third person when, for +instance, some one instructs you to look after affairs common +to himself and Titius, or to buy an estate for himself and +Titius, or to go surety for them jointly. 5 It is for the benefit +of yourself and a third person when, for instance, some one +instructs you to lend money at interest to Titius; if it were to +lend money free of interest, it would be for the benefit of +the third person only. 6 It is for your benefit alone if, for +instance, some one commissions you to invest your money +in the purchase of land rather than to lend it at interest, or +vice versa. But such a commission is not really so much a +commission in the eye of the law as a mere piece of advice, +and consequently will not give rise to an obligation, for the law +holds no one responsible as on agency for mere advice given, +even if it turns out ill for the person advised, for every one can +find out for himself whether what he is advised to do is likely +to turn out well or ill. Consequently, if you have money lying +idle in your cash-box, and on so and so’s advice buy some- +thing with it, or put it out at interest, you cannot sue that person +by the action on agency although your purchase or loan turns +out a bad speculation; and it has even been questioned, on +this principle, whether a man is suable on agency who com- +missions you to lend money to Titius; but the prevalent opinion +is that of Sabinus, that so specific a recommendation is sufficient +to support an action, because (without it) you would never +have lent your money to Titius at all. 7 So too instructions to +commit an unlawful or immoral act do not create a legal +obligation -- as if Titius were to instigate you to steal, or to +do an injury to the property or person of some one else; and +even if you act on his instructions, and have to pay a penalty +in consequence, you cannot recover its amount from Titius. + +8 An agent ought not to exceed the terms of his commission. +Thus, if some one commissions you to purchase an estate for +him, but not to exceed the price of a hundred aurei, or to go +surety for Titius up to that amount, you ought not in either +transaction to exceed the sum specified: for otherwise you +will not be able to sue him on the agency. Sabinus and Cassius +even thought that in such a case you could not successfully +sue him even for a hundred aurei, though the leaders of the +opposite school differed from them, and the latter opinion is +undoubtedly less harsh. If you buy the estate for less, you +will have a right of action against him, for a direction to buy +an estate for a hundred aurei is regarded as an implied direction +to buy, if possible, for a smaller sum. + +9 The authority given to an agent duly constituted can be +annulled by revocation before he commences to act upon it. +10 Similarly, the death of either the principal or the agent +before the latter commences to act extinguishes the agent’s +authority; but equity has so far modified this rule that if, after +the death of a principal and without having notice of his +decease, an agent executes his commission, he can sue on +the agency: for otherwise the law would be penalizing a +reasonable and unavoidable ignorance. Similar to this is the +rule, that debtors who pay a manumitted steward, say, of +Titius, without notice of his manumission, are discharged +from liability, though by the strict letter of the law they are +not discharged, because they have not paid the person whom +they were bound to pay. 11 It is open to every one to decline +a commission of agency, but acceptance must be followed +by execution, or by a prompt resignation, in order to enable +the principal to carry out his purpose either personally or by +the appointment of another agent. Unless the resignation is +made in such time that the principal can attain his object +without suffering any prejudice, an action will lie at his suit, +in default of proof by the agent that he could not resign +before, or that his resignation, though inconvenient, was +justifiable. + +12 A commission of agency may be made to take effect +from a specified future day, or may be subject to a condition. +13 Finally, it should be observed that unless the agent’s +services are gratuitous, the relation between him and the +principal will not be agency proper, but some other kind of +contract; for if a remuneration is fixed, the contract is one +of hiring. And generally we may say that in all cases where, +supposing a man’s services are gratuitous, there would be a +contract of agency or deposit, there is held to be a contract +of hiring if remuneration is agreed upon; consequently, if you +give clothes to a fuller to clean or to finish, or to a tailor to +mend, without agreeing upon or promising any remuneration, +you can be sued by the action on agency. + +TITLE XXVII +OF QUASI-CONTRACTUAL OBLIGATION + +Having enumerated the different kinds of contracts, let us +now examine those obligations also which do not originate, +properly speaking, in contract, but which, as they do not arise +from a delict, seem to be quasi-contractual. 1 Thus, if one +man has managed the business of another during the latter’s +absence, each can sue the other by the action on uncom- +missioned agency; the direct action being available to him +whose business was managed, the contrary action to him who +managed it. It is clear that these actions cannot properly be +said to originate in a contract, for their peculiarity is that they +lie only where one man has come forward and managed the +business of another without having received any commission +so to do, and that other is thereby laid under a legal obliga- +tion even though he knows nothing of what has taken place. +The reason of this is the general convenience; otherwise people +might be summoned away by some sudden event of pressing +importance, and without commissioning any one to look after +and manage their affairs, the result of which would be that +during their absence those affairs would be entirely neglected: +and of course no one would be likely to attend to them if he +were to have no action for the recovery of any outlay he might +have incurred in so doing. Conversely, as the uncommissioned +agent, if his management is good, lays his principal under a +legal obligation, so too he is himself answerable to the latter +for an account of his management; and herein he must show +that he has satisfied the highest standard of carefulness, for to +have displayed such carefulness as he is wont to exercise in +his own affairs is not enough, if only a more diligent person +could have managed the business better. 2 Guardians, again, +who can be sued by the action on guardianship, cannot pro- +perly be said to be bound by contract, for there is no contract +between guardian and ward: but their obligation, as it cer- +tainly does not originate in delict, may be said to be quasi- +contractual. In this case too each party has a remedy against +the other: not only can the ward sue the guardian directly +on the guardianship, but the guardian can also sue the ward by +the contrary action of the same name, if he has either incurred +any outlay in managing the ward’s property, or bound him- +self on his behalf, or pledged his own property as security for +the ward’s creditors. 3 Again, where persons own property +jointly without being partners, by having, for instance, a joint +bequest or gift made to them, and one of them is liable to be +sued by the other in a partition suit because he alone has +taken its fruits, or because the plaintiff has laid out money +on it in necessary expenses: here the defendant cannot pro- +perly be said to be bound by contract, for there has been no +contract made between the parties; but as his obligation is not +based on delict, it may be said to be quasi-contractual. 4 The +case is exactly the same between joint heirs, one of whom +is liable to be sued by the other on one of these grounds in an +action for partition of the inheritance. 5 So, too, the obliga- +tion of an heir to discharge legacies cannot properly be called +contractual, for it cannot be said that the legatee has con- +tracted at all with either the heir or the testator: yet, as the +heir is not bound by a delict, his obligation would seem to +be quasi-contractual. 6 Again, a person to whom money not +owed is paid by mistake is thereby laid under a quasi-con- +tractual obligation; an obligation, indeed, which is so far +from being contractual, that, logically, it may be said to arise +from the extinction rather than from the formation of a con- +tract; for when a man pays over money, intending thereby to +discharge a debt, his purpose is clearly to loose a bond by +which he is already bound, not to bind himself by a fresh one. +Still, the person to whom money is thus paid is laid under an +obligation exactly as if he had taken a loan for consumption, +and therefore he is liable to a condiction. 7 Under certain +circumstances money which is not owed, and which is paid by +mistake, is not recoverable; the rule of the older lawyers on +this point being that wherever a defendant’s denial of his +obligation is punished by duplication of the damages to be +recovered -- as in actions under the lex Aquilia, and for the +recovery of a legacy -- he cannot get the money back on this +plea. The older lawyers, however, applied this rule only to +such legacies of specific sums of money as were given by +condemnation; but by our constitution, by which we have +assimilated legacies and trust bequests, we have made this +duplication of damages on denial an incident of all actions for +their recovery, provided the legatee or beneficiary is a church, +or other holy place honoured for its devotion to religion and +piety. Such legacies, although paid when not due, cannot be +reclaimed. + +TITLE XXVIII +OF PERSONS THROUGH WHOM WE +CAN ACQUIRE OBLIGATIONS + +Having thus gone through the classes of contractual and +quasi-contractual obligations, we must remark that rights can +be acquired by you not only on your own contracts, but also +on those of persons in your power -- that is to say, your slaves +and children. What is acquired by the contracts of your +slaves becomes wholly yours; but the acquisitions of children +in your power by obligations must be divided on the principle +of ownership and usufruct laid down in our constitution: that +is to say, of the material results of an action brought on an +obligation made in favour of a son the father shall have the +usufruct, though the ownership is reserved to the son himself: +provided, of course, that the action is brought by the father, in +accordance with the distinction drawn in our recent constitu- +tion. 1 Freemen also, and the slaves of another person, acquire +for you if you possess them in good faith, but only in two +cases, namely, when they acquire by their own labour, or in +dealing with your property. 2 A usufructuary or usuary slave +acquires under the same conditions for him who has the usu- +fruct or use. 3 It is settled law that a slave jointly owned +acquires for all his owners in the proportion of their property +in him, unless he names one exclusively in a stipulation, or in +the delivery of property to himself, in which case he acquires +for him alone; as in the stipulation ‘do you promise to convey +to Titius, my master?’ If it was by the direction of one of +his joint owners only that he entered into a stipulation, the +effect was formerly doubted; but now it has been settled by +our decision that (as is said above) under such circumstances +he acquires for him only who gave him the order. + +TITLE XXIX +OF THE MODES IN WHICH OBLIGATIONS +ARE DISCHARGED + +An obligation is always extinguished by performance of +what is owed, or by performance of something else with the +creditor’s assent. It is immaterial from whom the perform- +ance proceeds -- be it the debtor himself, or some one else on +his behalf: for on performance by a third person the debtor is +released, whether he knows of it or not, and even when it is +against his will. Performance by the debtor releases, besides +himself, his sureties, and conversely performance by a surety +releases, besides himself, the principal debtor. 1 Acceptilation +is another mode of extinguishing an obligation, and is, in its +nature, an acknowledgement of a fictitious performance. For +instance, if something is due to Titius under a verbal contract, +and he wishes to release it, it can be done by his allowing the +debtor to ask ‘that which I promised thee has thou received?’ +and by his replying ‘I have received it.’ An acceptilation can +be made in Greek, provided the form corresponds to that of +the Latin words, as ‘exeis labon denaria tosa; exo labon.’ This +process, as we said, discharges only obligations which arise +from verbal contract, and no others, for it seemed only natural +that where words can bind words may also loose: but a debt +due from any other cause may be transformed into a debt by +stipulation, and then released by an imaginary verbal payment +or acceptilation. So, too, as a debt can be lawfully discharged +in part, so acceptilation may be made of part only. 2 A stipula- +tion has been invented, commonly called Aquilian, by which +an obligation of any kind whatsoever can be clothed in stipu- +lation form, and then extinguished by acceptilation; for by +this process any kind of obligation may be novated. Its +terms, as settled by Gallus Aquilius, are as follow: ‘Whatever, +and on whatsoever ground, you are or shall be compellable to +convey to or do for me, either now or on a future specified day, +and for whatsoever I have or shall have against you an action +personal or real, or any extraordinary remedy, and whatsoever +of mine you hold or possess naturally or civilly, or would +possess, or now fail to possess through some wilful fault of +your own -- as the value of each and all of these claims Aulua +Agerius stipulated for the payment of such and such a sum, +and payment was formally promised by Numerius Negidius.’ +Then conversely, Numerius Negidius asked Aulus Agerius, +‘hast thou received the whole of what I have to-day engaged, +by the Aquilian stipulation, to pay thee?’ to which Aulus +Agerius replied ‘I have it, and account it received.’ 