It was otherwise when error did not appear in an isolated form, but rather as the result of a fraudulent manoeuvre practised by the other party. (dolus malus) 1). Doubtless, it must be admitted, in this case also, that volition exists 2); but the law could not permit that confidence, which is the soul of commerce, should be diminished or betrayed by deceit and fraud; 3) or that the deceiver should, without substantially just cause, enrich himself at the expense of him whom he had deceived. The Law gave therefore, according to circumstances, various means of counteracting the prejudice suffered 4), or of depriving the act tainted with fraud of the whole or a part of its effect 5).

1) As to the notion of dolus, see L. 1. § 2. § 3. D. de dolo. (4. 3). L. 7. § 9. D. de pact. (2. 14). "Dolus malus fit calliditate et fallacia quoties circumscribendi alterius causa, aliud agitur et aliud agi simulatur." There might also be dolus malus on the part of him who was silent when it was his duty to speak. L. 43. § 2. D. de contr. emt. (18. 1). "Dolum malum a se abesse praestare venditor debet: qui non tantum in eo est, qui fallendi causa obscure loquitur, sed etiam qui insidiose obscure dissimulat."

2) On this point, also, an entirely opposite opinion was formerly held. See Vangerow III. § 605. Sav. 1. c. p. 116; Windscheid, § 78. note 5.

3) L. 5. C. de resc. vend. (4. 44). "Si dolo adversarii deceptum, venditionem praedii te fecisse Praeses Provinciae aditus animadvertit: sciens contrarium esse dolum bonae fidei, (quae in hujusmodi maxime contractibus exigitur) rescindi venditionem jubebit.”

4) By means of an exceptio doli, which, in case of actions in good faith (bonae fidei actiones), had no need to be proposed in jure before the Praetor; bonae fidei judiciis inest L. 7. § 6. D. de pact. (2. 14). L. 3. D. de resc. vend. (18. 5). L. 21. D. sol. matr. (24. 3). L. 84. § 5. D. de leg. I. (30).

5) By the actio doli or de dolo, which deprives the act either of its entire effect or of some of its consequences only. This difference served as the basis of the distinction between what was called dolus causam dans and dolus incidens L. 11. § 5. L. 13. § 5. D. de act. emt. vend. (19. 1). There is between the effects of constraint and those of deceit this difference; that he who is the victim of violence is protected, by the law, even against innocent third parties, while the victim of deception is protected only against the author of the deception. L. 9. § 8. D. quod met. causa (4. 2). L. 4. § 33. D. de dol. mal. exc. (44. 3).

SECTION III.

Of legal (juridical) acts, in particular.

§ 53. GENERAL IDEA, AND SUBDIVISION.

Those were called legal acts (negotia) which had for their object the creation, modification, or extinction of legal relations, and without which those effects would not have been produced. L. 33. D. de cond. ind. (12. 6). L. 17. § 3. D. comm. (13. 6). L. 2. § 1. 2. D. de O. et A. (44. 7). L. 83. pr. D. de V. O. (45. 1). L. 5. D. de R. J. (50. 17).

The true notion of a legal act supposes, therefore, the union of two conditions: I. That the will (intention) be directed towards the production of the legal effect '); II. That the legal effect be not produced independently of the intention 2).

Legal (juridical) acts were divided:

1) It mattered little whether the will (intention) were directed, also, toward other objects, or what was its principal object. Acquisition by hunting or fishing, as well as what is termed rem pro derelicto habere, are certainly legal acts, as is also the management of the business of another without his authority. Wächter, II. p. 635. note 2. Unger, § 78. note 2. Savigny. III. p. 6. g. denies this; but he is in contradiction with L. 17. § 3. D. Commod. (13. 6). "Geritur enim negotium invicem et ideo propositae sunt actiones, ut appareat, quod principio beneficii ac nudae voluntatis fuerat, converti in mutuas praestationes actionesque civiles: ut accidit in eo qui absentis negotia gerere inchoavit."

2) Wächter, (1. c.) insists particularly upon this important point. He justly observes, that, on the one hand, the loss of a right by the effect of prescription, (lapse of time), even when one has willed this loss, and on the other hand the fact of unjustly causing damage to another, do not constitute legal acts, because in both these cases the legal effect would be produced just as well without the volition of him who loses the

I. Into unilateral and bilateral. (Negotia unilateralia et bilateralia). The unilateral act was that of which the formation and the purport were the emanation of one sole will, even though the will of another might be neccessary to give it entire effect: as, for example, a testament 1). The act was bilateral when it required the concurrence of two distinct parties, each acting for himself. In this case there was an agreement, or convention. (paclio, conventio). An An agreement (convention) may, there fore, be defined as follows: "the accord or concurrence of

the will (volition) of two, or of several, distinct persons, reciprocally declared and serving to regulate legal relations;" and it is made available not merely in the matter of obligations, but throughout the whole realm of law, whether public 2) or private 3). L. 1. § 2. 3. D. de pact. (2. 14). "Et est

right or causes the damage; and that, consequently, that volition is, here, an unimportant and superfluous element. It is susprising that Wächter and those who agree with him have not invoked in support of their opinion the L. 33. D. de cond. ind., which develops and applies this principle as clearly as it is possible to do. He who builds, in good faith, upon anothers land, has no claim to restitution of what he has expended, even though he has put the owner of the land into possession of the building. "Sed etsi is qui in aliena area aedificasset, ipse possessionem tradidisset." And what is the reason assigned by Julian? "Quia nihil accipientis faceret, sed suam rem dominus habere incipiat;" which means, that even when he who had made the surrender had proposed to effect it only in return for an equivalent to be subsequently received, his volition would be inoperative, because without it the owner of the soil would not the less have acquired the ownership of the buildings. It is otherwise as to the condictio indebiti, where it is only upon payment that the property is transferred, so that the transfer is effected only in consequence and by virtue of the will of him who pays. "Is qui non debitam pecuniam solvit, hoc ipso aliquid negotii gerit. Cum autum aedificium in area sua ab alio positum dominus occupat, nullum negotium contrahit." However, the definition of a "legal act" is still a subject of controversy among modern authors. Arndts, § 63. obs. 1. Windscheid, s. 69. obs. 1.

