death. It was also held on grounds of utility, that anything done by the mandatarius whilst ignorant of the mandatum being revoked, or of the death of the mandator, should be valid (1).

3. (§ 11). By the renunciation of the mandatarius, provided it was not made at an unseasonable time. For when the mandator was not informed in such time as to enable him personally or by agent to do that which the mandatarius was commissioned to do, he was prejudiced. Liability, therefore, continued (actio mandati locum habet), unless the mandatarius had a good excuse, as illness, or the insolvency of the mandator, for the mandatarius was not bound to sacrifice his own interests for those of the mandator.

TITLE XXVII.-OF OBLIGATIONS ARISING AS IF THERE HAD BEEN A CONTRACT (QUASI EX CONTRACTU).

Obligations arise quasi ex contractu when they arise, without any agreement in fact, out of certain circumstances, for the existence of which no one is to blame, and to which special provisions of law have attached such an effect as to make them bind the parties, in the same way as if there had been a contract between them (2).

Such are the obligations arising out of the conduct of a business (negotiorum gestio), or tutela, or the joint-ownership in a particular thing, or a hæreditas not partitioned, or the existence of a legacy, or the receipt of that which is not due.

As to the negotiorum gestio and the obligations and actions arising out of it.

§ 1. Negotiorum gestio was when a person mixed himself up voluntarily with the business of others, by managing or acting for them without their knowledge (3). The business being carried on in fact, the

(1) § 10. E.g., Suppose my debtor, in ignorance that I have enfranchised the slave who has charge of my receipts, pays him money, the debtor is discharged, although the enfranchisement of that slave involves the tacit revocation of the mandatum to my debtors to pay the money to that slave.

(2) Obligations arise chiefly out of contracts and wrongs, and produce different effects in either case. But there are others arising out of neither contracts nor wrongs, which nevertheless are assimilated sometimes to those arising out of a contract, sometimes to those arising out of a wrong. When neglect is imputed, the party is bound quasi ex delicto (subaud. teneretur): and in other circumstances he is bound

quasi ex contractu. An obligation, therefore, is said to arise as if out of a contract, not because it arises out of a presumed consent attributed to the party liable, but because it involves the same consequences as if it arose out of a contract. Thus, how can it be presumed that the hæres, who is bound by the mere existence of a legacy, has consented to any liability, when he is hæres necessarius? Therefore it is not the set of circumstances (facta) out of which the obligation arises which is assimilated to a contract, but the obligation itself and its effects which are assimilated to those arising out of such contract.

(3) Without their knowledge. If the master knew of the interference in the business, and did not object, there was a

manager (gestor) and the principal, although no contract existed between them, were bound to each other. This doctrine was founded on public convenience, so that the business of absent persons might not be left uncared for when unforeseen necessity compelled them to leave in such haste that they had no time to commission an agent. For no man would undertake another's business unless monies advanced by him could be recovered.

The manager was bound to complete the business he had begun, to bring to the conduct of it all the care and prudence of a good pater-familias, to render an account and to pay over the excess of receipts over expenses, with interest for the remainder which he ought to have laid out. All this he was bound to do by the actio directa negotiorum gestorum. On the other hand, the dominus (he whose business is carried on) was bound, even without his knowledge or consent, to repay the manager, not indeed all sums expended, but all expended for purposes really useful at the time; to recover which the manager had the actio contraria negotiorum gestorum against his principal.

§ 8. According to the same principle the tutor was liable for everything done and omitted to be done by him; and generally for even a slight neglect (D. 26, 7, 33, & 26, 7, 7, § 2). An actio directa tutelæ lay against the tutor when the guardianship was closed, either by the pupillus reaching full age, or otherwise (B. 1, t. 21). Again, the tutor had an actio contraria tutelæ against the pupillus, in order to indemnify himself against all expenses incurred and engagements contracted by reason of the guardianship (1).

§ 2. So the curator had the actio negotiorum gestorum utilis to recover all his reasonable expenses on account of the curatorship.

