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class; in other words, to papers payable to the holder or bearer.' The nearest approach to be found in Roman law to this modern refinement of transferability is the imposition of an obligation on the successive holders for the time being of a parcel of land: 'imperatores Antoninus et Veras rescripserunt, in vectigalibus ipsa praedia, non personas conveniri, et ideo possessores etiam praeteriti temporis vectigal solvere debere, eoque exemplo actionem, si ignoverint, habituros' (i.e. against their predecessors).
DOLUS, CULPA, AND CASUS.
A Party to a contract or quasi-contract may commit a breach of its terms, express or implied, either intentionally or unintentionally. Deliberate breach (dolus) always entailed liability—dolus semper praestatur—which could not be evaded even by an explicit agreement to the contrary: 'Celsus putat non valere, si convenerit, ne dolus praestetur: hoc enim bonae fidei iudicio contrarium est: et ita utimur' Dig. 50. 17. 23: cf. Dig. 2. 14. 27. 3. Certain unintentional breaches were treated in the same manner, whether consisting in acts of commission or of omission: viz. those which arose from want of ordinary care, from a carelessness so excessive that no ordinary man would have been guilty of it: this is called culpa lata, and for it, even in contractual and quasi-contractual relations, one is always answerable no less than for dolus, or deliberate and intentional breach: 'lata culpa est nimia negligentia, id est, non intellegere quod omnes intellegunt' Dig. 50. 16. 213. 2: ib. 223. pr., 'lata culpa plane dolo comparabitur' Dig. r1. 6. 1. 1, 'prope dolum est' Dig. 17. 1. 29. pr., 'dolum repraesentat' Dig. 47. 4. 1. 2, 'dolus est' Dig. 50. 16. 226: 16. 3. 31.
But if a man's negligence or culpa is not of this extreme degree, the question whether he is answerable for it is determined by reference to two standards or criteria of carefulness, the one abstract or absolute, the other relative or concrete.
(1) In some relations a man is required to show what the Romans call exacta diligentia, or the diligentia of a bonus paterfamilias, a careful, accurate, sound man of business; here he is answerable for all culpa, provided it could have been avoided by one more careful than himself: 'culpa autem abest si omnia facta sunt quae diligentissimus quisque observaturus fuisset' Dig. 19. 2. 257. Modern writers call this culpa levis in abstracto: in the authorities it is usually called culpa simply: when it is said that a man is answerable not only for dolus but for culpa as well, what is meant is that he is answerable for levis culpa: the liability for lata culpa, being universal, is implied. Instances in which this highest degree of diligence was demanded are those of the commodatarius, Bk. iii. 14. 2; the depositor, the pledgee in a pignus, ib. 4; the vendor, Dig. 18. 6. 3; the hirer (conductor), Dig. 19. 2. 57, and letter (locator), Cod. 4. 6. 28: the authorized agent (mandatarius), Cod. 4. 35. 13, and unauthorized agent (negotiorum gestor), Bk. iii. 27. 1.
(2) In other relations the law was satisfied with a less rigid standard: i.e. a man was required to be only as careful as he was in affairs which concerned no one but himself, or in which he himself would be the person primarily injured by carelessness: 'talem praestare diligentiam qualem in suis rebus adhibere solet ;' or, as modern writers say, he was held answerable only for culpa levis in concrete This lower degree of carefulness only was demanded from the depositary (Dig. 16. 3. 32: the contradiction of Bk. iii. 14. 3 is only apparent): the lender (commodator), Dig. 47. 2. 63. 6; the tutor, Dig. 27. 3. 1. pr. and curator; partners (socii) inter se, Dig. 17. 2. 52. 1: ib. 72; coheirs and colegatees, Dig. 10. 2: 25. 16, and the husband in respect of the dos, Dig. 23. 3. 17. If one may lay down a general rule, it would perhaps best be formulated thus: in contractual and quasicontractual relations the defendant is usually required to show exacta diligentia, but the burden of proving his negligence is on the plaintiff; in some of them, however, the defendant is excused if he can prove that he has shown such diligence and care as he usually displays in the conduct of his own affairs.