3 Novation +is another mode of extinguishing an obligation, and takes +place when you owe Seius a sum, and he stipulates for pay- +ment thereof from Titius; for the intervention of a new person +gives birth to a new obligation, and the first obligation is +transformed into the second, and ceases to exist. Sometimes +indeed the first stipulation is avoided by novation even though +the second is of no effect: for instance, if you owe Titius a sum, +and he stipulates for payment thereof from a pupil without +his guardian’s authority, he loses his claim altogether, for you, +the original debtor, are discharged, and the second obligation +is unenforceable. The same does not hold if one stipulate +from a slave; for then the former debtor continues bound as +fully as if one had stipulated from no one. But when the +original debtor is the promisor, a second stipulation produces +a novation only if it contains something new -- if a condition, +for instance, or a term, or a surety be added, or taken away -- +though, supposing the addition of a condition, we must be +understood to mean that a novation is produced only if the +condition is accomplished: if it fails, the prior obligation con- +tinues in force. Among the older lawyers it was an established +rule, that a novation was effected only when it was with that +intention that the parties entered into the second obligation; +but as this still left it doubtful when the intention was present +and when absent, various presumptions were established as +to the matter by different persons in different cases. We +therefore issued our constitution, enacting most clearly that +no novation shall take place unless the contracting parties +expressly state their intention to be the extinction of the prior +obligation, and that in default of such statement, the first +obligation shall subsist, and have the second also added to it: +the result being two obligations resting each on its own inde- +pendent ground, as is prescribed by the constitution, and as +can be more fully ascertained by perusing the same. 4 More- +over, those obligations which are contracted by consent alone +are dissolved by a contrary agreement. For instance, if Titius +and Seius agree that the latter shall buy an estate at Tusculum +for a hundred aurei, and then before execution on either side +by payment of the price or delivery of the estate they arrange +to abandon the sale, they are both released. The case is the +same with hire and the other contracts which are formed by +consent alone. + + +* BOOK IV * + +TITLE I +OF OBLIGATIONS ARISING FROM DELICT + +Having treated in the preceding Book of contractual and +quasi-contractual obligations, it remains to inquire into obliga- +tions arising from delict. The former, as we remarked in the +proper place, are divided into four kinds; but of these latter +there is but one kind, for, like obligations arising from real +contracts, they all originate in some act, that is to say, in the +delict itself, such as a theft, a robbery, wrongful damage, or +an injury. + +1 Theft is a fraudulent dealing with property, either in itself, +or in its use, or in its possession: an offence which is prohibited +by natural law. 2 The term furtum, or theft, is derived either +from furvum, meaning ‘black,’ because it is effected secretly +and under cover, and usually by night: or from fraus, or from +ferre, meaning ‘carrying off’; or from the Greek word phor, +thief, which indeed is itself derived from pherein, to carry off. +3 There are two kinds of theft, theft detected in the commission, +and simple theft: the possession of stolen goods discovered +upon search, and the introduction of stolen goods, are not (as +will appear below) so much specific kinds of theft as actionable +circumstances connected with theft. A thief detected in the +commission is termed by the Greeks ep’autophoro; in this +kind is included not only he who is actually caught in the act of +theft, but also he who is detected in the place where the theft +is committed; for instance, one who steals from a house, and +is caught before he has got outside the door; or who steals +olives from an olive garden, or grapes from a vineyard, and is +caught while still in the olive garden or vineyard. And the +definition of theft detected in the commission must be even +further extended, so as to include the thief who is caught or +even seen with the stolen goods still in his hands, whether the +place be public or private, and whether the person who sees +or catches him be the owner of the property, or some third +person, provided he has not yet escaped to the place where he +intended to take and deposit his booty: for if he once escapes +there, it is not theft detected in the commission, even if he be +found with the stolen goods upon him. What is simple theft +is clear from what has been said: that is to say, it is all theft +which is not detected in the commission. 4 The offence of dis- +covery of stolen goods occurs when a person’s premises are +searched in the presence of witnesses, and the stolen property +is found thereon; this makes him liable, even though innocent +of theft, to a special action for receiving stolen goods. To in- +troduce stolen goods is to pass them off to a man, on whose +premises they are discovered, provided this be done with the +intent that they shall be discovered on his premises rather than +on those of the introducer. The man on whose premises they +are found may sue the latter, though innocent of theft, in an +action for the introduction of stolen goods. There is also an +action for refusal of search, available against him who prevents +another who wishes to look in the presence of witnesses for +stolen property; and finally, by the action for non-production +of stolen goods, a penalty is imposed by the praetor’s edict +on him who has failed to produce stolen property which is +searched for and found on his premises. But the last-named +actions, namely, those for receiving stolen goods, for intro- +ducing them, for refusal of search, and for non-production, +have now become obsolete: for the search for such property +is no longer made in the old fashion, and accordingly these +actions went out of use also. It is obvious, however, that +any one who knowingly receives and hides stolen property +may be sued by the action for simple theft. 5 The penalty for +theft detected in the commission is four times the value, and +for simple theft twice the value, of the property stolen, +whether the thief be a slave or a free person. + +6 Theft is not confined to carrying away the property of +another with the intent of appropriation, but comprises also all +corporeal dealing with the property of another against the will +of the owner. Thus, for a pawnee to use the thing which he +has in pawn, or to use a thing committed to one’s keeping as +a deposit, or to put a thing which is lent for use to a different +use than that for which it was lent, is theft; to borrow plate, +for instance, on the representation that the borrower is going +to entertain his friends, and then to carry it away into the +country: or to borrow a horse for a drive, and then to take it +out of the neighbourhood, or like the man in the old story, to +take it into battle. 7 With regard, however, to those persons +who put a thing lent for use to a different purpose than the +lender contemplated, the rule is that they are guilty of theft +only if they know it to be contrary to the will of the owner, +and that if he had notice he would refuse permission; but if +they believe that he would give permission, it is not theft: +and the distinction is just, for there is no theft without un- +lawful intention. 8 It is also said not to be theft if a man turns +a thing lent for use to a use other than he believes its owner +would sanction, though in point of fact its owner is consenting. +Whence arose the following question: if Antoninus solicits the +slave of Peri to steal property of the latter, and convey it to +him, and the slave informs Peri of it, who, wishing to detect +Antoninus in the very act, allows the slave to convey the prop- +erty to him; can an action of theft, or for corrupting the slave, +or neither, be maintained against Antoninus? The case was +submitted to us, and we examined the conflicting opinions of +the earlier jurists on the matter: some of whom thought that +neither action lay, and others, that Peri might sue on theft +only. But we, in order to put an end to such quibbles, have +enacted by our decision that in such case both the action +on theft and that for corrupting a slave shall lie. It is true +that the slave has not been corrupted by the advances made +to him, so that the case does not come within the rules which +introduced the action for such corruption: yet the would-be +corrupter’s intention was to make him dishonest, so that he is +liable to a penal action, exactly as if the slave had actually +been corrupted, lest his immunity from punishment should +encourage others to perpetrate a similar wrong on a slave +less strong to resist temptation. 9 A free man too may be +the subject of a theft -- for instance, a child in my power, if +secretly removed from my control. 10 So too a man some- +times steals his own property -- for instance, a debtor who +purloins the goods which he has pledged to a creditor. + +11 Theft may be chargeable on a person who is not the +perpetrator; on him, namely, by whose aid and abetment +a theft is committed. Among such persons we may mention +the man who knocks money out of your hand for another to +pick up, or who stands in your way that another may snatch +something from you, or scatters your sheep or your oxen, that +another may steal them, like the man in the old books, who +waved a red cloth to frighten a herd. If the same thing were +done as a frolic, without the intention of assisting a theft, the +proper action is not theft, but on the case. Where, however, +Titius commits theft with the aid of Maevius, both are liable +to an action on theft. A man, too, is held to have aided and +abetted a theft who places a ladder under a window, or breaks +open a window or a door, in order that another may steal, +or who lends tools for the breaking of them open, or a ladder +to place under a window, if he knows the object for which +they are borrowed. It is clear that a man is not liable on +theft, who, though he advises and instigates an offence, does +not actually aid in its commission. 12 If a child in power, or +a slave, steal property of his father or master, it is theft, and +the property is deemed stolen, so that no one can acquire it +by usucapion until it has returned into the hands of the owner; +but no action will lie on the theft, because between a son in +power and his father, or between a slave and his master, no +action will lie on any ground whatsoever. But if the offender +is aided and abetted by a third person, the latter is liable to +an action on theft, because a theft has in fact been committed, +and by his aid and abetment. + +13 The action on theft will lie at the suit of any person +interested in the security of the property, even though he +be not its owner: indeed, even the owner cannot maintain +the action unless he suffers damage from the loss. 14 Hence, +when a pawn is stolen the pawnee can sue, even though his +debtor be perfectly able to pay the debt; for it is more advan- +tageous to him to rely on the pledge, than to bring a personal +action: and this rule is so unbending that even the pawnor +who steals a pawn is suable for theft by the pawnee. 15 So, +if clothes are delivered to be cleaned or finished or mended +for a certain remuneration, and then are stolen, it is the fuller +or tailor who can sue on the theft, and not the owner; for the +owner suffers nothing by the loss, having the action of letting +against the fuller or tailor for the recovery of his property. +Similarly a purchaser in good faith, even though a good title +as owner is not given to him, can bring the action of theft +if the property is stolen, exactly like the pawnee. The action +is, however, not maintainable at the suit of a fuller or tailor, +unless he is solvent, that is to say, unless he is able to fully +indemnify the owner; if he is insolvent, the owner cannot +recover from him, and so can maintain an action against the +thief, being, on this hypothesis, interested in the recovery +of the property. Where the fuller or tailor is only partly +instead of wholly solvent the rule is the same. 16 The older +lawyers held that what has been said of the fuller and tailor +applied also to the borrower for use, on the ground that as +the remuneration which the fuller receives makes him re- +sponsible for custody, so the advantages which the borrower +derives from the use requires him to keep it safely at his +peril. Our wisdom, however, has amended the law in this +particular in our decisions, by allowing the owner the option +of suing either the borrower by action on the loan, or the +thief by action of theft; though when his choice has been +determined he cannot change his mind, and resort to the +other action. If he prefers to sue the thief, the borrower is +absolutely released from liability; but if he proceeds against +the borrower, he cannot in any way himself sue the thief on +the stealing, though this may be done by the borrower, who +is defendant in the other action, provided that the owner +knew, at the time when he began his action against the +borrower, that the thing had been stolen. If he is ignorant +of this, or even if he is merely doubtful whether the borrower +still has the property in his possession or not, and sues him +on the loan, he may, on subsequently learning the facts, and if +he wishes to drop the action which he has commenced, and +sue the thief instead, adopt this course, in which case no ob- +stacle is to be thrown in his way, because it was in ignorance +that he took action and sued the borrower on the loan. If, +however, the owner has been indemnified by the borrower, +in no case can he bring the action of theft against the thief, as +his rights of action pass to the person who has compensated +him for the loss of his property. Conversely it is clear, that +if, at the outset, the owner began an action on the loan against +the borrower, not knowing that the property had been stolen, +and subsequently, on learning this, proceeded against the thief +instead, the borrower is absolutely released from liability, +whatever may be the result of the owner’s action against the +thief; the rule being the same, whether the borrower be wholly +or only partially insolvent. 17 As a depositary is not answerable +for the safe keeping of the thing deposited, but only for fraud, +and, if it is stolen, is not compellable to make restitution by +action of deposit, he has no interest if it is lost, and therefore +the action of theft is maintainable only by the depositor. 18 +Finally, it has been a question whether a child below the age of +puberty, who carries away the property of another, is guilty +of theft. The answer is that, as theft depends on intention, +obligation by theft is not incurred unless the child is near +puberty, and so understands its delinquency. 19 The object +of the action on theft, whether it be for double or quadruple +the value of the goods stolen, is merely the recovery of the +penalty; to recover the goods themselves or their value the +owner has an independent remedy by vindication or condic- +tion. The former is the proper remedy when it is known who +is in possession of the goods, whether this be the thief or any +one else: the latter lies against the thief or his heir, whether +in possession of the stolen property or not. + +TITLE II +OF ROBBERY + +Robbery is chargeable also as theft; for who deals with the +property of another more against that other’s will than the +robber? And thus the description of the robber as an +audacious thief is a good one. However, as a special remedy +for this offence the praetor has introduced the action for +robbery, or rapine with violence, which may be brought within +a year for four times the value, after a year for simple +damages, and while lies even when only a single thing of the +slightest value has been taken with violence. This fourfold +value, however, is not all penalty, nor is there an independent +action for the recovery of the property or its value, as we +observed was the case in the action of theft detected in the +commission; but the thing or its value is included in the four- +fold, so that, in point of fact, the penalty is three times the +value of the property, and this whether the robber be taken in +the act or not; for it would be absurd to treat a robber more +lightly than one who carries off property merely secretly. +1 This action is maintainable only where the robbery is attended +with wrongful intention; consequently, if a man by mistake +thought that property was his own, and, in his ignorance of +law, forcibly carried it off in the belief that it was lawful for an +owner to take away, even by force, a thing belonging to him- +self from a person in whose possession it was, he cannot be +held liable to this action; and similarly on principle he would +not in such a case be suable for theft. Lest, however, robbers, +under the cloak of such a plea, should discover a method of +gratifying a grasping habit with impunity, the law has been +amended upon this point by imperial constitutions, by which +it is enacted that it shall not be lawful for any one to forcibly +carry off movable property, inanimate or animate, even though +he believe it to belong to him; and that whosoever disobeys +this shall forfeit the property, if, in fact, it be his, and if it be +not, shall restore it, and along with it its value in money. And +by the said constitutions it is also declared that this provision +relates not only to movables (of which alone robbery can be +committed), but also to forcible entries on land and houses, +so as to deter men from all violent seizing upon property what- +soever under the cloak of such excuses. 