§§ 3, 4. So when a thing belonged in joint property to several not being partners (B. 3, t. 25), he who took the fruits thereof was bound to account for them to the others, who, on their parts, were bound in proportion to their respective shares to indemnify him for any money spent on the joint property. Such obligations raised, as between the joint proprietors, the action communi dividundo; as between co-hæredes the action familiæ erciscundæ (B. 4, t. 17).

The managing joint-proprietor was liable for lata culpa; i.e., he was bound to bestow the same diligence as is usually bestowed by a man on his own business. Observe, however, that the negotiorum gestor was responsible for slight neglect, because the manager (gestor) had no joint interest in the property (t. 25).

tacit mandatum. If the master knew and forbad the party's interference, such party had no action for anything done after such notice nor could he recover any sum spent

by him animo donandi.

(1) Here the pupil is bound without the tutor's auctoritas, which he cannot give in his own cause.

legacy bequeathed by the Since his liability to the

§ 5. The hæres was bound to pay the deceased, by the action ex testamento (1). legatee arose neither from an agreement nor a wrong, and yet resembled the former in its effects, it is said to be an obligatio quasi ex contractu (2).

§ 6. The receiver of something not due by reason of a payment erroneously (3) made was bound to restore it by a personal action condictio indebiti (4).

If a man paid with knowledge that nothing was due, he had not condictio; but he was assumed to have made a gift.

Again, if the man who paid was only morally bound to pay, he was not entitled to the condictio indebiti; for it was not allowed, except where the purpose for which the payment was made had failed; but here the man discharges an obligation to which he is bound by natural justice, so that the payment attains its object (B. 3, t. 13).

Nor was the condictio indebiti allowed to one incapable of alienating, in order to recover something which he had apparently transferred; the object of the condictio being to transfer the property to the plaintiff, the defendant must be assumed to be proprietor. But one incapable of alienation could not vest the property of a thing in him to whom it was delivered so that the property remained in the alienor; hence the proper form of action was not the condictio but vindicatio (which assumed the property to be in the plaintiff), so long at least as the things continued in esse; for after they were consumed bonâ fide, the incapable alienor had the condictio indebili against the receiver (p. 110).

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Nor did payment of that which is not due to a person incapable of binding himself raise a condictio. Thus the pupil who receives without his tutor's authority that which is not due to him is not liable to the condictio, except for the amount of profit derived at the time of the litis contestatio.

§ 7. Again, there are cases where payment of that which is not due raises no action. Thus when the payment is made in pursuance of an agreement, in order to avoid a suit, however frivolous; for the payment

(1) This obligation does not arise by aditio, for there are some hæredes, viz., necessarii without aditio (B. 2, t. 13). Even though the legacy be per vindicationem, the legatee may bring either a personal action ex testamento against the hæres, or an action in rem for the property.

(2) But as to creditors of the hæreditas, the hæres was liable to them, not by any new action, but by the same obligatio which bound the deceased; for the action against the deceased passed by operation of law to the person of the hæres; observe,

therefore, it was identically the same cause of action.

(3) By mistake of fact at least.

(4) This is the condictio (proper) by which one claims that another shall transfer to him the property in a thing (dare oportere). Hence the delivery of a thing, though not due, clearly transferred the property, subject to the liability on the receiver's part to restore it. Condictio always lay when property had been transferred on a consideration which had failed (sine causa or causa data, causa non secuta) (B. 3, t. 13).

has in such case a purpose. purpose. Thus, there are some obligations which the defendant cannot deny without making himself liable to the condemnatio dupli (B. 4, t. 6); for instance, legacies per damnationem before Justinian's time, and after his time legacies for pious purposes, ie., made on behalf of churches and other places of devotion. Now, if from the fear of being made to pay double by reason of the uncertainty of human judgment, the hæres pays such legacies, even though they be not legally due, he cannot claim anything back, because he has not paid without some reason, the reason being to avoid the chance of a suit, and for peace.

TITLE XXVIII.-THROUGH WHOM OBLIGATIONS ARE ACQUIRED.

