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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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