2 In order to support +this action it is not necessary that the goods of which robbery +has been committed should belong to the plaintiff, provided +they were taken from among his property. Thus, if a thing be +let, or lent, or pledged to Titius, or even deposited with him +under such circumstances that he has an interest in its not +being carried off -- for instance, by his having undertaken the +entire responsibility for its safe custody; -- or if he possesses +it in good faith, or has a usufruct or any other right in it where- +by he suffers loss or incurs liability through its being forcibly +taken from him, the action will be maintainable by him; not +necessarily in order to restore to him the ownership, but +only to compensate him for what it is alleged he has lost by +its being taken from his goods or withdrawn from his means. +In fact, it may be said generally that where, supposing +property to be taken secretly, the action of theft will lie, the +action on robbery will lie at suit of the same person, if it be +taken with violence. + +TITLE III +OF THE LEX AQUILIA + +Unlawful damage is actionable under the lex Aquilia, whose +first chapter provides that if a slave of another man, or a quad- +ruped from his flocks or herds, be unlawfully killed, the offender +shall pay to the owner whatever was the highest value thereof +within the year next immediately preceding. 1 From the fact +that this enactment does not speak of quadrupeds simply, but +only of such quadrupeds as are usually included under the +idea of flocks and herds, it is to be inferred that it has no +application to wild animals or to dogs, but only to such beasts +as can properly be said to graze in herds, namely horses, mules, +asses, oxen, sheep, and goats. It is settled, too, that swine +come under its operation, for they are comprehended in ‘herds’ +because they feed in this manner; thus Homer in his Odyssey, +as quote by Aelius Marcianus in his Institutes, says, You will +find him sitting among his swine, and they are feeding by the +Rock of Corax, over against the spring Arethusa.’ 2 To kill +unlawfully is to kill without any right; thus a man who kills +a robber is not liable to this action, if he could in no other way +escape the danger by which he was threatened. 3 So, too, where +one man kills another by misadventure, he is not liable under +this statute, provided there is no fault or carelessness on his +part; otherwise it is different, for under this statute care- +lessness is as punishable as wilful wrong-doing. 4 Accordingly, +if a man, while playing or practising with javelins, runs your +slave through as he passes by, a distinction is drawn. If it be +done by a soldier in his exercising ground, that is to say, +where such practice is usually conducted, he is in no way to +blame; but if it be done by some one else, his carelessness will +make him liable; and so it is with the soldier, if he do it in some +place other than that appropriated to military exercises. 5 +So, too, if a man is trimming a tree, and kills your slave as he +passes by with a bough which he lets fall, he is guilty of +negligence, if it is near a public way, or a private path belong- +ing to a neighbour, and he does not call out to give people +warning; but if he calls out, and the slave takes no pains to +get out of the way, he is not to blame. Nor would such a +man be liable, if he was cutting a tree far away from a road, +or in the middle of a field, even if he did not call out; for +strangers had no business to be there. 6 Again, if a surgeon +operates on your slave, and then neglects altogether to attend +to his cure, so that the slave dies in consequence, he is liable +for his carelessness. 7 Sometimes, too, unskilfulness is undis- +tinguishable from carelessness -- as where a surgeon kills your +slave by operating upon him unskilfully, or by giving him +wrong medicines; 8 and similarly, if your slave is run over by +a team of mules, which the driver has not enough skill to hold, +the latter is suable for carelessness; and the case is the same +if he was simply not strong enough to hold them, provided +they could have been held by a stronger man. The rule also +applies to runaway horses, if the running away is due to the +rider’s deficiency either in skill or strength. 9 The meaning +of the words of the statute ‘whatever was of the highest +value thereof within the year’ is that if any one, for instance, +kills a slave of yours, who at the moment of his death is +lame, or maimed, or blind of one eye, but within the year was +sound and worth a price, the person who kills him is answer- +able not merely for his value at the time of his death, but for +his highest value within the year. It is owing to this that the +action under this statute is deemed to be penal, because a +defendant is sometimes bound to pay a sum not merely +equivalent to the damage he has done, but far in excess of it; +and consequently, the right of suing under the statute does +not pass against the heir, though it would have done so if the +damages awarded had never exceeded the actual loss sus- +tained by the plaintiff. 10 By juristic construction of the statute, +though not so enacted in its terms, it has been settled that +one must not only take account, in the way we have described, +of the value of the body of the slave or animal killed, but +must also consider all other loss which indirectly falls upon +the plaintiff through the killing. For instance, if your slave has +been instituted somebody’s heir, and, before he has by your +order accepted, he is slain, the value of the inheritance you +have missed must be taken into consideration; and so, too, if +one of a pair of mules, or one of four chariot horses, or one of +a company of slave players is killed, account is to be taken +not only of what is killed, but also of the extent to which the +others have been depreciated. 11 The owner whose slave is +killed has the option of suing the wrongdoer for damages in +a private action under the lex Aquilia, or of accusing him on +a capital charge by indictment. + +12 The second chapter of the lex Aquilia is now obsolete; 13 +the third makes provision for all damage which is not covered +by the first. Accordingly, if a slave or some quadruped which +comes within its terms, is wounded, or if a quadruped which +does not come within its terms, such as a dog or wild animal, +is wounded or killed, an action is provided by this chapter; +and if any other animal or inanimate thing is unlawfully +damaged, a remedy is herein afforded; for all burning, break- +ing, and crushing is hereby made actionable, though, indeed, +the single word ‘breaking’ covers all these offences, denoting +as it does every kind of injury, so that not only crushing and +burning, but any cutting, bruising, spilling, destroying, or dete- +riorating is hereby denominated. Finally, it has been decided +that if one man mixes something with another’s win or oil, +so as to spoil its natural goodness, he is liable under this +chapter of the statute. 14 It is obvious that, as a man is liable +under the first chapter only where a slave or quadruped is +killed by express design or through negligence on his part, +so, too, he is answerable for all other damage under this +chapter only where it results from some wilful act or careless- +ness of his. Under this chapter, however, it is not the highest +value which the thing had within a year, but that which it had +within the last thirty days, which is chargeable on the author +of the mischief. 15 It is true that here the statute does not ex- +pressly say ‘the highest value,’ but Sabinus rightly held that +the damages must be assessed as if the words ‘highest value’ +occurred also in this chapter; the Roman people, who enacted +this statute on the proposal of Aquilius the tribune, having +thought it sufficient to use them in the first chapter only. + +16 It is held that a direct action lies under this statute only +when the body of the offender is substantially the instrument +of mischief. If a man occasions loss to another in any other +way, a modified action will usually lie against him; for +instance, if he shuts up another man’s slave or quadruped, +so as to starve him or it to death, or drives his horse so hard +as to knock him to pieces, or drives his cattle over a precipice, +or persuades his slave to climb a tree or go down a well, who, +in climbing the one or going down the other, is killed or +injured in any part of his body, a modified action is in all +these cases given against him. But if a slave is pushed off +a bridge or bank into a river, and there drowned, it is clear +from the facts that the damage is substantially done by the +body of the offender, who is consequently liable directly +under the lex Aquilia. If damage be done, not by the body +or to a body, but in some other form, neither the direct +nor the modified Aquilian action will lie, though it is held +that the wrongdoer is liable to an action on the case; as, for +instance, where a man is moved by pity to loose another’s +slave from his fetters, and so enables him to escape. + +TITLE IV +OF INJURIES + +By injury, in a general sense, is meant anything which is +done without any right. Besides this, it has three special +significations; for sometimes it is used to express outrage, the +proper word for which -- contumely -- is derived from the verb +‘to contemn,’ and so is equivalent to the Greek ‘ubris’: some- +times it means culpable negligence, as where damage is said +to be done (as in the lex Aquilia) ‘with injury,’ where it is +equivalent to the Greek ‘adikema’; and sometimes iniquity and +injustice, which the Greeks express by ‘adikia’; thus a litigant +is said to have received an ‘injury’ when the praetor or judge +delivers an unjust judgement against him. 1 An injury or out- +rage is inflicted not only by striking with the first, a stick, or +a whip, but also by vituperation for the purpose of collecting +a crowd, or by taking possession of a man’s effects on the +ground that he was in one’s debt; or by writing, composing, +or publishing defamatory prose or verse, or contriving the +doing of any of these things by some one else; or by con- +stantly following a matron, or a young boy or girl below the +age of puberty, or attempting anybody’s chastity; and, in a +word, by innumerable other acts. 2 An outrage or injury may +be suffered either in one’s own person, or in the person of a +child in one’s power, or even, as now is generally allowed, in +that of one’s wife. Accordingly, if you commit an ‘outrage’ +on a woman who is married to Titius, you can be sued not +only in her own name, but also in those of her father, if she be +in his power, and of her husband. But if, conversely, it be the +husband who is outraged, the wife cannot sue; for wives should +be protected by their husbands, not husbands by their wives. +Finally, a father-in-law may sue on an outrage committed on +his daughter-in-law, if the son to whom she is married is in +his power. 3 Slaves cannot be outraged themselves, but their +master may be outraged in their person, though not by all the +acts by which an outrage might be offered to him in the +person of a child or wife, but only by aggravated assaults or +such insulting acts as clearly tend to dishonour the master +himself: for instance, by flogging the slave, for which an action +lies; but for mere verbal abuse of a slave, or for striking him +with the fist, the master cannot sue. 4 If an outrage is com- +mitted on a slave owned by two or more persons jointly, the +damages to be paid to these severally should be assessed +with reference not to the shares in which they own him, but to +their rank or position, as it is to the reputation and not to +the property that the injury is done; 5 and if an outrage is +committed on a slave belonging to Maevius, but in whom +Titius has a usufruct, the injury is deemed to be done to the +former rather than to the latter. 6 But if the person outraged is +a free man who believes himself to be your slave, you have no +action unless the object of the outrage was to bring you into +contempt, though he can sue in his own name. The principle +is the same when another man’s slave believes himself to +belong to you; you can sue on an outrage committed on him +only when its object is to bring contempt upon you. + +7 The penalty prescribed for outrage in the Twelve Tables +was, for a limb disabled, retaliation, for a bone merely broken +a pecuniary mulct proportionate to the great poverty of the +age. The praetors, however, subsequently allowed the person +outraged to put his own estimate on the wrong, the judge +having a discretion to condemn the defendant either in the +sum so named by the plaintiff, or in a less amount; and of +these two kinds of penalties that fixed by the Twelve Tables +is now obsolete, while that introduced by the praetors, which +is also called ‘honorary,’ is most usual in the actual practice +of the courts. Thus the pecuniary compensation awarded +for an outrage rises and falls in amount according to the rank +and character of the plaintiff, and this principle is not im- +properly followed even where it is a slave who is outraged; +the penalty where the slave is a steward being different from +what it is when he is an ordinary menial, and different again +when he is condemned to wear fetters. 8 The lex Cornelia +also contains provisions as to outrages, and introduced an +action on outrage, available to a plaintiff who alleges that he +has been struck or beaten, or that a forcible entry has been +made upon his house; the term ‘his house’ including not +only one which belongs to him and in which he lives but also +one which is hired by him, or in which he is received gratui- +tously as a guest. 9 An outrage becomes ‘aggravated’ either +from the atrocious character of the act, as where a man is +wounded or beaten with clubs by another; or from the place +where it is committed, for instance, in the theatre or forum, or +in full sight of the praetor; or from the rank of the person +outraged, -- if it be a magistrate, for instance, or if a senator be +outraged by a person of low condition, or a parent by his +child, or a patron by his freedman; for such an injury done to +a senator, a parent, or a patron has a higher pecuniary com- +pensation awarded for it than one done to a mere stranger, or +to a person of low condition. Sometimes too the position of +the wound makes an outrage aggravated, as where a man +is struck in the eye. Whether the person on whom such an +outrage is inflicted is independent or in the power of another +is almost entirely immaterial, it being considered aggravated +in either case. 10 Finally, it should be observed that a person +who has been outraged always has his option between the +civil remedy and a criminal indictment. If he prefers the +former, the penalty which is imposed depends, as we have +said, on the plaintiff’s own estimate of the wrong he has +suffered; if the latter, it is the judge’s duty to inflict an extra- +ordinary penalty on the offender. It should be remembered, +however, that by a constitution of Zeno persons of illustrious +or still higher rank may bring or defend such criminal actions +on outrage by an agent, provided they comply with the +requirements of the constitution, as may be more clearly as- +certained by a perusal of the same. 11 Liability to an action +on outrages attaches not only to him who commits the act, -- +the striking of a blow, for instance -- but also to those who +maliciously counsel or abet in the commission, as, for in- +stance, to a man who gets another struck in the face. 12 The +right of action on outrage is lost by condonation; thus, if a +man be outraged, and takes no steps to obtain redress, but +at once lets the matter, as it is said, slip out of his mind, he +cannot subsequently alter his intentions, and resuscitate an +affront which he has once allowed to rest. + +TITLE V +OF QUASI-DELICTAL OBLIGATIONS + +The obligation incurred by a judge who delivers an unjust +or partial decision cannot properly be called delictal, and yet +it does not arise from contract; consequently, as he cannot +but be held to have done a wrong, even though it may be +due to ignorance, his liability would seem to be quasi-delictal, +and a pecuniary penalty will be imposed on him at the judge’s +discretion. 