nience which might spring from it, belong to the subjects of tutelage and guardianship (tutela and curatela) and of summary prætorian remedies (restitutio in integrum), which will be treated fully in their proper place. (See Chap. v.)

(b) Women in certain cases. The disabilities attaching to women have already been treated of under the general head of sex, as a qualification of persons.

17).

(c) Lunatics (furiosi dementes) and persons otherwise disqualified by bodily infirmity, such as the deaf and dumb, so long as the condition of lunacy or other infirmity actually subsisted, and to the extent that it really dis- 1L. 48, D. (1. qualified the sufferer for the purpose in hand.1 A sudden fit of passion operated while it lasted in the same way as madness. This topic will be treated more fully under the general heading of guardianship (curatela).

19). L. 1, § 14, 15, D. (xliv. 7). L. 17, D.

L. 7, 8, J. (iii.

(xxviii. 1).

(d) Prodigals, that is, persons whom the prætor removed from the administration of their own affairs, on the ground that they were wasting the family property that had descended to them, in such a way as to ruin their successors. They were treated as lunatics, and D. (xxvii. 10), a guardian was appointed.

C. (v. 70).

(2) The recognized classes of impediments to doing a valid act, on the ground of their obstructing muscular motion, unduly weighting the will, or perversely misdirecting the intention, were ignorance, fraud, and force.

(a) Ignorance. A distinction was drawn between ignorance of a matter of fact and ignorance of the state of the law as affecting one's own rights and duties. The broad rule was, that the former sort of ignorance was held L. 2, 3, D. excusable, but not the latter sort. But ignorance (xxii. 6). as to matter of fact, in order to be excusable, must not be of a peculiarly gross kind. A certain, but not an excessive, amount of diligence in obtaining pertinent in- L. 9, § 2, D. formation was looked for. In respect of ques- (xxii. 6). tions of law, the ignorance or error was only excusable in cases where the immediate purpose of the person pleading

'L. 8, D. (xxii.

6).

2

* L. 9, pr. D.

it was to save themselves from loss, and not to make some fresh gain; and only certain classes of persons were enabled to plead it at all. These classes were persons under twenty-five years of age (except as to their illegal acts); women, soldiers, and persons of rude and uncultivated intellect (rusticitas).

(xxii.6). L. 22,

pr. C. (vi. 30). L. 8, C. (vi. 9).

L. 2, § 7, D. (xlix. 14).

(b) Fraud.

When a person is deceived by another as to the nature or the consequences of his acts, whether through insidious craft, mis-statements, untrue insinuations or wilful suppression of relevant facts, the victim of the deceit (dolus malus) was relieved of the whole or the part of the consequences of his act, as against the author of the deception. The relief was accorded either by a plea (exceptio) tendered in the course of the trial, or by an action (actio doli or de dolo).

L. 1, § 2, D.
(iv. 3). L. 43,
§ 2, D. (xviii.
1). L. 5, C.
(iv. 44). L. 4,
$33, D. (xliv.
3).

D. (iv. 2). L.
4, $33, D.
(xliv. 3).

(c) Force. The presence of force, or the menace of immediate force, impairs the freedom of the agent's will, and thereby converts what otherwise would be an act into a necessary event. Relief against the consequences of acts done under the pressure or apprehension of force was granted either by action or by plea, and the acts were thereby rendered invalid for all purposes and as against all persons. The apprehension must not be that of an exceptionally foolish or nervous person and it must extend to the life, person, liberty, or honour, of the person pleading it. The violence threatened must be such as it is meant positively to inflict in case of non-compliance, and the threat must proceed from the person who has direct control over the force which is to be exerted. Even when these conditions, however, were not satisfied, other legal remedies of a more or less extensive nature relieved those who acted under fear. There was an amount of pressure intermediate between violence and fraud, and which may be described as " undue influence," which invalidated acts and gave occasion for the return of money paid, or even for a considerable fine by way of penalty.

D. (iii. 6).
L. 2, 4, § 2,
D. (xii. 5).

II. The character or quality of a legal act.

It was sometimes convenient to characterize and classify acts by reference to the immediate causes from which they sprang, the circumstances which surrounded them, and their immediate consequences.

(1) Thus some acts, such as testamentary dispositions, the occupation of ownerless property, the acceptance or refusal of an inheritance, the management of business, a mere promise, implied the presence of a single agent and no more. Other acts, including every species of agreement and contract, and most modes of transferring property, implied the presence of two agents or more.

