Page images
PDF
EPUB

they were bound to pay. It is open to every one to decline a 11 commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the principal to carry out his purpose either personally or by the appointment of another agent. Unless the resignation is made in such time that the principal can attain his object without suffering any prejudice, an action will lie at his suit, in default of proof by the agent that he could not resign before, or that his resignation, though inconvenient, was justifiable.

A commission of agency may be made to take effect from 12 a specified future day, or may be subject to a condition. Finally, it should be observed that unless the agent's services 13 are gratuitous, the relation between him and the principal will not be agency proper, but some other kind of contract; for if a remuneration is fixed, the contract is one of hiring. And generally we may say that in all cases where, supposing a man's services are gratuitous, there would be a contract of agency or deposit, there is held to be a contract of hiring if remuneration is agreed upon; consequently, if you give clothes to a fuller to clean or to finish, or to a tailor to mend, without agreeing upon or promising any remuneration, you can be sued by the action on agency.

TITLE XXVII.

OF QUASI-CONTRACTUAL OBLIGATIONS.

Having enumerated the different kinds of contracts, let us now examine those obligations also which do not originate, properly speaking, in contract, but which, as they do not arise from a delict, seem to be quasi-contractual. Thus, if one 1 man has managed the business of another during the latter's absence, each can sue the other by the action on uncommissioned agency; the direct action being available to him whose business was managed, the contrary action to him who managed it. It is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obliga

tion even though he knows nothing of what has taken place. The reason of this is the general convenience; otherwise people might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected: and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing. Conversely, as the uncommissioned agent, if his management is good, lays his principal under a legal obligation, so too he is himself answerable to the latter for an account of his management; and herein he must show that he has satisfied the highest standard of carefulness, for to have displayed such carefulness as he is wont to exercise in his own affairs is not enough, if only a more diligent person 2 could have managed the business better. Guardians again, who can be sued by the action on guardianship, cannot properly be said to be bound by contract, for there is no contract between guardian and ward: but their obligation, as it certainly does not originate in delict, may be said to be quasicontractual. In this case too each party has a remedy against the other not only can the ward sue the guardian directly on the guardianship, but the guardian can also sue the ward by the contrary action of the same name, if he has either incurred any outlay in managing the ward's property, or bound himself on his behalf, or pledged his own property as security for 3 the ward's creditors. Again, where persons own property jointly without being partners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses: here the defendant cannot properly be said to be bound by contract, for there has been no contract made between the parties; but as his obligation is not based on delict, it may be said to be quasi-contractual. 4 The case is exactly the same between joint heirs, one of whom is liable to be sued by the other on one of these grounds in 5 an action for partition of the inheritance. So too the obligation of an heir to discharge legacies cannot properly be called

:

contractual, for it cannot be said that the legatee has contracted at all with either the heir or the testator: yet, as the heir is not bound by a delict, his obligation would seem to be quasi-contractual. Again, a person to whom money not 6 owed is paid by mistake is thereby laid under a quasi-contractual obligation; an obligation, indeed, which is so far from being contractual, that, logically, it may be said to arise from the extinction rather than from the formation of a contract; for when a man pays over money, intending thereby to discharge a debt, his purpose is clearly to loose a bond by which he is already bound, not to bind himself by a fresh one. Still, the person to whom money is thus paid is laid under an obligation exactly as if he had taken a loan for consumption, and therefore he is liable to a condiction. Under certain 7 circumstances money which is not owed, and which is paid by mistake, is not recoverable; the rule of the older lawyers on this point being that wherever a defendant's denial of his obligation is punished by duplication of the damages to be recovered as in actions under the lex Aquilia, and for the recovery of a legacy-he cannot get the money back on this plea. The older lawyers however applied this rule only to such legacies of specific sums or objects as were given by condemnation; but by our constitution, by which we have assimilated legacies and trust bequests, we have made this duplication of damages on denial an incident of all actions for their recovery, provided the legatee or beneficiary is a church, or other holy place honoured for its devotion to religion and piety. Such legacies, although paid when not due, cannot be reclaimed.