1 Another case of quasi-delictal obligation is that +of a person from whose residence, whether it be his own, +or rented, or gratuitously lent him, anything is thrown or +poured out whereby another is injured; the reason why his +liability cannot properly be called delictal being that it is +usually incurred through the fault of some other person, +such as a slave or freedman. Of a similar character is the +obligation of one who keeps something placed or hung +over a public way, which might fall and injure any one. In +this last case the penalty has been fixed at ten aurei; in that +of things thrown or poured out of a dwelling-house the +action is for damages equivalent to double the loss sustained, +though if a free man be thereby killed the penalty is fixed at +fifty aurei, and even if he be merely injured he can sue for +such damages as the judge shall in his discretion award; and +here the latter should take into account the medical and other +expenses of the plaintiff’s illness, as well as the loss which +he has sustained through being disabled from work. 2 If a +son in power lives apart from his father, and anything is +thrown or poured out of his place of residence, or if he has +anything so placed or hung as to be dangerous to the public, +it is the opinion of Julian that no action lies against the father, +but that the son should be made sole defendant; and the +same principle should be applied to a son in power who is +made a judge, and delivers an unjust or partial decision. +3 Similarly ship-owners, inn and stable keepers are liable +as on a quasi-delict for wilful damage or theft committed +in their ships, inns, or stables, provided the act be done by +some or one of their servants there employed, and not by +themselves; for the action which is given in such cases is not +based on contract, and yet as they are in some sense at fault +for employing careless or dishonest servants, their liability +would seem to be quasi-delictal. In such circumstances the +action which is given is on the case, and lies at suit of the +injured person’s heir, though not against the heir of the +ship-owner, inn or stable keeper. + +TITLE VI +OF ACTIONS + +The subject of actions still remains for discussion. An action +is nothing else than the right of suing before a judge for what +is due to one. + +1 The leading division of all actions whatsoever, whether +tried before a judge or a referee, is into two kinds, real and +personal; that is to say, the defendant is either under a con- +tractual or delictal obligation to the plaintiff, in which case +the action is personal, and the plaintiff’s contention is that the +defendant ought to convey something to, or do something +for him, or of a similar nature; or else, though there is no +legal obligation between the parties, the plaintiff asserts a +ground of action against some one else relating to some thing, +in which case the action is real. Thus, a man may be in +possession of some corporeal thing, in which Titius claims a +right of property, and which the possessor affirms belongs to +him; here, if Titius sues for its recovery, the action is real. 2 +It is real also if a man asserts that he has a right of usufruct +over a landed estate or a house, or a right of going or driving +cattle over his neighbour’s land, or of drawing water from the +same; and so too are the actions relating to urban servitudes, +as, for instance, where a man asserts a right to raise his house, +to have an uninterrupted prospect, to project some building +over his neighbour’s land, or to rest the beams of his own +house on his neighbour’s wall. Conversely, there are actions +relating to usufructs, and to rustic and urban servitudes, of +a contrary import, which lie at the suit of plaintiffs who deny +their opponent’s right of usufruct, of going or driving cattle, +of drawing water, of raising their house, or having an unin- +terrupted view, of projecting some building over the plaintiff’s +land, or of resting the beams of their house in the plaintiff’s +wall. These actions too are real, but negative, and never +occur in disputes as to corporeal things, in which the plaintiff +is always the party out of possession; and there is no action +by which the possessor can (as plaintiff) deny that the thing +in question belongs to his adversary, except in one case only, +as to which all requisite information can be gathered from the +fuller books of the Digest. 3 The actions which have hitherto +been mentioned, and others which resemble them, are either +of statutory origin, or at any rate belong to the civil law. +There are other actions, however, both real and personal, +which the praetor has introduced in virtue of his jurisdiction, +and of which it is necessary to give examples. For instance, +he will usually, under the circumstances to be mentioned, +allow a real action to be brought with a fictitious allegation -- +namely, that the plaintiff has acquired a title by usucapion +where this, in fact, is not the case; or, conversely, he will +allow a fictitious plea on the part of the defendant, to the effect +that the plaintiff has not acquired such a title where, in point of +fact, he has. 4 Thus, if possession of some object be delivered +on a ground sufficient to legally transfer the same -- for in- +stance, under a sale or gift, as part of a dowry, or as a legacy +-- and the transferee has not yet acquired a complete title by +usucapion, he has no direct real action for its recovery, if he +accidentally loses possession, because by the civil law a real +action lies at the suit of the owner only. But as it seemed +hard that in such a case there should be no remedy, the +praetor introduced an action in which the plaintiff, who has +lost possession, fictitiously allege that he has acquired a full +title by usucapion, and thus claims the thing as his own. This +is called the Publician action, because it was first placed in +the Edict by a praetor called Publicius. 5 Conversely, if a +person, while absent in the service of the State, or while in the +power of an enemy, acquires by usucapion property belong- +ing to some one resident at home, the latter is allowed, within +a year from the cessation of the possessor’s public employ- +ment, to sue for a recovery of the property by a rescission of +the usucapion: by fictitiously alleging, in other words, that +the defendant has not thus acquired it; and the praetor from +motives of equity allows this kind of action to be brought in +certain other cases, as to which information may be gathered +from the larger work of the Digest or Pandects. 6 Similarly, +if a person conveys away his property in fraud of creditors, +the latter, on obtaining from the governor of the province a +decree vesting in them possession of the debtor’s estate, are +allowed to avoid the conveyance, and sue for the recovery of +the property; in other words, to allege that the conveyance +has never taken place, and that the property consequently +still belongs to the debtor. 7 Again, the Servian and quasi- +Servian actions, the latter of which is also called ‘hypothe- +cary,’ are derived merely from the praetor’s jurisdiction. The +Servian action is that by which a landlord sues for his tenant’s +property, over which he has a right in the nature of mortgage +as security for his rent; the quasi-Servian is a similar remedy, +open to every pledgee or hypothecary creditor. So far then +as this action is concerned, there is no difference between a +pledge and a hypothec: and indeed whenever a debtor and +a creditor agree that certain property of the former shall be +the latter’s security for his debt, the transaction is called a +pledge or a hypothec indifferently. In other points, however, +there is a distinction between them; for the term ‘pledge’ is +properly used only where possession of the property in ques- +tion is delivered to the creditor, especially if that property be +movable: while a hypothec is, strictly speaking, such a right +created by mere agreement without delivery of possession. 8 +Besides these, there are also personal actions which the prae- +tor has introduced in virtue of his jurisdiction, for instance, +that brought to enforce payment of money already owed, and +the action on a banker’s acceptance, which closely resembled +it. By our constitution, however, the first of these actions has +been endowed with all the advantages which belonged to +the second, and the latter, as superfluous, has therefore been +deprived of all force and expunged from our legislation. To +the praetor is due also the action claiming an account of the +peculium of a slave or child in power, that in which the issue +is whether a plaintiff has made oath, and many others. 9 The +action brought to enforce payment of money already owed is +the proper remedy against a person who, by a mere promise, +without stipulation, has engaged to discharge a debt due either +from himself or from some third party. If he has promised by +stipulation, he is liable by the civil law. 10 The action claiming +an account of a peculium is a remedy introduced by the +praetor against a master or a father. By strict law, such +persons incur no liability on the contracts of their slaves or +children in power; yet it is only equitable that damages should +still be recoverable against them to the extent of the peculium, +in which children in power and slaves have a sort of property. +11 Again, if a plaintiff, on being challenged by the defendant, +deposes on oath that the latter owes him the money which +is the object of the action, and payment is not made to him, +the praetor most justly grants to him an action in which the +issue is, not whether the money is owing, but whether the +plaintiff has sworn to the debt. 12 There is also a consider- +able number of penal actions which the praetor has introduced +in the exercise of his jurisdiction; for instance, against those +who in any way injure or deface his album; or who summon +a parent or patron without magisterial sanction; or who +violently rescue persons summoned before himself, or who +compass such a rescue; and others innumerable. 13 ‘Pre- +judicial’ actions would seem to be real, and may be exemp- +lified by those in which it is inquired whether a man is free +born, or has become free by manumission, or in which the +question relates to a child’s paternity. Of these the first +alone belongs to the civil law: the others are derived from +the praetor’s jurisdiction. 14 The kinds of action having been +thus distinguished, it is clear that a plaintiff cannot demand +his property from another in the form ‘if it be proved that +the defendant is bound to convey.’ It cannot be said that +what already belongs to the plaintiff ought to be conveyed to +him, for conveyance transfers ownership, and what is his +cannot be made more his than it is already. Yet for the +prevention of theft, and multiplication of remedies against +the thief, it has been provided that, besides the penalty of +twice or four times the value of the property stolen, the pro- +perty itself, or its value, may be recovered from the thief by a +personal action in the form ‘if it be proved that the defendant +ought to convey,’ as an alternative for the real action which +is also available to the plaintiff, and in which he asserts his +ownership of the stolen property. 15 We call a real action a +‘vindication,’ and a personal action, in which the contention +is that some property should be conveyed to us, or some +service performed for us, a ‘condiction,’ this term being de- +rived from condicere, which has an old meaning of ‘giving +notice.’ To call a personal action, in which the plaintiff con- +tends that the defendant ought to convey to him, a condiction, +is in reality an abuse of the term, for nowadays there is no +such notice as was given in the old action of that name. + +16 Actions may be divided into those which are purely +reparative, those which are purely penal, and those which +are mixed, or partly reparative, partly penal. 17 All real +actions are purely reparative. Of personal actions those +which spring from contract are nearly all of the same cha- +racter; for instance, the actions on loans of money, or stipu- +lations, on loans for use, on deposit, agency, partnership, sale, +and hire. If, however, the action be on a deposit occasioned +by a riot, a fire, the fall of a building, or a shipwreck, the +praetor enables the depositor to recover double damages, +provided he sues the bailee in person; he cannot recover +double damages from the bailee’s heir, unless he can prove +personal fraud against the latter. In these two cases the +action, though on contract, is mixed. 18 Actions arising from +delict are sometimes purely penal, sometimes are partly penal +and partly reparative, and consequently mixed. The sole +object of the action of theft is the recovery of a penalty, +whether that penalty be four times the value of the property +stolen, as in theft detected in the commission, or only twice +that value, as in simple theft. The property itself is recover- +able by an independent action in which the person from whom +it has been stolen claims it as his own, whether it be in the +possession of the thief himself or of some third person; and +against the thief himself he may even bring a condiction, to +recover the property or its value. 19 The action on robbery is +mixed, for the damages recoverable thereunder are four times +the value of the property taken, three-fourths being pure +penalty, and the remaining fourth compensation for the loss +which the plaintiff has sustained. So too the action on un- +lawful damage under the lex Aquilia is mixed, not only +where the defendant denies his liability, and so is sued for +double damages, but also sometimes where the claim is for +simple damages only; as where a lame or one-eyed slave is +killed, who within the year previous was sound and of large +value; in which case the defendant is condemned to pay his +greatest value within the year, according to the distinction +which has been drawn above. Persons too who are under +an obligation as heirs to pay legacies or trust bequests to our +holy churches or other venerable places, and neglect to do +so until sued by the legatee, are liable to a mixed action, by +which they are compelled to give the thing or pay the money +left by the deceased, and, in addition, an equivalent thing or +sum as penalty, the condemnation being thus in twice the +value of the original claim. + +20 Some actions are mixed in a different sense, being partly +real, partly personal. They are exemplified by the action for +the division of a ‘family,’ by which one of two or more joint +heirs can enforce against the other or rest a partition of the +inheritance, and by the actions for the division of common +property, and for rectification of boundaries between adjoin- +ing landed proprietors. In these three actions the judge has +power, according as shall to him seem fair and equitable, to +adjudge any part of the joint property, or of the land in dis- +pute, to any one of the parties, and to order any one of them +who seems to have an undue advantage in the partition or +rectification to pay a certain sum of money to the other or the +rest as compensation. 21 The damages recoverable in an +action may be either once, twice, three, or four times the value +of the plaintiff’s original interest; there is no action by which +more than fourfold damages can be claimed. 22 Single +damages only are recoverable in the actions on stipulation, +loan for consumption, sale, hire, agency, and many others be- +sides. 23 Actions claiming double damages are exemplified +by those on simple theft, on unlawful damage under the lex +Aquilia, on certain kinds of deposit, and for corruption of a +slave, which lies against any one by whose instigation and +advice another man’s slave runs away, or becomes disobedient +to his master, or takes to dissolute habits, or becomes worse +in any way whatsoever, and in which the value of property +which the runaway slave has carried off is taken into account. +Finally, as we remarked above, the action for the recovery of +legacies left to places of religion is of this character. 