t. 3, 20) went farther; for he decreed that just as the dos might not merely be increased but created during marriage, a donatio nuptialis might also be made after the celebration of nuptials. Hence he introduced the name donatio propter nuptias.

§ 4. There was under the old law, one mode of acquiring property which was the indirect result of a gift, namely, where a slave, the property of several owners, was enfranchised by one of them. Since a man could not be partly free and partly a slave, it was decreed that the nonenfranchising masters should be absolute owners by accrual (1), so that they might not be forced to surrender their property. But Justinian, thinking that nothing could be worse than to see a slave defrauded of his liberty, whilst his enfranchisement proved a loss to the more humane and a benefit to the more severe of his masters, abolished this jus accrescendi, and decreed that the slave should continue free, but that his non-enfranchising masters should receive a sum equal to their share in the slave, according to a scale fixed by the emperor (C. 7, t. 7, § 5).

TITLE VIII.-OF THOSE WHO CAN AND OF THOSE WHO CANNOT ALIENATE.

Pr. The power to alienate belongs in general to the proprietor and to him alone. Still there are proprietors who cannot alienate, and there are persons who can alienate though they are not proprietors.

§ 2. Pr. Among the persons who, although proprietors, cannot alienate, Justinian mentions the husband, who cannot alienate the prædium dotale, and pupilli.

The husband was proprietor of the moveables constituting the dos: but by the lex Julia (Paul Sent. ii. 21, 2) he could not, without the wife's consent, alienate the dotale prædium in Italy, nor hypothecate it, even with her consent (2).

Justinian, by abolishing all distinction between Italy and the Provinces, and between hypotheca and alienation, prohibited both, whether the wife did or did not consent, and wherever the land might be situate. Pr. The sole object of this prohibition was to secure the restitution of the prædium dotale to the wife. Hence the alienation was null only

(1) Provided the enfranchisement would have rendered the slave a Roman citizen, if it had been effectual (Ulp. i. § 18).

(2) Hypotheca was not an alienation: it merely authorised the creditor, if his debt was not paid, to alienate the thing charged; but the very fact that the hypotheca did not, like alienation, divest the property,

rendered women even less unwilling to give their consent; and this was a reason why the lex Julia was more severe against hypotheca than against alienation itself. The prohibition of the lex Julia applied only to prædium dotale. The moveables dotalia were always alienable.

as to the wife, and only in cases where she or her hæres, on the dissolution of the marriage, was entitled to resume the prædium.

§ 2. A pupillus can alienate nothing without the authority of his tutor. Therefore, in the case of a pupil making, without the tutor's authority, a loan of a thing to be consumed, called mutuum (B. 3, t. 14), there was neither mutuum nor the action raised by it. For there can be no mutuum unless the property is transferred to the borrower; and that the pupil cannot do: for he cannot alienate. Therefore he continues proprietor, and an action in rem is the only action he can have, so long as the thing lent exists in specie anywhere (sicubi extent).

§ 2. But there can be no action in rem if the thing lent is not in existence; what, then, was the remedy of the pupil? If the thing lent has been consumed bonâ fide, the pupil has a condictio, i.e., a personal action, in order to compel the defendant to give him an amount equal to the sum lent (1). If the sum of money has been spent malâ fide, the pupil has the action ad exhibendum, in which the defendant, finding it impossible, because of his own fraud, to produce the thing claimed, will be condemned to indemnify the pupil for the wrong occasioned by its nonproduction (2).

§ 2. But suppose a pupil received payment of a debt from his debtor, without his tutor's authority. In such case the pupil acquired the money, but the debtor was not discharged; for the pupil, though he could not alienate, could acquire without the tutor's authority. Hence he acquired the money, for it was delivered to him with the intention of transferring the property; but he could not discharge his debtor, for that would have been to alienate one of his claims. The debtor, therefore, remained bound, and might still be sued for the money a second time; but if the pupil retained the whole, or any of the money, or if, by judicious investment, the money turned out profitable to him, then the Prætor allowed the debtor the exceptio doli, so as to bar the action of the pupil to the extent of the profit derived.