[ocr errors][merged small][merged small][merged small]

Having thus gone through the classes of contractual and quasi-contractual obligations, we must remark that rights can be acquired by you not only on your own contracts, but also on those of persons in your power-that is to say, your slaves and children. What is acquired by the contracts of your

slaves becomes wholly yours; but the acquisitions of children in your power by obligations must be divided on the principle of ownership and usufruct laid down in our constitution: that is to say, of the material results of an action brought on an obligation made in favour of a son the father shall have the usufruct, though the ownership is reserved to the son himself: provided, of course, that the action is brought by the father, in accordance with the distinction drawn in our recent constitu1 tion. Freemen also, and the slaves of another person, acquire for you if you possess them in good faith, but only in two cases, namely, when they acquire by their own labour, or in 2 dealing with your property. A usufructuary or usuary slave acquires under the same conditions for him who has the usu3 fruct or use. It is settled law that a slave jointly owned acquires for all his owners in the proportion of their property in him, unless he names one exclusively in a stipulation, or in the delivery of property to himself, in which case he acquires for him alone; as in the stipulation 'do you promise to convey to Titius, my master?' If it was by the direction of one of his joint owners only that he entered into a stipulation, the effect was formerly doubted; but now it has been settled by our decision that (as is said above) under such circumstances he acquires for him only who gave him the order.

TITLE XXIX.

OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED.

An obligation is always extinguished by performance of what is owed, or by performance of something else with the creditor's assent. It is immaterial from whom the performance proceeds-be it the debtor himself, or some one else on his behalf for on performance by a third person the debtor is released, whether he knows of it or not, and even when it is against his will. Performance by the debtor releases, besides himself, his sureties, and conversely performance by a surety 1 releases, besides himself, the principal debtor. Acceptilation is another mode of extinguishing an obligation, and is, in its nature, an acknowledgment of a fictitious performance. For instance, if something is due to Titius under a verbal contract,

[ocr errors]

and he wishes to release it, it can be done by his allowing the debtor to ask that which I promised thee hast thou received?' and by his replying 'I have received it.' An acceptilation can be made in Greek, provided the form corresponds to that of the Latin words, as ἔχεις λαβὼν δηνάρια τόσα; ἔχω λαβών. This process, as we said, discharges only obligations which arise from verbal contract, and no others, for it seemed only natural that where words can bind words may also loose: but a debt due from any other cause may be transformed into a debt by stipulation, and then released by an imaginary verbal payment or acceptilation. So too as a debt can be lawfully discharged in part, so acceptilation may be made of part only. A stipula- 2 tion has been invented, commonly called Aquilian, by which an obligation of any kind whatsoever can be clothed in stipulation form, and then extinguished by acceptilation; for by this process any kind of obligation may be novated. Its terms, as settled by Gallus Aquilius, are as follow: 'Whatever, and on whatsoever ground, you are or shall be compellable to convey to or do for me, either now or on a future specified day, and for whatsoever I have or shall have against you an action personal or real, or any extraordinary remedy, and whatsoever of mine you hold or possess naturally or civilly, or would possess, or now fail to possess through some wilful fault of your own as the value of each and all of these claims Aulus Agerius stipulated for the payment of such and such a sum, and payment was formally promised by Numerius Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast thou received the whole of what I have to-day engaged, by the Aquilian stipulation, to pay thee?' to which Aulus Agerius replied 'I have it, and account it received.' Novation 3 is another mode of extinguishing an obligation, and takes place when you owe Seius a sum, and he stipulates for payment thereof from Titius; for the intervention of a new person gives birth to a new obligation, and the first obligation is transformed into the second, and ceases to exist. Sometimes indeed the first stipulation is avoided by novation even though the second is of no effect: for instance, if you owe Titius a sum, and he stipulates for payment thereof from a pupil without his guardian's authority, he loses his claim altogether, for

« PreviousContinue »