Mr. Poste, in his note on this subject (Gaius pp. 478-481), criticises as unnecessary and complicated the tripartite division into the diligence (a) of an ordinary man, (t) of a man in his own concerns, and (c) of the bonus vpaterfamilias, and adopts the two last criteria only. The result of this is a faulty determination of culpa lata, which he defines as 'the absence of the degree of diligence which a man habitually bestows on his own concerns ;' that this is wrong is clear from the definition cited above from Dig. 50.16. 213. 2. Hence too arises a practical difficulty: for if we suppose (e.g.) a partner to be less careful in suis rebus than an ordinary man, and yet to display in societatis rebus that care which he bestows on his own, how is he to be judged? He has been guilty of culpa lata according to the definition of the Digest, and yet on Mr. Poste's principle he is not answerable.
No test has yet been suggested for determining the degree of diligence required by law in a given relation which is not marred by perplexing exceptions. Perhaps the one which covers the greatest number of instances is that proposed by Mr. Poste, p. 479: 'the principle appears to be that when a contract is for the interest of both parties, although their interests are rather adverse than identical, each is responsible for the least negligence:' 'in contractibus bonae fidei servatur, ut si quidem utriusque contrahentis commodum versetur, etiam culpa, si unius solius, dolus malus tantummodo praestetur' Dig. 30. 108. 12. Yet there are some cases (e.g. mandatum and negotiorumgestio) in which, though the relation is all for the interest of one party, exacta diligentia is required from the other; and others in which, though both parties are interested, they are yet expected to show only talem diligentiam qualem in suis rebus adhibere solent, e. g. partners, coheirs, and colegatees.
Accident, fortuitus casus (which is mentioned in Bk. iii. 14. 2 and elsewhere in the Institutes), and dolus form the two extremes of a chain of possible sets of circumstances, the responsibility for which may be exhibited thus. For accident, and for such unintentional faults and mistakes as could not have been guarded against by the utmost care, no one is answerable. Culpa levis entails liability on the classes of persons enumerated under (1) supr.: they are required to show exacta diligentia. The classes of persons enumerated under (2) are expected to display the lower degree of diligence: they are answerable for culpa legis in concreto. Culpa lata and dolus entail liability in every case.
The liability for culpa in delict is treated in Bk. iv. 13. 3, and notes. EXCURSUS VII.
JOINT AND SEVERAL LIABILITY. CORREALITY AND
The simplest type of obligation is that in which there is but a single creditor and a single debtor. There may, however, possibly be two or more creditors, or two or more debtors, in the same obligation. Sometimes, it is true, this plurality of parties is apparent only, and not real: it is seen, on a closer scrutiny, that there are, in reality, a number of separate obligations, each with its single creditor and its single debtor, and each distinguishable from each of the rest: the misapprehension arising from the fact that there is something which connects the several obligations with one another. For instance, if A, B, and C jointly promise 5/. to D, or if D promises 15/. to A, B, and C jointly, D can claim only 5/. from each of the promisors singly, or each of the promisees can recover only 5/. from him. Or again, if a debtor or creditor dies, leaving several joint heirs, they are entitled or bound, and can sue or be sued, only in the ratio of their shares in the inheritance. In all these cases there is no single obligation with a plurality of parties on either the creditor or the debtor side: there is a number of separate and distinct obligations, which, in our minds, are connected together by the unity of the mode in which ihey originate.
A different form of apparent unity of obligation is that, where two or more persons are entitled or bound in the sense that each may claim, or be called upon to perform, the whole of what is due under the obligation, that whole being demandable as many times as there are creditors or debtors respectively. E. g. the law imposes a penalty of 10/. on any one who steals pheasants' eggs. A, B, and C together go and steal D's pheasants' eggs: D can recover the 10/. penally from each of the three in succession, exactly as if he were the only delinquent, or as if the thefts were independent or disconnected. Roman law supplies an illustration in Dig. 9. 2. 11. 2 'ex lege Aquilia quod alius praestitit alium non relevat, cum sit poena.' So too if D injures A, B, and C by the same act, they can each separately recover from him the penalty fixed by law: the obligations are independent, though arising from one and the same source.
But a third case is conceivable. There may be one creditor entitled