§ 2. Even if the debtor paid with the tutor's authority, he was not entirely exempt from liability: when payment had been made to the tutor, or with his authority, the debt was in fact extinguished, and the pupil had only an action against his tutor; but if the tutor's insolvency rendered this action abortive, the prætor relieved the pupil in like manner as he relieved all under twenty-five, who had suffered loss, viz., by restoring them to their original position (restitutio in integrum).

(1) Here the condictio is raised, not by the mutuum, for there is none; but by the fact, that a delivery has been made with an intention which it has been found impossible to effectuate, ie., the consideration has failed; causâ data, causâ non secuta.

(2) In the condictio the defendant was liable to pay a sum equivalent to the sum received; in the actio ad exhibendum, he was liable to pay the damages, sustained by the plaintiff, who was himself entitled to fix the amount by his oath.

And thus the obligation, once extinguished, revived, and the debtor might be compelled to pay again.

§ 2. Justinian, however, allowed the debtor the means of protecting himself from liability, for he afforded absolute protection to a debtor (plenissima securitas, C. 5, t. 37, 25), if he paid with the tutor's authority, and with the permission of the judex. This permission was obtained without fee (sine omni damno). Nor was it required when the payment consisted of rents or of small sums.

§ 2. A pupil being incapable, by reason of his youth, of doing any act, it follows that if he pays a debt, the payment is invalid; for there can be no valid payment unless the property in the thing paid be transferred to the creditor, and so alienated. The pupil, therefore, retains the property, and may bring an action in rem to recover the thing transferred, but at the same time he continues bound by his obligation (1): if, however, the creditor has consumed the thing bonâ fide, the pupil is discharged, but at the same time deprived of his property.

§ 1. As to persons, not being proprietors, who may alienate. A creditor may alienate a thing pledged for a debt. Tutors and curators may in some cases alienate the goods of those under their tutela or curatela (G. 2, § 64); but they cannot, as a general rule, alienate prædia rustica without the magistrate's sanction.

§ 1. Properly viewed, a creditor's power to sell a pledge does not at all trench on the principle, that the proprietor alone can alienate: for such power was derived solely from the will of the debtor, by whose express or tacit consent it was that the creditor had the right to sell the pledge in case of non-payment. So essential is this right to the very existence of a contract of pledge, that any clause contravening it was held void. If, however, there was such a clause, the sale was always preceded by three notices (D. 13, t. 7, 4, 5, 6). The sale of pledges took place according to the forms settled by Justinian, unless the parties had themselves arranged the course of proceeding (C. 8, t. 34, 3).

(1) The pupil continuing liable, it is not obvious what can be the benefit to him of the invalidity of the payment. For it may be said that the creditor, after restoring what he has received, may sue for a fresh payment. But it must be observed that the pupil has often an interest in taking back what he has paid and continuing

bound; as, for instance, when his obligation is either to be executed after a time certain, or is a mere contract of surety; for in the one case it is his interest to put off executing it till the proper period arrives; in the other it is his interest to enjoy the benefit of discussio and divisio (B. 3, t. 20).

TITLE IX.—THROUGH WHOM ACQUISITIONS ARE MADE.

Pr. A Roman was capable of acquiring property not only through himself, but through those under his power (filii-familias and slaves): through slaves in whom he had the usufruct; lastly, through freemen and the slaves of others, being bonâ fide in his possession.

§ 1. Under the old law the pater-familias acquired through filiifamilias whatever was acquired by them. In each family there was only one patrimony, the property in which belonged to the pater-familias (qui in domo dominium habet); all the goods acquired by the filiifamilias formed part of it (1). No doubt the pater-familias sometimes gave the filius-familias a portion of the patrimony as a peculium; but the latter had the mere management of such portion, and only so long as the pater-familias allowed him.

In course of time, the Emperors allowed the filii-familias to have goods of their own, and thus arose the various peculia.

