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§ 70. partition from the other. If the thing is divisible, it is physically divided; if it is indivisible, one party is awarded the whole, subject to an obligation to compensate the other. (2) Either party can claim to be indemnified for expenses necessarily incurred on behalf of the other. (3) Either party is bound to show the diligentia quam suis rebus, i.e. he is bound to treat the common property with the same care as he would his own, with the alternative of paying damages. There are three kinds of communio, according as the parties share the same property, the same inheritance, or the same boundaries, the last of which cases occurs where the true boundaries are no longer ascertainable. Corresponding to these three kinds of communio there are three partition suits (judicia divisoria '). Where common property is to be divided, the actio communi dividundo applies; where a common inheritance is to be divided, the actio familiae erciscundae; where common boundaries are concerned, the actio finium regundorum. By means of a judicium divisorium the plaintiff can assert not only his right to a partition, but also his right to 'praestationes personales,' i. e. to indemnification for expenses and to compensation for damages. So far, however, as a partition suit aims at a division, it belongs to the so-called 'judicia duplicia' (sup. p. 255), both parties sustaining the same rôle in the suit, and the adjudicatio (or condemnatio, as the case may be) binding both parties to do whatever is necessary for the purpose of effecting the partition.

§ 3 I. eod. Item, si inter aliquos communis sit res sine societate, veluti quod pariter eis legata donatave esset, et alter eorum alteri ideo teneatur communi dividundo judicio, quod solus fructus ex ea re perceperit, aut quod socius ejus in eam rem necessarias impensas fecerit: non intellegitur proprie ex contractu obligatus esse, quippe nihil inter se contraxerunt; sed, quia non ex maleficio tenetur, quasi ex contractu teneri videtur.

VI. The heir, by entering on his inheritance, incurs a quasi-contractual obligation to pay over to the legatees all such legacies as he has been validly charged with by the testator.

§ 5 I. eod. Heres quoque legatorum nomine non proprie ex § 70. contractu obligatus intellegitur. Neque enim cum herede neque cum defuncto ullum negotium legatarius gessisse proprie dici potest. Et tamen, quia ex maleficio non est obligatus heres, quasi ex contractu debere intellegitur.

$71. Pacts.

A pact (pactum) is an informal declaration of consensus; for ex- § 71. ample, an informal release, an informal compromise. An obligatory pact is an informal obligatory declaration of consensus which the Roman civil law refused to acknowledge as a contract. The principle applied in such cases is that a pact (a so-called 'nudum pactum') gives rise, not to an actionable obligation, but only to a so-called 'naturalis obligatio,' i. e. to an obligation which, though payment can be validly made under it, is not enforceable by action. In other words, if the debtor, of his own accord, fulfils his informal promise, well and good; he cannot recover the money he has paid by means of a condictio indebiti (sup. p. 315). But, on the other hand, he cannot be compelled to pay by actio. The only way in which a pact can be given effect to, is by means of an exceptio in cases where a person, on being sued, can plead the conclusion of such an informal agreement by way of defence 1.

Nevertheless there are certain pacts-called the 'pacta vestita 'which are enforceable by action. Of these some are actionable even according to the classical civil law; others are actionable by the praetorian law; and a third class by the later civil law (the imperial law).

I. According to the classical civil law, and consistently with the general ideas inherent in this law, the so-called 'pacta adjecta' are actionable. Pacta adjecta are collateral agreements which are added immediately (ex continenti) on the conclusion of a negotium

1 It should be noticed that the nonobservance of the requirements of a formal contract does not in itself convert the transaction into a valid pact. If the parties intended to conclude a formal contract, but failed to satisfy the necessary requirements of form, the result is,

Y

in case of doubt, not an informal agree-
ment (which the parties never contem-
plated), but no agreement at all; cp. 1. 1
§ 2 D. de verb.obl. (45, 1). It is a mistake
to take this passage as proving that a
nudum pactum did not give rise to a
natural obligation.

§ 71. bonae fidei. Thus, if the parties to a contract of sale agree that, in default of punctual performance, the defaulting party shall pay a specified penalty, such penalty is recoverable by the action on the sale. A stipulatio to that effect is not needed. Every negotium bonae fidei binds the parties to do all that is required by bona fides. The good faith, therefore, on which the principal agreement is based, necessarily carries with it the duty to fulfil whatever was promised in the collateral agreement which was simultaneously concluded. If, however, the collateral agreement is concluded subsequently to the principal agreement, it cannot be enforced by the action on the principal agreement (of which, in such a case, it does not form an integral part), and not being actionable for its own sake, it gives rise, not to an actio, but only to an exceptio.