1) Among unilateral acts, besides testamentary dispositions, were the acceptance and refusal of inheritances; occupation; negotiorum gestio; and also (by Roman law) the pollicitatio. L. 3. pr. D. de pollicit. (50. 12).

2) Gaius, III. § 94.

3) It was thus that real rights could be established or extingushed by an agreement or convention; and thus again a surrender (tradition) is an agreement. Family rights and rights of inheritance may be founded on an agreement;

and, finally, marriage

pactio duorum pluriumve in idem placitum consensus. Conventionis verbum generale est, ad omnia pertinens de quibus negotii contrahendi transigendique causa consentiunt qui inter se agunt nam sicut convenire dicuntur, qui ex diversis locis in unum colliguntur, et veniunt, ita et qui ex diversis animi motibus in unum consentiunt, id est in unam sententiam decurrunt. Adeo autem conventionis nomen generale est, ut eleganter dicat Pedius, nullum esse contractum, nullam obligationem, quae non habeat in se conventionem, sive re, sive verbis fiat; nam et stipulatio, quae verbis fit, nisi habeat consensum, nulla est.”

II. Into acts "onerous" and "non-onerous." (onerosa, gratuita, lucrativa). The first were those which in return for an advantage imposed a sacrifice; the others those which procured an advantage gratuitously 1).

III. Into acts between living parties, and acts in case, or on account, of death. (inter vivos, mortis causa). L. 25. pr. D. de inoff. test. (5. 2). The latter were those by which a person made, for the event of his death, arrangements or dispositions concerning his affairs and his property: - dispositions which his death confirmed, the moment it occurred.

IV. Finally legal acts were divided into acts founded on the jus civile and acts founded on the jus gentium; into acts of strict law and acts of good faith; into acts solemn and

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is an agreement. Before Savigny (Syst. III. § 141), this general character of the agreement or convention was to a great extent unrecognised by both jurists and legislators. See, for example, the Prussian law, Part I. Tit. V. § 1 and 2; Code Nap. art. 1101, and Marcade's observations thereon; (although this author promulgates erroneous notions as to Roman Law); — and finally, the Neth. Code, which treats of conventions only in art. 1349, and therefore seems to recognise them only as sources of obligations, which is direct contradiction to the provisions of arts. 801, No. 2, and 854, No. 4, where conventions appear as a means by which real rights may be extinguished. See Unger, § 93. Wächter, II, pag. 650. Arnds, § 63. obs. II. Exner, Die Lehre vom Rechtserwerb durch Tradition (Wien. 1867) pag. 5, note 8.

1) L. 13. § 15. D. de act. emt. et vend. (19. 1). "Si fundum mihi alienum vendideris, et hic ex causa lucrativa meus factus est." L. 4. § 29. D. de doli mali exc. (44. 4). "Cum lucrativam causam sint nacti." § 6. I. de leg. L. 82. § 4. D. de leg. I. The expression "ex causa gratuita acquirere" is not to be found in the primitive sources.

not solemn. (Negotia juris civilis, juris gentium, stricti juris, bonae fidei, solennia, minus solennia).

An important place among legal acts was occupied by the alienation and renunciation of rights. (Alienatio, renuntiatio). In a general sense, alienation was any act, by which a right of any nature was abandoned, even though the abandonment implied no transfer of the right to another person 1). L. 5. § 8. D. de reb. eorum. (27. 9). "Fundum legatum repudiare pupillus sine praetoris auctoritate non potest. Esse enim et hanc alienationem, cum res sit pupilli nemo dubitat"). In a more limited sense, alienation was the act by which one person transferred to another something which he owned, --or by which a person restricted or narrowed his right of ownership, by giving to another a right over that which was his. L. 1. C. de fund. dot. (5. 23). "Est alienatio omnis actus per quem dominium transfertur." L. 7. C. de rebus alien. (4. 51). "Sancimus: sive lex alienationem inhibuerit, sive testator hoc fecerit, sive pactio contrahentium hoc admiserit, non solum dominii alienationem, vel mancipiorum manumissionem esse prohibendam; sed etiam ususfructus dationem vel hypothecam, vel pignoris nexum penitus prohiberi. Similique modo, et servitutes minime imponi nec emphyteuseos contractum nisi in his tantummodo casibus, in quibus constitutionum auctoritas, vel testatoris voluntas, vel pactionum tenor, qui alienationem interdixit, aliquid tale fieri permiserit." L. 3. § 5. D. L. 5. D. de fund. dot. (23. 5). L. 3. § 5. D. de reb. eorum (27. 9). In a broad and little used acceptation, the term alienation was also applied to the loss of a right already created, if the loser had knowledge of it, even though the loss might have been caused independently of his volition. (L. 8. D. de V. S. (50. 16). "Alienationis verbum etiam usucapionem continet; vix enim est, ut non videatur alienare qui patitur usucapi').

1) According to Unger (§ 94. note 4). abandonment of possession did not constitute alienation; but I cannot concur in this view. The passages which he cites. viz. L. 119. de R. J. and L. 4. § 1. D. de alien. jud. mut. causa. (4. 7). "non alienat qui duntaxat omittit possessionem," exclude only fraud, because the alienation did not take place "ut molestus adversarius subjiceretur."