Peculium is a portion of goods distinct from the common patrimony; particular goods, bona peculiaria.

There were four kinds of peculia. 1. Peculium castrense, comprising everything acquired by a filius-familias on account of military service (D. 49, 17). 2. Peculium quasi-castrense, comprising all presents from the Emperor or Empress, and everything acquired in the exercise of civil or ecclesiastical duties (C. 12, 31). 3. Peculium profecticium, comprising everything derived by the filius-familias out of the property of the paterfamilias (ex re patris). 4. Peculium adventicium, comprising everything coming to the filius-familias, except from or through the pater-familias (ex alia causa); and we may add, not acquired by him in military service, or in the exercise of public functions (C. 6, t. 61, 6).

§ 1. The peculium profecticium is the only one in which the paterfamilias acquires the absolute property according to the old rule. In the adventicium (2) he has merely the usufruct and management, the bare property being reserved to the filius-familias; so that when the pater-familias dies, the goods constituting the peculium adventicium do not sink into the family property, to be divided amongst all the filii

(1) So Gaius says (2, § 96) that neither filii-familias nor slaves could acquire by the in jure cessio, because, being incapable of having anything of their own, they could not claim to recover the property.

(2) Justinian, by thus including all the bona adventicia, simply generalised the rule

originally adopted by Constantine (C. 6, t. 60), as to goods coming to the filius-familias from his mother, and which that emperor's successors extended to all goods left to filiifamilias by a maternal ancestor, by one married consort to the other, or by a betrothed man or woman to the other.

familias, but they continue in the filius-familias who has hitherto had the bare property. Of the castrense and quasi-castrense, the pater-familias has not even the enjoyment; they remain the absolute property of the filiusfamilias (vide, however, tit. 12, post).

§ 2. The right of the pater-familias over the adventicium ceased on the emancipation of the filius-familias. This right being a mere consequence of the patria potestas, ceased with it. But the Constitutions allowed the emancipating pater-familias to retain a third of the adventicia (quasi pro pretio quodammodo emancipationis). Justinian, instead of a third in absolute property, allowed the usufruct of the half.

§ 3. As the slave can have nothing of his own, the master unconsciously, and in spite of himself, acquires whatsoever is acquired by the slave by any title whatever.

§ 3. A slave never needed his master's permission in order to acquire, except in case of an hæreditas; for, since the acceptance thereof exposes a man to the risk of being obliged to pay all the debts of the deceased, it was decreed that a slave, on being appointed hæres by a stranger, should not become hæres except by his master's command (1).

When a slave belonged to several masters, the several masters were entitled, not, however, in equal shares, but in proportion to the rights of each in the slave.

§ 3. Property is not the only thing acquired through filii-familias and slaves; for through them a man may acquire the benefit of obligations incurred by others to them (B. 3, t. 17, 18), as well as possession, and the benefits incident to it, viz., usucapio and præscriptio.

But the master does not acquire through others the possession, as he does the property, unconsciously and against his will. For possession involves two elements: 1. The physical hold of a thing; and, 2. The intention to possess. A man may possess corpore alieno, but the intention to possess must exist, and that is essentially a personal thing (animo nostro). A master, therefore, never possesses through his slave and against his own will-nay, as a general rule, he does not possess unconsciously. But where a master has intrusted his slave with the management of a portion of his goods as a peculium (which was not uncommon), then, to avoid the inconvenience of the master being obliged continually to interfere in the management, such master was held to be the unconscious pos

(1) § 3. This was not required in order to the slave's accepting a legacy, because the legatee was not bound to pay the debts.

-Our remarks as to the slave apply to the filius-familias under the old law; but after peculia were introduced, the consent both of the pater-familias and filius-familias was required, in order to the acquisition of a

peculium adventicium, i.e., goods whereof the pater-familias has the usufruct and the filius-familias the bare property. Justinian decreed that the party refusing his consent, in such case should not share in the goods acquired, but that the consenting party should claim the whole profit, and be liable to the whole risk.