(2) Some acts simply procured an advantage (gratuita, lucrativa); other acts either procured no advantage, or only procured one in return for a proportionate sacrifice (onerosa).

(3) Some acts were done wholly in view of the interests of the living agent and in sole contemplation of life; other acts were done in contemplation of the death of the agent and in view of the interests of various representatives of him when he shall be dead (inter vivos and L. 25, D. (v. mortis causâ):

2).

(4) Some acts were done in pursuance of the rules of the jus civile, and others of those of the jus gentium; some acts were based on the strict letter of the law, and some on good faith (stricti juris, bonæ fidei); some acts required formality and precision in their execution, and others did. not (solemnia, munus solemne); some acts concerned the alienation or transfer of rights to another, other acts only concerned the renunciation or surrender of a right without imparting any title to another person (alienatio and renunciato). The general rule was, that in the case L. 4, C. (vi. of a right not yet acquired, a formal renuncia- 31). L. 1, §6, tion of it bound the person making it and D. (xxxviii. 9).

was irrevocable.

An act was especially a manifestation of the agent's will. But there were cases in which a manifestation of will was conveyed, or was presumed by law to be conveyed, by mere abstinence from action. Thus, consent might be

L. 142, D.

(xxiii. 1).

tacit as well as express, in cases where a legal or a moral duty of speech lay on the person who intended (1. 17). L. 7, not to consent. This was especially the case $ 1, L. 12, D. when the condition of persons was involved, as on parental consent to a marriage. So also certain rights, as servitudes or easements, might be lost by mere abstention to exercise them for a certain length of time; and rights might be retained by mere continuance L. 13, § II, of exercise, as in the case of holding over on D. (xix. 2). the expiration of a lease.

Generally the will might be manifested by any mode of communication which was practically effective for the purL. 38, D. pose, as by speech, by gesture, by writing, or by (xliv. 7). signs; but in certain cases the law determined beforehand the specific acts which would alone be accepted as sufficient manifestations of will, and, in other cases, imposed additional and special formalities which must be annexed to the essential act. In some cases, formal words and gestures; in many cases, writing; in some, "tradition," or handing over a thing, or a symbolic part of it; in some cases, the attestation of witnesses; in other L. 2, J. (ii. 7). cases, registration by a public authority (insinuatio); in others, an act of judicial authority ( jurisdictio voluntaria, as in the cases of adoption and manumission), were indispensable.

REPRESENTATION.

There were some cases in which an act could be effectually performed by a deputy or substitute. This substitution might be strictly limited to performing the physical movements in which the act consists, in exact conformity with the wishes and intention of the "principal," who is absent; or the substitution might extend to allowing the deputy some discretion of his own, as to when, how, and to what extent, to do acts of a certain class in the principal's name.

The first sort of substitution (per nuntium) was L. 15, D. (xiii. generally allowed, and was said to be only "ministerial." The second kind was allowed

5).

J. (ii. 9).

only on certain restrictions, which there had, however, in imperial times been an increasing tendency to relax. Corporate bodies and wards of different kinds were, of course, represented for almost all purposes by their proper official guardians. For all purposes of acquisition every one was effectually represented by his children, slaves, and other persons, whether really free or not, whom he bond fide held in his possession as slaves. The broad and earlier rule was, that no acquisition could be made by a free person for the benefit of another. But this rule was more and more qualified through the well- L. 2, C. (iv. recognized practice, fortified by the imperial 27). L. 3, J. (ii. 9). D. (iii. 3). legislation, of allowing the appointment of a special agent or "procurator," charged with a greater or less amount of responsibility, and with respect to a single piece of business or to all the business affairs of the principal.

The agent so appointed might, in Justinian's time, not only acquire possessions and rights of ownership generally for the benefit of his principal, but might acquire rights of pledge and mortgage, and rights of action generally. He could be appointed in the most informal or indirect way, differing therein from the earlier cognitor or attorney-atlaw, who could only be appointed by certain G. (iv. 83).

formal words.

In the case of a person undertaking the affairs of another (negotiorum gestio), whether for his benefit or otherwise, without express authorization, a subsequent approval of what had been done produced a retro-active effect and assimilated the act to one done with his previous L. 7, C. (iv. 28).

consent.

ILLICIT ACTS AND OMISSIONS.

Besides the acts out of which rights arose, by which they were exercised, or through which they were terminated, there were acts (or omissions, which are, in truth, only acts looked at from another side) which violated the rights of other persons, however those rights were grounded. These