24 An +action for triple damages is grounded when a plaintiff makes +an overstatement of his claim in the writ of summons, in con- +sequence of which the officers of the court take too large a +fee from the defendant. In such a case the latter will be able +to recover from the plaintiff three times the loss which he +sustains by the overcharge, including in these damages simple +compensation for the sum paid in excess of the proper fee. +This is provided by a distinguished constitution in our Code, +under which a statutory condiction clearly lies for the damages +in question. 25 Quadruple damages are recoverable by the +action on theft detected in the commission, by the action on +intimidation, and by the action grounded on the giving of +money in order to induce one man to bring a vexatious suit +against another, or to desist from a suit when brought. Under +our constitution too a statutory condiction lies for the re- +covery of fourfold damages from officers of the court, who +exact money from defendants in excess of its provisions. +26 There is this difference between the actions on simple theft +and for the corruption of a slave, and the other of which we +spoke in connexion with them, that by the two former double +damages are recoverable under any circumstances; the latter, +namely the action on unlawful damage under the lex Aquilia, +and that on certain kinds of deposit, entail double damages +on the defendant only if he denies his liability; if he admits +it, simple damages alone can be recovered. The damages +are double under an action for recovery of legacies left to +religious places not only when the liability is denied, but also +when the defendant delays payment until sued by the order +of a magistrate; if he admits his liability, and pays before +being so sued, he cannot be compelled to pay more than the +original debt. 27 The action on intimidation also differs from +the others which we mentioned in the same connexion, in +that it contains in its very nature an implied condition that +the defendant is entitled to acquittal if, on being so ordered +by the judge, he restores to the plaintiff the property of +which the latter has been deprived. In other actions of the +same class this is not so; for instance, in the action on theft +detected in the commission, the defendant has under any +circumstances to pay fourfold damages. 28 Again, some actions +are equitable, others are actions of strict law. To the former +class belong the actions on sale, hire, unauthorised agency, +agency proper, deposit, partnership, guardianship, loan for +use, mortgage, division of a ‘family,’ partition of joint pro- +perty, those on the innominate contracts of sale by commission +and exchange, and the suit for recovery of an inheritance. +Until quite recently it was a moot point whether the last- +named was properly an equitable action, but our constitution +has definitely decided the question in the affirmative. 29 For- +merly too the action for the recovery of a dowry was an +equitable action: but as we found that the action on stipula- +tion was more convenient, we have, while establishing many +distinctions, attached all the advantages which the former +remedy possessed to the action on stipulation, when employed +for the recovery of a dowry. The former action being thus +by a judicious reform abolished, that on stipulation, by which +it has been replaced, has deservedly been invested with all the +characteristics of an equitable action, so far as and whenever +it is brought for the recovery of a dowry. We have also given +persons entitled to sue for such recovery a tacit hypothec +over the husband’s property, but this right is not to give any +priority over other hypothecary creditors except where it is +the wife herself who sues to recover her dowry; it being in +her interest only that we have made this new provision. 30 In +equitable actions the judge has full power to assess on good +and fair grounds the amount due to the plaintiff, and in so +doing to take into account counterclaims of the defendant, +condemning the latter only in the balance. Even in actions +of strict law counterclaims have been permitted since a re- +script of the Emperor Marcus, the defendant meeting the +plaintiff’s claim by a plea of fraud. By our constitution, how- +ever, a wider field has been given to the principle of set-off, +when the counterclaim is clearly established, the amount +claimed in the plaintiff’s action, whether real or personal, or +whatever its nature, being reduced by operation of law to the +extent of the defendant’s counterclaim. The only exception +to this rule is the action on deposit, against which we have +deemed it no less than dishonest to allow any counterclaim to +be set up; for if this were permitted persons might be fraudu- +lently prevented from recovering property deposited under the +pretence of a set-off. 31 There are some actions again which +we call arbitrary, because their issue depends on an ‘arbi- +trium’ or order of the judge. Here, unless on such order the +defendant satisfies the plaintiff’s claim by restoring or pro- +ducing the property, or by performing his obligation, or in a +noxal action by surrendering the guilty slave, he ought to be +condemned. Some of such actions are real, others personal. +The former are exemplified by the Publician action, the +Servian action for the recovery of a tenant farmer’s stock, and +the quasi-Servian or so-called hypothecary action; the latter +by the actions on intimidation and on fraud, by that for the +recovery of a thing promised at a particular place, and by +the action claiming production of property. In all these +actions, and others of a similar nature, the judge has full +power to determine on good and just grounds, according to +the circumstances of each particular case, the form in which +reparation ought to be made to the plaintiff. + +32 It is the judge’s duty, in delivering judgement, to make his +award as definite as possible, whether it relate to the pay- +ment of money or the delivery of property, and this even when +the plaintiff’s claim is altogether unliquidated. + +33 Formerly, if the plaintiff, in his statement of claim, de- +manded more than he was entitled to, his case fell to the +ground, that is, he lost even that which was his due, and in +such cases the praetor usually declined to restore him to his +previous position, unless he was a minor; for in this matter +too the general rule was observed of giving relief to minors +after inquiry made, if it were proved that they had made an +error owing to their lack of years. If, however, the mistake +was entirely justifiable, and such as to have possibly misled +even the discreetest of men, relief was afforded even to persons +of full age, as in the case of a man who sues for the whole of +a legacy, of which part is found to have been taken away by +codicils subsequently discovered; or where such subsequently +discovered codicils give legacies to other persons, so that, the +total amount given in legacies being reduced under the lex +Falcidia, the first legatee is found to have claimed more than +the three-fourths allowed by that statute. Over-statement of +claim takes four forms; that is, it may relate either to the +object, the time, the place, or the specification. A plaintiff +makes an over-claim in the object when, for instance, he sues +for twenty aurei while only ten are owing to him, or when, +being only part owner of property, he sues to recover the +whole or a greater portion of it than he is entitled to. Over- +claim in respect of time occurs when a man sues for money +before the day fixed for payment, or before the fulfilment of +a condition on which payment was dependent; for exactly as +one who pays money only after it falls due is held to pay less +than his just debt, so one who makes his demand prematurely +is held to make an over-claim. Over-claim in respect of place +is exemplified by a man suing at one place for performance of +a promise which it was expressly agreed was to be performed +at another, without any reference, in his claim, to the latter: as, +for instance, if a man, after stipulating thus, ‘Do you promise to +pay at Ephesus?’ were to claim the money as due at Rome, +without any addition as to Ephesus. This is an over-claim, +because by alleging that the money is due at Rome simply, the +plaintiff deprives his debtor of the advantage he might have +derived from paying at Ephesus. On this account an arbitrary +action is given to a plaintiff who sues at a place other than +that agreed upon for payment, in which the advantage which +the debtor might have had in paying at the latter is taken +into consideration, and which usually is greatest in connexion +with commodities which vary in price from district to district, +such as wine, oil, or grain; indeed even the interest on loans +of money is different in different places. If, however, a plaintiff +sues at Ephesus -- that is, in our example, at the place agreed +upon for the payment -- he need do no more than simply allege +the debt, as the praetor too points out, because the debtor has +all the advantage which payment in that particular place gives +him. Over-claim in respect of specification closely resembles +over-claim in respect of place, and may be exemplified by a +man’s stipulating from you ‘do you promise to convey Stichus +or ten aurei?’ and then suing for the one or the other -- that is +to say, either for the slave only, or for the money only. The +reason why this is an over-claim is that in stipulations of this +sort it is the promisor who has the election, and who may +give the slave or the money, whichever he prefers; conse- +quently if the promisee sues, alleging that either the money +alone, or the slave alone, ought to be conveyed to him, he +deprives his adversary of his election, and thereby puts him +in a worse position, while he himself acquires an undue ad- +vantage. Other cases of this form of over-claim occur where +a man, having stipulated in general terms for a slave, for +wine, or for purple, sues for the particular slave Stichus, or +for the particular wine of Campania, or for Tyrian purple; +for in all of these instances he deprives his adversary of his +election, who was entitled, under the terms of the stipulation, +to discharge his obligation in a mode other than that which +is required of him. And even though the specific thing for +which the promisee sues be of little or no value, it is still an +over-claim: for it is often easier for a debtor to pay what is of +greater value than what is actually demanded of him. Such +were the rules of the older law, which, however, has been made +more liberal by our own and Zeno’s statutes. Where the +over-claim relates to time, the constitution of Zeno prescribes +the proper procedure; if it relates to quantity, or assumes any +other form, the plaintiff, as we have remarked above, is to be +condemned in a sum equivalent to three times any loss which +the defendant may have sustained thereby. 34 If the plaintiff in +his statement of claim demands less than is his due, as for +instance by alleging a debt of five aurei, when in fact he is +owed ten, or by claiming only half of an estate the whole of +which really belongs to him, he runs no risk thereby, for, by +the constitution of Zeno of sacred memory, the judge will in +the same action condemn the defendant in the residue as well +as in the amount actually claimed. 35 If he demands the +wrong thing in his statement of claim, the rule is that he runs +no risk; for if he discovers his mistake, we allow him to set it +right in the same action. For instance, a plaintiff who is +entitled to the slave Stichus may claim Eros; or he may +allege that he is entitled to a conveyance under a will, when +his right is founded in reality upon a stipulation. + +36 There are again some actions in which we do not always +recover the whole of what is due to us, but in which we some- +times get the whole, sometimes only part. For instance, if the +fund to which our claim looks for satisfaction be the peculium +of a son in power or a slave, and it is sufficient in amount to +meet that claim, the father or master is condemned to pay +the whole debt; but if it is not sufficient, the judge condemns +him to pay only so far as it will go. Of the mode of ascertaining +the amount of a peculium we will speak in its proper place. +37 So too if a woman sues for the recovery of her dowry, the +rule is that the husband is to be condemned to restore it only +so far as he is able, that is, so far as his means permit. Ac- +cordingly, if his means will enable him to restore the dowry in +full, he will be condemned to do so; if not, he will be condemn- +ed to pay only so much as he is able. The amount of the wife’s +claim is also usually lessened by the husband’s right of retaining +some portion for himself, which he may do to the extent of any +outlay he has made on dowry property, according to the rule, +stated in the larger work of the Digest, that a dowry is dimin- +ished by operation of law to the extent of all necessary outlay +thereon. 38 Again, if a man goes to law with his parent or +patron, or if one partner brings an action of partnership against +another, he cannot get judgement for more than his adversary +is able to pay. The rule is the same when a man is sued on a +mere promise to give a present. 39 Very often too a plaintiff +obtains judgement for less than he was owed through the +defendant’s pleading a set-off: for, as has already been ob- +served, the judge, acting on equitable principles, would in such +a case take into account the cross demand in the same trans- +action of the defendant, and condemn him only in the residue. +40 So too if an insolvent person, who surrenders all his effects +to his creditors, acquires fresh property of sufficient amount +to justify such a step, his creditors may sue him afresh, and +compel him to satisfy the residue of their claims so far as he +is able, but not to give up all that he has; for it would be +inhuman to condemn a man to pay his debts in full who has +already been once deprived of all his means. + +TITLE VII +OF CONTRACTS MADE WITH PERSONS +IN POWER + +As we have already mentioned the action in respect of the +peculium of children in power and slaves, we must now explain +it more fully, and with it the other actions by which fathers +and masters are sued for the debts of their sons or slaves. +Whether the contract be made with a slave or with a child in +power, the rules to be applied are much the same; and there- +fore, to make our statements as short as possible, we will +speak only of slaves and masters, premising that what we say +of them is true also of children and the parents in whose power +they are; where the treatment of the latter differs from that +of the former, we will point out the divergence. + +1 If a slave enters into a contract at the bidding of his +master, the praetor allows the latter to be sued for the whole +amount: for it is on his credit that the other party relies in +making the contract. 2 On the same principle the praetor +grants two other actions, in which the whole amount due may +be sued for; that called exercitoria, to recover the debt of a +ship-master, and that called institoria, to recover the debt of +a manager or factor. The former lies against a master who +has appointed a slave to be captain of a ship, to recover a +debt incurred by the slave in his character of captain, and it is +called exercitoria, because the person to whom the daily profits +of a ship belong is termed an exercitor. The latter lies against +a man who has appointed a slave to manage a shop or business, +to recover any debt incurred in that business; it is called insti- +toria, because a person appointed to manage a business is +termed an institor. And these actions are granted by the +praetor even if the person whom one sets over a ship, a shop, +or any other business, be a free man or another man’s slave, +because equity requires their application in these latter cases +no less than in the former. 3 Another action of the praetor’s +introduction is that called tributoria. If a slave, with the +knowledge of his master, devotes his peculium to a trade or +business, the rule which the praetor follows, in respect of +contracts made in the course of such trade or business, is that +the peculium so invested and its profits shall be divided between +the master, if anything is due to him, and the other creditors in +the ratio of their claims. The distribution of these assets is left +to the master, subject to this provision, that any creditor who +complains of having received less than his proper share can +bring this action against him for an account. 