TITLE X.-OF THE ACQUISITION OF PROPERTY BY ADROGATIO.

Acquisition by adrogatio is a mode of acquiring an universitas, whereby the adrogator becomes proprietor of everything corporeal and incorporeal belonging to the adrogatus.

Pr. This mode of acquisition was introduced neither by the Twelve Tables nor by the Prætor, but by that general assent which constituted the unwritten law, and it was a consequence of that patria potestas vested in the adrogator by adrogatio (B. 1, t. 11).

§ 1. But adrogatio did not transfer every single right of the adrogatus to the adrogator: thus it did not transfer those rights which, being due to the patron personally, were extinguished by the minima diminutio capitis, viz., the rights of agnatio (1) and obligationes operarum (2).

§ 2. Moreover, the adrogator's rights over the goods of the adrogatus were limited in consequence of the modified effect of the patria potestas upon the goods acquired by filii-familias (B. 2, t. 9); for neither natural nor adoptive parents acquired more than the usufruct of the goods of the adrogatus. The adrogator, therefore, acquired no property therein unless the adrogatus died in the adopted family, leaving no descendant brother or sister; for then the adopted father succeeded like the natural father (B. 3, t. 2, prop. fin.).

§ 3. But the liabilities of the adrogatus did not attach to the adrogator as his claims did (3): the creditors of the adrogatus could not sue the adrogator directly, but they might do so indirectly in the name of the adrogatus. And if the adrogator refused to answer for the adrogatus, the creditors might seize on the goods of the adrogatus, in order to their being sold according to the forms of law.

(1) For the adrogatus became agnatus

to every member of the adrogator's

family; and as he could not be agnatus to two families at once, he ceased to be a member of his original family.

(2) I.e., officiales, services of duty; and fabriles, professional services for his patron's benefit. Most freedmen had a

profession.

(3) For though the pater-familias had the benefit of any liability incurred by any person to his filius-familias, the filiusfamilias could not bind his pater-familias, but the Prætor allowed him to be sued if he had benefited by the contract (B. 4, t. 7).

TITLE XI.-OF HIM TO WHOM GOODS ARE ADJUDGED IN ORDER TO MAKE ENFRANCHISEMENTS EFFECTUAL.

Pr. Besides the three modes of acquiring per universitatem, viz., hæreditas, possessio bonorum, adrogatio, there was a fourth, viz.: The adjudicatio of goods for the purpose of sustaining enfranchisements, introduced by a rescript of M. Aurelius.-When a testator in involved circumstances bequeathed freedom to his slaves, and the hæredes instituti refused to accept the hæreditas, the enfranchisement failed (caduca): if, moreover, there was no hæres ab intestato, and the treasury refused the succession, the creditors, as there was no successor, were allowed to sell the bona vacantia in the name of the deceased (vide tit. seq.). Now, by this rescript (1) either all or one of the slaves to whom the freedom was bequeathed, or even a third party, might have the goods adjudged to them, so that they guaranteed the whole debt to the creditors, and agreed to effectuate the enfranchisement.

§ 2. The goods having been thus adjudged, could not be sold as bona vacantia, because the person to whom they had been adjudged (defensor idoneus) was in the same position, with respect to them, as the debtor or his hæredes.

The slaves whom the hæres institutus was charged to enfranchise, were enfranchised by the defensor, and those whom the testator enfranchised directly became free, just as if the hæreditas had been accepted by the hæres institutus: so their patron was the deceased (B. 2, t. 24). But (§ 1) on demand of the defensor, and with the consent of the slaves whose condition was in question, the adjudication might be under the express condition that the defensor should be the patron of all the slaves enfranchised.