II. According to the praetorian law (pactum praetorium), the socalled 'constitutum debiti' is actionable. A constitutum debiti is a promise to pay a subsisting debt, whether it be one's own (constitutum debiti proprii) or another's (constitutum debiti alieni). Such à promise, if given in the form of a stipulatio, was actionable by the civil law. The praetor, however, made it actionable, even when unaccompanied by any formalities. (The actio de pecunia constituta -which was the appropriate remedy-was originally only granted on the ground of a constitutum for a money debt, and only for pecunia credita, the term 'constitutum' signifying, in the old times, the informal fixing of a day for the repayment of money which was owed.) Thus a person might promise by constitutum to pay another's debt, and, if he did so, his liability was even more stringent than that of a surety. For it was not every extinction of the principal debt that operated his release, but only payment to, or material satisfaction of, the creditor. The constituens and the principal debtor were not, as in the case of fidejussio, correal, but merely solidary debtors (sup. p. 282).

III. According to the later imperial law (pacta legitima) a promise of bounty and a promise to give a dos (inf. § 82) are actionable as mere informal pacts. But in the absence of a judicial insinuatio a promise of bounty is only binding to the extent of 500 solidi (sup. p. 138).

L. 7 § 7 D. de pact. (2, 14): Ait praetor: PACTA CONVENTA, § 71.
QUAE NEQUE DOLO MALO, NEQUE ADVERSUS LEGES, PLEBISCITA,
SENATUSCONSULTA, EDICTA, DECRETA PRINCIPUM, NEQUE QUO
FRAUS CUI EORUM FIAT, FACTA ERUNT, SERVABO.

L. 13 C. de pact. (2, 3) (MAXIMINUS): In bonae fidei contracti-
bus ita demum ex pacto actio competit, si ex continenti fiat.
Nam, quod postea placuit, id non petitionem, sed exceptio-
nem parit.

§ 9 I. de act. (4, 6): De pecunia autem constituta cum omnibus agetur, quicumque vel pro se vel pro alio soluturos se constituerint, nulla scilicet stipulatione interposita; nam alioquin, si stipulanti promiserint, jure civili tenentur.

B. DELICTUAL OBLIGATIONS.

$72. The Private Delicts of Roman Law.

In Roman law there are a number of delicts against which § 72. provision is made by remedies belonging to the private law. These are the so-called private delicts. Private delicts give rise to obligations which the injured party may enforce in order to punish the delinquent, the obligation being either one to pay damages (actio rei persequendae causa comparata, cp. sup. p. 188), or to pay a penalty (actio poenalis), or to pay both damages and a penalty (actio mixta). The private delicts of Roman law are as follows:

1. Furtum.

Furtum is the secret and wilfully wrongful appropriation of a movable thing not one's own, whether such appropriation is coupled with actual removal of the thing from the custody of another or not. Theft gives rise to two actions. Firstly, the actio furti which is penal-the penalty being quadruplum in the case of a fur manifestus (i. e. a thief who is caught in the act, though it is enough

1

1 According to the civil law secrecy is not essential to the conception of theft. At civil law therefore theft means any wilfully wrongful appropriation, includ

ing also rapina. It was only the prae-
torian law that distinguished rapina from
furtum.

§ 72. if he is seen in the commission of it), and duplum in the case of a fur nec manifestus. Secondly, the condictio furtiva which is reparatory (sup. p. 317). The actio furti can be brought by any person who is injured by the theft (cujus interest rem non subripi, rem salvam esse). On the other hand, the condictio furtiva to recover damages for a stolen thing can only be brought by the owner of the thing.

In the earlier Roman law there was also an 'actio furti concepti' against persons on whose premises stolen property was discovered after a formal search; an 'actio furti oblati' against persons who concealed stolen property on the premises of another; an 'actio furti prohibiti' against persons who resisted a search; an 'actio furti non exhibiti' against persons who refused to give up stolen property found after a search on their premises. All these actions were associated with the ancient right of a person whose property had been stolen to enter any house for the purpose of conducting a formal search with certain prescribed ceremonies. When this right of private search fell into disuse, the different actions which were associated with it ceased likewise to be employed.

The definition given above is only applicable to thefts of the thing itself (furtum rei ipsius). In Roman law there is also a 'furtum possessionis,' which is committed by the owner of a thing who abstracts such thing from a person entitled to the possession of it, e. g. a pledgee; and a 'furtum usus,' i. e. an appropriation for mere temporary use. The same remedies are applicable to these cases, viz. the condictio furtiva, in which the plaintiff claims the possession or the usus, and the actio furti, in which the plaintiff claims as damages the double or fourfold value of the possessio

or usus.

L. 13 D. de furtis (47, 2) (PAULUS): Furtum est contrectatio rei fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus ejus possessionisve.

§ 3 I. de obligat. ex del. (4, 1): Furtorum autem genera duo sunt, manifestum et nec manifestum.-Manifestus fur est, quem Graeci e' avropάpy appellant, nec solum is, qui in ipso furto deprehenditur, sed etiam is, qui eo loco deprehenditur,

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