4 There is also +an action in respect of peculium and of what has been con- +verted to the uses of the master, under which, if a debt has +been contracted by a slave without the consent of his master, +and some portion thereof has been converted to his uses, he is +liable to that extent, while if no portion has been so converted, +he is liable to the extent of the slave’s peculium. Conversion +to his uses is any necessary expenditure on his account, as +repayment to his creditors of money borrowed, repair of +his falling house, purchase of corn for his slaves, or of an +estate for him, or any other necessary. Thus, if out of ten +aurei which your slave borrows from Titius, he pays your +creditor five, and spends the remainder in some other way, +you are liable for the whole of the five, and for the remainder +to the extent of the peculium: and from this it is clear that if +the whole ten were applied to your uses Titius could recover +the whole from you. Thus, though it is but a single action +which is brought in respect of peculium and of conversion to +uses, it has two condemnatory clauses. The judge by whom +the action is tried first looks to see whether there has been any +application to the uses of the master, and does not proceed +to ascertain the amount of the peculium unless there has been +no such application, or a partial application only. In ascer- +taining the amount of the peculium deduction is first made of +what is owed to the master or any person in his power, and +the residue only is treated as peculium; though sometimes +what a slave owes to a person in his master’s power is not +deducted, for instance, where that person is another slave who +himself belongs to the peculium; thus, where a slave owes a +debt to his own vicarial slave, its amount is not deducted from +the peculium. 5 There is no doubt that a person with whom +a slave enters into a contract at the bidding of his master, or +who can sue by the actions exercitoria or institoria, may in +lieu thereof bring an action in respect of the peculium and of +conversion to uses; but it would be most foolish of him to +relinquish an action by which he may with the greatest ease +recover the whole of what is owing to him under the contract, +and undertake the trouble of proving a conversion to uses, or +the existence of a peculium sufficient in amount to cover the +whole of the debt. So too a plaintiff who can sue by the action +called tributoria may sue in respect of peculium and conversion +to uses, and sometimes the one action is the more advisable, +sometimes the other. The former has this advantage, that in +it the master has no priority; there is no deduction of debts +owing to him, but he and the other creditors stand on precisely +the same footing; while in the action in respect of peculium +deduction is first made of debts owing to the master, who is +condemned to pay over to the creditors only what then +remains. On the other hand, the advantage of the action in +respect of peculium is that in it the slave’s whole peculium is +liable to his creditors, whereas in the action called tributoria +only so much of it is liable as is invested in the trade or +business; and this may be only a third, a fourth, or even a less +fraction, because the slave may have the rest invested in land +or slaves, or out on loan. A creditor ought therefore to select +the one or the other action by considering their respective +advantages in each particular case; though he certainly ought +to choose that in respect of conversion to uses, if he can prove +such conversion. 6 What we have said of the liability of a master +on the contracts of his slave is equally applicable where the +contract is made by a child or grandchild in the power of his +or her father or grandfather. 7 A special enactment in favour +of children in power is found in the senatusconsult of Macedo, +which has prohibited the giving of loans of money to such +persons, and refused an action to the lender both against the +child, whether he be still in power, or has become independent +by death of the ancestor or emancipation, and against the +parent, whether he still retains the child in his power, or has +emancipated him. This enactment was made by the Senate +because it was found that persons in power, when dragged +down by the burden of loans which they had squandered in +profligacy, often plotted against the lives of their parents. + +8 Finally, it should be observed that where a contract has been +entered into by a slave or son in power at his master’s or +parent’s bidding, or where there has been a conversion to his +uses, a condiction may be brought directly against the parent +or master, exactly as if he had been the original contracting +party in person. So too, wherever a man is suable by either +of the actions called exercitoria and institoria, he may, in lieu +thereof, be sued directly by a condiction, because in effect the +contract in such cases is made at his bidding. + +TITLE VIII +OF NOXAL ACTIONS + +Where a delict, such as theft, robbery, unlawful damages, or +outrage, is committed by a slave, a noxal action lies against +the master, who on being condemned has the option of paying +the damages awarded, or surrendering the slave in satisfaction +of the injury. 1 The wrongdoer, that is, the slave, is called +‘noxa’; ‘noxia’ is the term applied to the wrong itself, that is, +the theft, damage, robbery, or outrage. 2 This principle of +noxal surrender in lieu of paying damages awarded is based on +most excellent reason, for it would be unjust that the misdeed +of a slave should involve his master in any detriment beyond +the loss of his body. 3 If a master is sued by a noxal action +on the ground of his slave’s delict, he is released from all +liability by surrendering the slave in satisfaction of the wrong, +and by this surrender his right of ownership is permanently +transferred; though if the slave can procure enough money to +compensate the surrenderee in full for the wrong he did him, +he can, by applying to the praetor, get himself manumitted +even against the will of his new master. 4 Noxal actions +were introduced partly by statute, partly by the Edict of the +praetor; for theft, by the statute of the Twelve Tables; for un- +lawful damages, by the lex Aquilia; for outrage and robbery, +by the Edict. 5 Noxal actions always follow the person of the +wrongdoer. Thus, if your slave does a wrong while in your +power, an action lies against you; if he becomes the property +of some other person, that other is the proper person to be +sued; and if he is manumitted, he becomes directly and per- +sonally liable, and the noxal action is extinguished. Conversely, +a direct action may change into noxal; thus, in an independent +person has done a wrong, and then becomes your slave +(as he may in several ways described in the first Book), a +noxal action lies against you in lieu of the direct action which +previously lay against the wrongdoer in person. 6 But no +action lies for an offence committed by a slave against his +master, for between a master and a slave in his power there +can be no obligation; consequently, if the slave becomes the +property of some other person, or is manumitted, neither he +nor his new master can be sued; and on the same principle, if +another man’s slave commits a wrong against you, and then +becomes your property, the action is extinguished, because +it has come into a condition in which an action cannot exist; the +result being that even if the slave passes again out of your +power you cannot sue. Similarly, if a master commits a wrong +against his slave, the latter cannot sue him after manumission +or alienation. 7 These rules were applied by the ancients to +wrongs committed by children in power no less than by slaves; +but the feeling of modern times has rightly rebelled against +such inhumanity, and noxal surrender of children under power +has quite gone out of use. Who could endure in this way to +give up a son, still more a daughter, to another, whereby the +father would be exposed to greater anguish in the person of +a son than even the latter himself, while mere decency forbids +such treatment in the case of a daughter? Accordingly, such +noxal actions are permitted only where the wrongdoer is a +slave, and indeed we find it often laid down by old legal +writers that sons in power may be sued personally for their +own delicts. + +TITLE IX +OF PAUPERIES, OR DAMAGE DONE +BY QUADRUPEDS + +A noxal action was granted by the statute of the Twelve +Tables in cases of mischief done through wantonness, passion, +or ferocity, by irrational animals; it being by an enactment +of that statute provided, that if the owner of such an +animal is ready to surrender it as compensation for the +damage, he shall thereby be released from all liability. +Examples of the application of this enactment may be +found in kicking by a horse, or goring by a bull, known +to be given that way; but the action does not lie unless +in causing the damage the animal is acting contrary to its +natural disposition; if its nature be to be savage, this remedy +is not available. Thus, if a bear runs away from its owner, +and causes damage, the quondam owner cannot be sued, for +immediately with its escape his ownership ceased to exist. +The term pauperies, or ‘mischief,’ is used to denote damage +done without there being any wrong in the doer of it, for an +unreasoning animal cannot be said to have done a wrong. +Thus far as to the noxal action. + +1 It is, however, to be observed that the Edict of the aedile +forbids dogs, boars, bears, or lions to be kept near where there +is a public road, and directs that if any injury be caused to +a free man through disobedience of this provision, the owner +of the beast shall be condemned to pay such sum as to the +judge shall seem fair and equitable: in case of any other in- +jury the penalty is fixed at double damages. Besides this +aedilician action, that on pauperies may also be sometimes +brought against the same defendant; for when two or more +actions, especially penal ones, may be brought on one and +the same ground, the bringing of one does not debar the +plaintiff from subsequently bringing the other. + +TITLE X +OF PERSONS THROUGH WHOM WE CAN +BRING AN ACTION + +We must now remark that a man may sue either for himself, +or for another as attorney, guardian, or curator: whereas +formerly one man could not sue for another except in public +suits, as an assertor of freedom, and in certain actions relating +to guardianship. The lex Hostilia subsequently permitted +the bringing of an action of theft on behalf of persons who +were in the hands of an enemy, or absent on State employment, +and their pupils. It was, however, found extremely inconvenient +to be unable to either bring or defend an action on behalf of +another, and accordingly men began to employ attorneys for +this purpose; for people are often hindered by ill-health, age, +unavoidable absence, and many other causes from attending +to their own business. 1 For the appointment of an attorney +no set form of words is necessary, nor need it be made in the +presence of the other party, who indeed usually knows nothing +about it; for in law any one is your attorney whom you allow +to bring or defend an action on your behalf. 2 The modes of +appointing guardians and curators have been explained in the +first Book. + +TITLE XI +OF SECURITY + +The old system of taking security from litigants differed +from that which has more recently come into use. + +Formerly the defendant in a real action was obliged to give +security, so that if judgement went against him, and he neither +gave up the property which was in question, nor paid the +damages assessed, the plaintiff might be able to sue either +him or his sureties: and this is called security for satisfaction +of judgement, because the plaintiff stipulates for payment to +himself of the sum at which the damages are assessed. And +there was all the more reason for compelling the defendant in +a real action to give security if he was merely the representative +of another. From the plaintiff in a real action no security was +required if it was on his own account that he sued, but if he +was merely an attorney, he was required to give security for +the ratification of his proceedings by his principal, owing to +the possibility of the latter’s subsequently suing in person +on the same claim. Guardians and curators were required by +the Edict to give the same security as attorneys; but when +they appeared as plaintiffs they were sometimes excused. +1 So much for real actions. In personal actions the same rules +applied, so far as the plaintiff was concerned, as we have +said obtained in real actions. If the defendant was repre- +sented by another person, security had always to be given, +for no one is allowed to defend another without security; +but if the defendant was sued on his own account, he was +not compelled to give security for satisfaction of judgement. +2 Nowadays, however, the practice is different; for if the de- +fendant is sued on his own account, he is not compelled to +give security for repayment of the damages assessed, whether +the action be real or personal; all that he has to do is to +enter into a personal engagement that he will subject himself +to the jurisdiction of the court down to final judgement; the +mode of making such engagement being either a promise +under oath, which is called a sworn recognizance, or a bare +promise, or giving of sureties, according to the defendant’s +rank and station. 3 But the case is different where either +plaintiff or defendant appears by an attorney. If the plaintiff +does so, and the attorney’s appointment is not enrolled in the +records, or confirmed by the principal personally in court, the +attorney must give security for ratification of his proceedings +by his principal; and the rule is the same if a guardian, +curator, or other person who has undertaken the management +of another’s affairs begins an action through an attorney. 4 If +a defendant appears, and is ready to appoint an attorney to +defend the action for him, he can do this either by coming +personally into court, and confirming the appointment by the +solemn stipulations employed when security is given for +satisfaction of judgement, or by giving security out of court +whereby, as surety for his attorney, he guarantees the observ- +ance of all the clauses of the so-called security for satisfaction +of judgement. In all such cases, he is obliged to give a right +of hypothec over all his property, whether the security be +given in or out of court, and this right avails against his heirs +no less than against himself. Finally, he has to enter into +a personal engagement or recognizance to appear in court +when judgement is delivered; and in default of such appear- +ance his surety will have to pay all the damages to which he +is condemned, unless notice of appeal is given. 5 If, however, +the defendant for some reason or other does not appear, and +another will defend for him, he may do so, and it is imma- +terial whether the action be real or personal, provided he will +give security for satisfaction of the judgement in full; for we +have already mentioned the old rule, that no one is allowed +to defend another without security. 