§§ 2, 4, 6. But this kind of adjudicatio did not take place when the deceased had not enfranchised any slave: it could only be made when it was ascertained that the deceased would not have a successor. For the object of the rescript was, 1st, to promote enfranchisement; 2nd, to protect the memory of a testator, by preventing his property being sold

(1) This is the history of the rescript : Virginius Valens, by his testament, gave several slaves their freedom. The hæredes instituti renounced, the testament was avoided, and the slaves remained slaves. Not only was there no hæres institutus by the testament, but there was no successor ab intestato, and so the goods would have been sold by the creditors, had not one Hopilius Rufus requested that they might

be conveyed to him, he undertaking to carry into effect all the bequests of enfranchisement, whether the slaves were enfranchised directly or by fideicommissum. M. Aurelius allowed him to appear before the magistrate to have the goods adjudged to him, on condition of his guaranteeing the creditors the whole amount of the debts due (§ 1).

in his own name. Therefore it applied only when some slave was enfranchised, or when there was no successor, because, if there was one, he would be answerable to the creditors, who would therefore no longer be allowed to sell in the name of the deceased.

§ 5. When everybody competent to succeed had renounced, there might be such an adjudication, though the renunciation might possibly be decreed null by a restitutio in integrum, which the Prætor might see fit to grant to minors of twenty-five years (B. 2, t. 8). And in case a successor (1) who had refused was restored, he was reinstated in the position he occupied before his refusal. But though he might resume the hæreditas, still he was not allowed to reduce to slavery those who, by the adjudication, had become free; for, liberty once granted, could not be revoked.

§ 3. The rescript of M. Aurelius mentions only enfranchisement by testament; but the same benefit was extended to cases in which the enfranchisement was by codicil. It was also extended to enfranchisements made mortis causâ and inter vivos; for then the defensor being answerable for all debts, no question could arise as to whether such enfranchisements were void, as made in fraud of creditors (§ 6).

§ 7. Justinian added to M. Aurelius' rescript by a Constitution to be found C. vii. 2, 15, Pr. 1.

TITLE XII.-OF SUCCESSIONS SUBLATÆ WHICH TOOK PLACE BY SALE OF GOODS, AND OF THE SENATUS-CONSULTUM CLAUDIANUM. Pr. Formerly there were other modes of acquisition per universitatem. One was by purchasing a debtor's goods after the order directing a missio in possessionem, i.e., a putting into possession for the benefit of creditors (bonorum emptio); the other took place under special circumstances, by virtue of the senatus-consultum Claudianum.

As to the first, according to Gaius (3, §§ 77-81), and Theophilus, the creditors might demand the sale of goods, either during the debtor's life, or after his death. During his life: 1. When he fraudulently concealed himself, so as to prevent the creditors from summoning him (in jus) before the magistrate (2); or when he was absent, and had left no

(1) E.g., a hæres ab intestato, under twenty-five.

(2) A suit began by the in jus vocatio. The plaintiff summoned the defendant before the magistrate. If the latter did not obey he might be forced. But as no one, even a creditor, could enter a citizen's

house which was his castle, the debtor had only to shut himself up to avoid the suit and the judgment. Hence the Prætor decreed that the plaintiff should be put into possession of the goods of him qui fraudationis causá latitat (B. 4, t. 6).

one to represent him (nec absentes defenduntur) (1); or when, being before the magistrate, he refused to plead, and to become a party to the action. 2. When he was condemned, but did not comply with the judgment within the proper time (2). 3. When there had been a cessio bonorum by the lex Julia (2). After his death, when no one appeared as his successor.-In all these cases the creditor or creditors got from the Prætor a decretum which put them into possession of all the debtor's goods; but this decretum did not vest the property in the creditors; the missio was simply that the goods might be kept as a pledge, and be ready for sale (3), (missio in possessionem rei servanda causâ); it continued for thirty days when the debtor was alive, for fifteen when he was dead. During that period the sale was advertised (libellis) by placards, in this form: "A., our debtor, is insolvent; we, the creditors, are selling his property; let any purchaser appear." Thus, the creditors who had not yet appeared had notice. After such period one of the creditors was chosen by the rest magister; and after the lapse of another period, and further advertisements, describing the conditions of sale (lex bonorum vendendorum) in this form: "The purchaser will undertake half the debtor's debts; so that he to whom one hundred solidi are due, shall receive fifty, and he to whom two hundred are due shall receive one hundred," such agent (magister) adjudged the goods to the party who promised the creditors the largest dividend.