The same persons who acquire property for us acquire for us also obligationes; i.e., the right to bring actions to enforce claims; in short, through them we become creditors. It is unnecessary, therefore, to apply to the acquisition of obligationes what has been already said (B. 2, t. 9) as to the acquisition of corporeal Things through our filiifamilias and slaves, or through the slave, of whom we have the usufruct, or the usus; or, lastly, through a freeman or a slave, of whom we have the bonâ fide possession (B. 2, t. 9). In applying, however, the doctrine of a pater-familias acquiring obligationes, through his filius-familias, to the various peculia, we must observe, that Justinian bestows upon the pater-familias the usufruct, and upon the filius-familias the bare property in the thing to be recovered under a claim for the peculium adventicium; nevertheless, the pater-familias alone is entitled to sue (actionem movet) for such peculium; and it is the thing recovered, not the jus crediti, which is to be divided into bare property and usufruct. Moreover, a man cannot acquire any obligatio by procurator, as he may acquire possession (B. 2, t. 9), nor can one contract for any person who is a stranger to his family (B. 2, t. 9, § 4).

TITLE XXIX.-OF THE EXTINCTION OR DISSOLUTION OF OBLIGATIONS.

As to the modes in which an obligation may be extinguished: there is a distinction between those recognised by the Civil Law, which dissolve the obligation directly and absolutely, so that there is no longer a right of action; and those which dissolve it only indirectly, by means of an exceptio, which the debtor is entitled to demand of the Prætor in order

to repel the creditor's action (B. 4, t. 13). . In the first case, the obligation is dissolved ipso jure: in the second, exceptionis ope.

confined to the former.

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This title is

Justinian mentions four ways whereby obligations are extinguished ipso jure 1. Solutio; 2. Novatio; 3. Acceptilatio; 4. Mutual Consent (1). There are, besides, 5. Confusio; 6. Compensatio; 7. Tender (oblatio), followed by payment into court (obsignatio, depositio); 8. Accidental loss of the thing due (B. 3, t. 14, § 2).

Pr. (1.) Solutio generally denotes every kind of discharge; but it is used here in a restricted sense, to denote the performance of that to which a person is bound.

Pr. Solutio or payment must be made by one capable of alienating that which he gives (B. 2, t. 8); but it matters not whether it be made by the debtor or by another in his name, at his request, without his knowledge, or even against his will (2). The payment so made not only discharges the debtor, but also the debtor's sureties.

Pr. Payment must be made either to the creditor who is capable or duly authorised; or to a person authorised by the contract itself (B. 3, t. 19, § 4), by a mandatum, or by virtue of his position as tutor or curator. It may be made independently of the will of the creditor, provided the whole debt be paid; for a man can neither pay one thing in place of another (3), nor part of a demand, without the creditor's consent.

§ 3. (2.) Novatio consists in substituting a new obligation, either natural (4) or civil, for an original liability. It operates by means of a stipulatio, concluded to the intent that it shall be substituted for an existing obligatio; and since the fact of this intention is a matter to be proved by presumptions more or less conclusive, Justinian decreed that such intention should be formally expressed, and that, if not, the stipulatio should create a new obligatio without extinguishing the original

one.

§ 3. Novatio might be effected by substituting a new debtor for the old one who was discharged. This was effected by a stipulatio concluded between the creditor and the new debtor, either without the knowledge,

(1) The two first dissolve any obligation : acceptilatio only verbal obligations: mutual consent only consensual obligations.

(2) He who pays against the debtor's will, cannot claim back the money paid, unless the creditor has assigned to him his right of action.

(3) Justinian, however, allowed a debtor who could not find money to give his goods.

(4) A natural obligation (B. 3, t. 13) may be substituted by novatio for an original obligation. The text (§ 3) mentions the case

of a pupil operating a novatio without his tutor's authority; but we must presume that the pupil has been benefited by the change, for without authority he cannot bind himself naturally. A slave's promise, though it raises a natural obligation, cannot work a novatio: for though a slave may have a promise made to him for his master's benefit (stipulari), he cannot himself promise so as to bind his master (B. 3, t. 17, t. 19).