6 All this will appear +more clearly and fully by reference to the daily practice of +the courts, and to actual cases of litigation: 7 and it is our +pleasure that these rules shall hold not only in this our royal +city, but also in all our provinces, although it may be that +through ignorance the practice elsewhere was different: for +it is necessary that the provinces generally shall follow the +lead of the capital of our empire, that is, of this royal city, +and observe its usages. + +TITLE XII +OF ACTIONS PERPETUAL AND TEMPORAL, +AND WHICH MAY BE BROUGHT BY AND +AGAINST HEIRS + +It should be here observed that actions founded on statutes, +senatusconsults, and imperial constitutions could be brought +at any length of time from the accrual of the cause of action, +until certain limits were fixed for actions both real and per- +sonal by imperial enactments; while actions which were +introduced by the praetor in the exercise of his jurisdiction +could, as a rule, be brought only within a year, that being the +duration of his authority. Some praetorian actions, however, +are perpetual, that is to say, can be brought at any time +which does not exceed the limit fixed by the enactments re- +ferred to; for instance, those granted to ‘possessors of goods’ +and other persons who are fictitiously represented as heirs. +So, too, the action for theft detected in the commission, though +praetorian, is perpetual, the praetor having judged it absurd +to limit it by a year. 1 Actions which will lie against a man +under either the civil or the praetorian law will not always +lie against his heir, the rule being absolute that for delict -- for +instance, theft, robbery, outrage, or unlawful damage -- no +penal action can be brought against the heir. The heir of the +person wronged, however, may bring these actions, except in +outrage, and similar cases, if any. Sometimes, even an action +on contract cannot be brought against the heir; this being +the case where the testator has been guilty of fraud, and his +heir has not profited thereby. If, however, a penal action, such +as those we have mentioned, has been actually commenced +by the original parties, it is transmitted to the heirs of each. +2 Finally, it must be remarked that if, before judgement is pro- +nounced, the defendant satisfies the plaintiff, the judges ought +to absolve him, even though he was liable to condemnation +at the time when the action was commenced; this being the +meaning of the old dictum, that all actions involve the power +of absolution. + +TITLE XIII +OF EXCEPTIONS + +We have next to examine the nature of exceptions. Ex- +ceptions are intended for the protection of the defendant, who +is often in this position, that though the plaintiff’s case is a +good one in the abstract, yet as against him, the particular +defendant, his contention is inequitable. 1 For instance, if you +are induced by duress, fraud, or mistake to promise Titius by +stipulation what you did not owe him, it is clear that by the +civil law you are bound, and that the action on your promise +is well grounded; yet it is inequitable that you should be con- +demned, and therefore in order to defeat the action you are +allowed to plead the exception of duress, or of fraud, or one +framed to suit the circumstances of the cases. 2 So too, if, as +a preliminary to an advance of money, one stipulates from you +for its repayment, and then never advances it after all, it is +clear that he can sue you for the money, and you are bound +by your promise to give it; but it would be iniquitous that you +should be compelled to fulfil such an engagement, and therefore +you are permitted to defend yourself by the exception that +the money, in point of fact, was never advanced. The time +within which this exception can be pleaded, as we remarked +in a former Book, has been shortened by our constitution. +3 Again, if a creditor agrees with his debtor not to sue for +a debt, the latter still remains bound, because an obligation +cannot be extinguished by a bare agreement; accordingly, +the creditor can validly bring against him a personal action +claiming payment of the debt, though, as it would be in- +equitable that he should be condemned in the face of the +agreement not to sue, he may defend himself by pleading +such agreement in the form of an exception. 4 Similarly, if at +his creditor’s challenge a debtor affirms on oath that he is not +under an obligation to convey, he still remains bound; but as +it would be unfair to examine whether he has perjured him- +self, he can, on being sued, set up the defence that he has +sworn to the non-existence of the debt. In real actions, too, +exceptions are equally necessary; thus, if on the plaintiff’s +challenge the defendant swears that the property is his, there +is nothing to prevent the former from persisting in his action; +but it would be unfair to condemn the defendant, even though +the plaintiff’s contention that the property is his be well +founded. 5 Again, an obligation still subsists even after judge- +ment in an action, real or personal, in which you have been +defendnt, so that in strict law you may be sued again on the +same ground of action; but you can effectually meet the +claim by pleading the previous judgement. 6 These examples +will have been sufficient to illustrate our meaning; the multi- +tude and variety of the cases in which exceptions are neces- +sary may be learnt by reference to the larger work of the +Digest or Pandects. 7 Some exceptions derive their force from +statutes or enactments equivalent to statutes, others from the +jurisdiction of the praetor; 8 and some are said to be perpetual +or peremptory, others to be temporary or dilatory. 9 Perpetual +or peremptory exceptions are obstructions of unlimited dura- +tion, which practically destroy the plaintiff’s ground of action, +such as the exceptions of fraud, intimidation, and agreement +never to sue. 10 Temporary or dilatory exceptions are merely +temporary obstructions, their only effect being to postpone for +a while the plaintiff’s right to sue; for example, the plea of +an agreement not to sue for a certain time, say, five years; +for at the end of that time the plaintiff can effectually pursue +his remedy. Consequently persons who would like to sue be- +fore the expiration of the time, but are prevented by the plea +of an agreement to the contrary, or something similar, ought +to postpone their action till the time specified has elapsed; and +it is on this account that such exceptions are called dilatory. +If a plaintiff brought his action before the time had expired, +and was met by the exception, this would debar him from all +success in those proceedings, and formerly he was unable to +sue again, owing to his having rashly brought the matter into +court, whereby he consumed his right of action, and lost all +chance of recovering what was his due. Such unbending rules, +however, we do not at the present day approve. Plaintiffs +who venture to commence an action before the time agreed +upon, or before the obligation is yet actionable, we subject to +the constitution of Zeno, which that most sacred legislator +enacted as to over-claims in respect of time; whereby, if the +plaintiff does not observe the stay which he has voluntarily +granted, or which is implied in the very nature of the action, +the time during which he ought to have postponed his action +shall be doubled, and at its termination the defendant shall not +be suable until he has been reimbursed for all expenses hitherto +incurred. So heavy a penalty it is hoped will induce plaintiffs in +no case to sue until they are entitled. 11 Moreover, some per- +sonal incapacities produce dilatory exceptions, such as those +relating to agency, supposing that a party wishes to be repre- +sented in an action by a soldier or a woman; for soldiers may +not act as attorneys in litigation even on behalf of such near +relatives as a father, mother, or wife, not even in virtue of an +imperial rescript, though they may attend to their own affairs +without committing a breach of discipline. We have sanctioned +the abolition of those exceptions, by which the appointment +of an attorney was formerly opposed on account of the infamy +of either attorney or principal, because we found that they no +longer were met with in actual practice, and to prevent the +trial of the real issue being delayed by disputes as to their +admissibility and operation. + +TITLE XIV +OF REPLICATIONS + +Sometimes an exception, which prima facie seems just to +the defendant, is unjust to the plaintiff, in which case the +latter must protect himself by another allegation called a +replication, because it parries and counteracts the force of the +exception. For example, a creditor may have agreed with +his debtor not to sue him for money due, and then have sub- +sequently agreed with him that he shall be at liberty to do so; +here if the creditor sues, and the debtor pleads that he ought +not to be condemned on proof being given of the agreement +not to sue, he bars the creditor’s claim, for the plea is true, and +remains so in spite of the subsequent agreement; but as it +would be unjust that the creditor should be prevented from re- +covering, he will be allowed to plead a replication, based upon +that agreement. 1 Sometimes again a replication, though prima +facie just, is unjust to the defendant; in which case he must +protect himself by another allegation called a rejoinder: 2 and +if this again, though on the face of it just, is for some reason +unjust to the plaintiff, a still further allegation is necessary +for his protection, which is called a surrejoinder. 3 And some- +times even further additions are required by the multiplicity +of circumstances under which dispositions are made, or by +which they are subsequently affected; as to which fuller in- +formation may easily be gathered from the larger work of +the Digest. 4 Exceptions which are open to a defendant are +usually open to his surety as well, as indeed is only fair: for +when a surety is sued the principal debtor may be regarded +as the real defendant, because he can be compelled by the +action on agency to repay the surety whatsoever he has dis- +bursed on his account. Accordingly, if the creditor agrees +with his debtor not to sue, the latter’s sureties may plead this +agreement, if sued themselves, exactly as if the agreement +had been made with them instead of with the principal +debtor. There are, however, some exceptions which, though +pleadable by a principal debtor, are not pleadable by his +surety; for instance, if a man surrenders his property to his +creditors as an insolvent, and one of them sues him for his +debt in full, he can effectually protect himself by pleading the +surrender; but this cannot be done by his surety, because the +creditor’s main object, in accepting a surety for his debtor, is +to be able to have recourse to the surety for the satisfaction +of his claim if the debtor himself becomes insolvent. + +TITLE XV +OF INTERDICTS + +We have next to treat of interdicts or of the actions by +which they have been superseded. Interdicts were formulae +by which the praetor either ordered or forbad some thing to +be done, and occurred most frequently in case of litigation +about possession or quasi-possession. + +1 The first division of interdicts is into orders of abstention, +of restitution, and of production. The first are those by which +the praetor forbids the doing of some act -- for instance, the +violent ejection of a bona fide possessor, forcible interference +with the internment of a corpse in a place where that may +lawfully be done, building upon sacred ground, or the doing +of anything in a public river or on its banks which may impede +its navigation. The second are those by which he orders +restitution of property, as where he directs possession to be +restored to a ‘possessor of goods’ of things belonging to an +inheritance, and which have hitherto been in the possession +of others under the title of heir, or without any title at all; or +where he orders a person to be reinstated in possession of +land from which he has been forcibly ousted. The third are +those by which he orders the production of persons or prop- +erty; for instance, the production of a person whose freedom +is in question, of a freedman whose patron wishes to demand +from him certain services, or of children on the application +of the parent in whose power they are. Some think that the +term interdict is properly applied only to orders of abstention, +because it is derived from the verb ‘interdicere,’ meaning to +denounce or forbid, and that orders of restitution or pro- +duction are properly termed decrees; but in practice they are +all called interdicts, because they are given ‘inter duos,’ be- +tween two parties. 2 The next division is into interdicts for +obtaining possession, for retaining possession, and for recov- +ering possession. 3 Interdicts for obtaining possession are +exemplified by the one given to a ‘possessor of goods,’ which +is called ‘Quorum bonorum,’ and which enjoins that whatever +portion of the goods, whereof possession has been granted to +the claimant, is in the hands of one who holds by the title of +heir or as mere possessor only, shall be delivered up to the +grantee of possession. A person is deemed to hold by the +title of heir who thinks he is an heir; he is deemed to hold +as mere possessor who relies on no title at all, but holds a +portion of the whole of the inheritance, knowing that he is +not entitled. It is called an interdict for obtaining possession, +because it is available only for initiating possession; accord- +ingly, it is not granted to a person who has already had and +lost possession. Another interdict for obtaining possession +is that named after Salvius, by which the landlord gets pos- +session of the tenant’s property which has been hypothecated +as a security for rent. 4 The interdicts ‘Uti possidetis’ and +‘Utrubi’ are interdicts for retaining possession, and are em- +ployed when two parties claim ownership in anything, in +order to determine which shall be defendant and which plain- +tiff; for no real action can be commenced until it is ascer- +tained which of the parties is in possession, because law and +reason both require that one of them shall be in possession +and shall be sued by the other. As the role of defendant in +a real action is far more advantageous than that of plaintiff, +there is almost invariably a keen dispute as to which party is +to have possession pending litigation: the advantage consist- +ing in this, that, even if the person in possession has no title +as owner, the possession remains to him unless and until the +plaintiff can prove his own ownership: so that where the +rights of the parties are not clear, judgement usually goes +against the plaintiff. Where the dispute relates to the pos- +session of land or buildings, the interdict called ‘Uti possidetis’ +is employed; where to movable property, that called ‘Utrubi.’ +Under the older law their effects were very different. In +‘Uti possidetis’ the party in possession at the issue of the +interdict was the winner, provided he had not obtained that +possession from his adversary by force, or clandestinely, or by +permission; whether he had obtained it from some one else in +any of these modes was immaterial. In ‘Utrubi’ the winner +was the party who had been in possession the greater portion +of the year next immediately preceding, provided that posses- +sion had not been obtained by force, or clandestinely, or by +permission, from his adversary. At the present day, however, +the practice is different, for as regards the right to immediate +possession the two interdicts are now on the same footing; the +rule being, that whether the property in question be movable +or immovable, the possession is adjudged to the party who +has it at the commencement of the action, provided he had +not obtained it by force, or clandestinely, or by permission, +from his adversary. 5 A man’s possession includes, besides +his own personal possession, the possession of any one who +holds in his name, though not subject to his power; for instance, +his tenant. So also a depositary or borrower for use may +possess for him, as is expressed by the saying that we retain +possession by any one who holds in our name. Moreover, +mere intention suffices for the retention of possession; so that +although a man is not in actual possession either himself or +through another, yet if it was not with the intention of +abandoning the thing that he left it, but with that of subse- +quently returning to it, he is deemed not to have parted with +the possession. Through what persons we can obtain +possession has been explained in the second Book; and it +is agreed on all hands that for obtaining possession intention +alone does not suffice. 