The effect of this sale was that the purchaser (bonorum emptor) succeeded per universitatem to the debtor, i.e., he became entitled to all his rights, and liable for such a percentage of the debts as was fixed by the conditions of sale. He did not acquire quiritarian ownership of the goods sold, but had them in bonis. He sued and was sued by an actio utilis (not civilis), like a possessor bonorum, for both possessor and emptor were successores by the Prætor's edict.

But this bonorum emptio was not used in the later period of the law.

(1) When a vindex or defensor appeared for the defendant, undertaking to pay the judgment, the suit was against the new defendant. But the missio against an absent person was annulled, on good reason being shown.

(2) Vide p. 9 as to addictio. Instead of the addictio, the lex Julia allowed the debtor to get rid of the personal constraint by surrendering everything to his creditors. It would have been useless to add any execution on the goods in addition to the cruel treatment allowed to the creditor over the person of his debtor; hence no such execution was used in the early times, except in certain special cases, when the creditor was entitled to seize as a pledge

the goods of the debtor. The Prætors, however, to get rid of personal constraint, introduced the missio in possessionem, which allowed the goods of the debtor to be seized in satisfaction; hence addictio became less common.

(3) If the party put into possession was resisted, the Prætor would grant him an interdict, or he might call upon the officers of justice. Per viatorem aut per officialem præfecti, aut per magistratus introducendus in possessionem (D. 36, t. 4, 5, § 27). A certain infamy was attached even after death, to a debtor against whom there had been a missio; but the deceased debtor might avoid it by appointing a slave hæres.

By the missio, parties were still put into possession, but the goods were not sold in the mass as an universitas; nor did the purchaser succeed per universitatem to the debtor. The things were sold separately by a curator bonorum appointed by the magistrate with the creditors' sanction, and the price received was divided among them (1). When the value of the goods exceeded the debt, the creditor was not put into possession of the whole (universitas), but only of as many as would cover his claim (D. 27, 10).

As to the senatus-consultum Claudianum (A.D. 52). By virtue of this senatus-consultum (Tac. Ann. B. 12, c. 53) an universitas was transferred when a freeborn woman insisted on cohabiting with a slave, notwithstanding the remonstrances of his master; the woman became a slave, and all her property vested in the master by virtue of the potestas dominica. Justinian abolished this, as unworthy of his age.

TITLE XIII.-OF OBLIGATIONS.

Pr. An obligatio (2) is a legal tie binding a man personally (3), by

(1) Justinian says, that the sale of goods, as a succession per universitatem, was part of the judicia ordinaria, i.e., when it was requisite to go to the Prætor in order to get an actio and a judex, and that such sale ceased when all judicia became extraordinaria, i.e., when the cause was not sent by the Prætor to the judex. The missio was the effect of the Prætor's imperium (B. 4, t. 6).

(2) An obligation, considered with reference to the passive subject, viz., the person bound (debitor), is called obligatio (ligo, I bind), and in the old law nexum : with reference to the active subject, viz., the person claiming a benefit under it, it is called nomen or creditum.

(3) The obligatio creates a tie or relation between two individuals (vinculum speciale); it gives rise to a personal, as distinct from a real right; and the importance of this distinction is obvious, if we consider that the difference in the right creates a difference in the action enforcing it. The existence of every right implies a duty on the part of every individual to abstain from any act which can interfere with its exercise; and in this respect personal rights or obligations (proper) do not differ from real rights, for a third party is no more entitled to interfere with me in

the exercise of my rights against my debtor, than to hinder me in the enjoyment of my property, But the difference between real and personal rights lies here: real rights bring us into contact with their subject-matter, but do not bind any person to us-do not subject any other person to more than the general duty of non-interference, whereas personal rights consist essentially in the relation between the creditor and debtor personally. It is this personal tie of dependence which constitutes the obligatio proper. Hence the commentators say a personal obligation is jus ad rem (a right to a thing), for the claimant is not directly connected with the subject-matter of the obligation a real obligatio is jus in re (a right in a thing), because the claimant is so connected. These expressions, however, are not so used in the texts. Again, real rights are sometimes called absolute, because they have an actual existence for everybody, and everybody is equally bound to recognise them, whilst personal rights are called relative, because of the personal ties which they create. Property and its integral parts-servitus, hypotheca, superficies, emphyteusis-are real rights; to which we may add those constituting the status of persons.