6 An interdict for recovering +possession is granted to persons who have been forcibly +ejected from land or buildings; their proper remedy being +the interdict ‘Unde vi,’ by which the ejector is compelled +to restore possession, even though it had been originally +obtained from him by the grantee of the interdict by force, +clandestinely, or by permission. But by imperial constitutions, +as we have already observed, if a man violently seizes on +property to which he has a title, he forfeits his right of owner- +ship; if on property which belongs to some one else, he has +not only to restore it, but also to pay the person whom he has +violently dispossessed a sum of money equivalent to its value. +In cases of violent dispossession the wrongdoer is liable +under the lex Iulia relating to private or public violence, by +the former being meant unarmed force, by the latter dispos- +session effected with arms; and the term ‘arms’ must be taken +to include not only shields, swords, and helmets, but also +sticks and stones. 7 Thirdly, interdicts are divided into +simple and double. Simple interdicts are those wherein one +party is plaintiff and the other defendant, as is always the case +in orders of restitution or production; for he who demands +restitution or production is plaintiff, and he from whom it is +demanded is defendant. Of interdicts which order ab- +stention some are simple, others double. The simple are +exemplified by those wherein the praetor commands the +defendant to abstain from desecrating consecrated ground, +or from obstructing a public river or its banks; for he who +demands such order is the plaintiff, and he who is attempting +to do the act in question is defendant. Of double interdicts +we have examples in Uti possidetis and Utrubi; they are +called double because the footing of both parties is equal, +neither being exclusively plaintiff or defendant, but each sus- +taining the double role. + +8 To speak of the procedure and result of interdicts under +the older law would now be a waste of words; for when the +procedure is what is called ‘extraordinary,’ as it is nowadays +in all actions, the issue of an interdict is unnecessary, the +matter being decided without any such preliminary step in +much the same way as if it had actually been taken, and a +modified action had arisen on it. + +TITLE XVI +OF THE PENALTIES FOR RECKLESS +LITIGATION + +It should here be observed that great pains have been +taken by those who in times past had charge of the law to +deter men from reckless litigation, and this is a thing that we +too have at heart. The best means of restraining unjustifiable +litigation, whether on the part of a plaintiff or of a defendant, +are money fines, the employment of the oath, and the fear +of infamy. 1 Thus under our constitution, the oath has to be +taken by every defendant, who is not permitted even to +state his defence until he swears that he resists the plaintiff’s +claim because he believes that his cause is a good one. In +certain cases where the defendant denies his liability the +action is for double or treble the original claim, as in pro- +ceedings on unlawful damages, and for recovery of legacies +bequeathed to religious places. In various actions the damages +are multiplied at the outset; in an action on theft detected in +the commission they are quadrupled; for simple theft they are +doubled; for in these and some other actions the damages +are a multiple of the plaintiff’s loss, whether the defendant +denies or admits the claim. Vexatious litigation is checked +on the part of the plaintiff also, who under our constitution +is obliged to swear on oath that his action is commenced +in good faith; and similar oaths have to be taken by the +advocates of both parties, as is prescribed in other of our +enactments. Owing to these substitutes the old action of +dishonest litigation has become obsolete. The effect of this +was to penalize the plaintiff in a tenth part of the value he +claimed by action; but, as a matter of fact, we found that the +penalty was never exacted, and therefore its place has been +taken by the oath above mentioned, and by the rule that +a plaintiff who sues without just cause must compensate his +opponent for all losses incurred, and also pay the costs of the +action. 2 In some actions condemnation carries infamy with it, +as in those on theft, robbery, outrage, fraud, guardianship, +agency, and deposit, if direct, not contrary; also in the action +on partnership, which is always direct, and in which infamy is +incurred by any partner who suffers condemnation. In actions +on theft, robbery, outrage, and fraud, it is not only infamous +to be condemned, but also to compound, as indeed is only +just; for obligation based on delict differs widely from obli- +gation based on contract. + +3 In commencing an action, the first step depends upon that +part of the Edict which relates to summons; for before any- +thing else is done, the adversary must be summoned, that is to +say, must be called before the judge who is to try the action. +And herein the praetor takes into consideration the respect +due to parents, patrons, and the children and parents of +patrons, and refuses to allow a parent to be summoned by his +child, or a patron by his freedman, unless permission so to do +has been asked of and obtained from him; and for non- +observance of this rule he has fixed a penalty of fifty solidi. + +TITLE XVII +OF THE DUTIES OF A JUDGE + +Finally we have to treat of the duties of a judge; of which +the first is not to judge contrary to statutes, the imperial laws, +and custom. 1 Accordingly, if he is trying a noxal action, and +thinks that the master ought to be condemned, he should be +careful to word his judgement thus: ‘I condemn Publius +Maevius to pay ten aurei to Lucius Titius, or to surrender to +him the slave that did the wrong.’ 2 If the action is real, and he +finds against the plaintiff, he ought to absolve the defendant; +if against the latter, he ought to order him to give up the +property in question, along with its fruits. If the defendant +pleads that he is unable to make immediate restitution and +applies for execution to be stayed, and such application +appears to be in good faith, it should be granted upon the +terms of his finding a surety to guarantee payment of the +damages assessed, if restitution be not made within the time +allowed. If the subject of the action be an inheritance, the +same rule applies as regards fruits as we laid down in speaking +of actions for the recovery of single objects. If the defendant +is a mala fide possessor, fruits which but for his own negligence +he might have gathered are taken into account in much the +same way in both actions; but a bona fide possessor is not +held answerable for fruits which he has not consumed or has +not gathered, except from the moment of the commencement +of the action, after which time account is taken as well of +fruits which might have been gathered but for his negligence +as of those which have been gathered and consumed. 3 If the +object of the action be production of property, its mere pro- +duction by the defendant is not enough, but it must be ac- +companied by every advantage derived from it; that is to say, +the plaintiff must be placed in the same position he would +have been in if production had been made immediately on the +commencement of the action. Accordingly if, during the +delay occasioned by trial, the possessor has completed a +title to the property by usucapion, he will not be thereby +saved from being condemned. The judge ought also to take +into account the mesne profits, or fruits produced by the +property in the interval between the commencement of the +action and judgement. If the defendant pleads that he is +unable to make immediate production, and applies for a +stay, and such application appears to be in good faith, it +should be granted on his giving security that he will render +up the property. If he neither complies at once with the +judge’s order for production, nor gives security for doing so +afterwards, he ought to be condemned in a sum representing +the plaintiff’s interest in having production at the commence- +ment of the proceedings. 4 In an action for the division of a +‘family’ the judge ought to assign to each of the heirs specific +articles belonging to the inheritance, and if one of them is +unduly favoured, to condemn him, as we have already said, +to pay a fixed sum to the other as compensation. Again, the +fact the one only of two joint-heirs has gathered the fruits of +land comprised in the inheritance, or has damaged or con- +sumed something belonging thereto, is ground for ordering +him to pay compensation to the other; and it is immaterial, +so far as this action is concerned, whether the joint-heirs are +only two or more in number. 5 The same rules are applied in +an action for partition of a number of things held by joint-owners. +If such an action be brought for the partition of a single object, +such as an estate, which easily admits of division, the judge +ought to assign a specific portion of each joint-owner, +condemning such one as seems to be unduly favoured to pay +a fixed sum to the other as compensation. If the property +cannot be conveniently divided -- as a slave, for instance, +or a mule -- it ought to be adjudged entirely to one only of the +joint-owners, who should be ordered to pay a fixed sum to +the other as compensation. 6 In an action for rectification of +boundaries the judge ought to examine whether an adjudication +of property is actually necessary. There is only one case where +this is so; where, namely, convenience requires that the line +of separation between fields belonging to different owners +shall be more clearly marked than heretofore, and where, +accordingly, it is requisite to adjudge part of the one’s field +to the owner of the other, who ought, in consequence, to be +ordered to pay a fixed sum as compensation to his neighbour. +Another ground for condemnation in this action is the com- +mission of any malicious act, in respect of the boundaries, by +either of the parties, such as removal of landmarks, or cutting +down boundary trees: as also is contempt of court, expressed +by refusal to allow the fields to be surveyed in accordance +with a judge’s order. 7 Wherever property is adjudged to a +party in any of these actions, he at once acquires a complete +title thereto. + +TITLE XVIII +OF PUBLIC PROSECUTIONS + +Public prosecutions are not commenced as actions are, nor +indeed is there any resemblance between them and the other +remedies of which we have spoken; on the contrary, they +differ greatly both in the mode in which they are commenced, +and in the rules by which they are conducted. 1 They are +called public because as a general rule any citizen may come +forward as prosecutor in them. 2 Some are capital, others not. +By capital prosecutions we mean those in which the accused +may be punished with the extremest severity of the law, with +interdiction from water and fire, with deportation, or with hard +labour in the mines: those which entail only infamy and +pecuniary penalties are public, but not capital. 3 The follow- +ing statutes relate to public prosecutions. First, there is the +lex Iulia on treason, which includes any design against the +Emperor or State; the penalty under it is death, and even +after decease the guilty person’s name and memory are +branded with infamy. 4 The lex Iulia, passed for the repression +of adultery, punishes with death not only defilers of the +marriage-bed, but also those who indulge in criminal inter- +course with those of their own sex, and inflicts penalties on +any who without using violence seduce virgins or widows of +respectable character. If the seducer be of reputable con- +dition, the punishment is confiscation of half his fortune; if +a mean person, flogging and relegation. 5 The lex Cornelia on +assassination pursues those persons, who commit this crime +with the sword of vengeance, and also all who carry weapons +for the purpose of homicide. By a ‘weapon,’ as is remarked +by Gaius in his commentary on the statute of the Twelve +Tables, is ordinarily meant some missile shot from a bow, but +it also signifies anything thrown with the hand; so that stones +and pieces of wood or iron are included in the term. ‘Telum,’ +in fact, or ‘weapon,’ is derived from the Greek ‘telou,’ and +so means anything thrown to a distance. A similar connexion +of meaning may be found in the Greek word ‘belos,’ which cor- +responds to our ‘telum,’ and which is derived from ‘ballesthai,’ +to throw, as we learn from Xenophon, who writes, ‘they +carried with them ‘belei,’ namely spears, bows and arrows, +slings, and large numbers of stones.’ ‘Sicarius,’ or assassin, is +derived from ‘sica,’ a long steel knife. This statute also inflicts +punishment of death on poisoners, who kill men by their hateful +arts of poison and magic, or who publicly sell deadly drugs. +6 A novel penalty has been devised for a most odious crime +by another statute, called the lex Pompeia on parricide, +which provides that any person who by secret machination +or open act shall hasten the death of his parent, or child, or +other relation whose murder amounts in law to parricide, or +who shall be an instigator or accomplice of such a crime, +although a stranger, shall suffer the penalty of parricide. This +is not execution by the sword or by fire, or any ordinary form +of punishment, but the criminal is sewn up in a sack with a +dog, a cock, a viper, and an ape, and in this dismal prison is +thrown into the sea or a river, according to the nature of the +locality, in order that even before death he shall begin to be +deprived of the enjoyment of the elements, the air being +denied him while alive, and interment in the earth when dead. +Those who kill persons related to them by kinship or affinity, +but whose murder is not parricide, will suffer the penalties +of the lex Cornelia on assassination. 7 The lex Cornelia on +forgery, otherwise called the statute of wills, inflicts penalties +on all who shall write, seal, or read a forged will or other +document, or shall substitute the same for the real original, +or who shall knowingly and feloniously make, engrave, or +use a false seal. If the criminal be a slave, the penalty fixed +by the statute is death, as in the statute relating to assassins +and poisoners: if a free man, deportation. 8 The lex Iulia, +relating to public or private violence, deals with those +persons who use force armed or unarmed. For the former, +the penalty fixed by the statute is deportation; for the latter, +confiscation of one third of the offender’s property. Ravish- +ment of virgins, widows, persons professed in religion, or +others, and all assistance in its perpetration, is punished +capitally under the provisions of our constitution, by refer- +ence to which full information on this subject is obtainable. +9 The lex Iulia on embezzlement punishes all who steal money +or other property belonging to the State, or devoted to the +maintenance of religion. Judges who during the term of +office embezzle public money are punishable with death, as +also are their aiders and abettors, and any who receive such +money knowing it to have been stolen. Other persons who +violate the provisions of this statute are liable to deportation. +10 A public prosecution may also be brought under the lex +Fabia relating to manstealing, for which a capital penalty is +sometimes inflicted under imperial constitutions, sometimes a +lighter punishment. 11 Other statutes which give rise to such +prosecutions are the lex Iulia on bribery, and three others, +which are similarly entitled, and which relate to judicial ex- +tortion, to illegal combinations for raising the price of corn, +and to negligence in the charge of public moneys. These +deal with special varieties of crime, and the penalties which +they inflict on those who infringe them in no case amount to +death, but are less severe in character. + +12 We have made these remarks on public prosecutions only +to enable you to have the merest acquaintance with them, and +as a kind of guide to a fuller study of the subject, which, with +the assistance of Heaven, you may make by reference to the +larger volume of the Digest or Pandects. + + +THE END OF +THE INSTITUTES OF JUSTINIAN + + +Transcribed by +Howard R. 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