§ 72. appropriate remedies being the actio de dolo and actio quod metus causa respectively (sup. pp. 135, 136). With regard to the actio de dolo, however, since it entails infamy on the party condemned, it is only granted in a subsidiary way, when no other remedies are available (si qua alia actio non erit); and after the lapse of two years, according to Justinian's law-post annum utilem, according to the praetorian law-it can only be taken in the shape of an actio in factum to the extent to which the defendant has still any profit from his dolus. A threat which results in damage to the property of another being really only a special case of dolus, it follows that, generally speaking, in cases of dolus the mere damage to the property in itself gives rise to an action for compensation, whereas in cases of mere culpa, i. e. in cases of damage for which, though it is unintentional, the defendant is nevertheless answerable, no action arises, unless the damage is done to a corporeal thing (sup. under 3). This rule, which is true both of Roman law and the common law of modern Germany, is one of the greatest practical importance. § 73. $73. Quasi-Delicts. When the facts of a case merely resemble a delict, but nevertheless produce the same effect as a delict (viz. an obligation to pay damages or a penalty), we have a quasi-delict. 1. Judex qui litem suam facit, i.e. a judge (in the formulary procedure, the sworn judex) by whose act or default in deciding or conducting a lawsuit, a party to such suit is injured, is liable to an action for damages, the amount of which is left to the discretion of the judge (quantum aequum judici videbitur). Such an action is regarded as quasi-delictual, because it is available not only in cases of deliberately unfair decisions, but also in cases of less serious errors committed by the judge, if he, for example, overlooks the day fixed for trial, or disregards the rules of law concerning adjournment, and so forth (imprudentia judicis). It would, however, be quite wrong to suppose that the action in question could be taken on the ground that the judgment was unjust in substance1. 1 Cp. Lenel, Edictum, pp. 136, 137. 2. Where something is thrown or poured out of a room to the § 73. injury of another, the occupier, or occupiers, of such room are liable to the praetorian actio de effusis vel dejectis in which the plaintiff claims double damages (i.e. it is an actio mixta). 3. A person who places or hangs something over a public way to the common danger of all, is liable to a praetorian actio popularis (cuivis ex populo, cp. p. 188) for the recovery of a private penalty of 10,000 sesterces, for which Justinian substituted 10 gold solidi. This is the actio de posito vel suspenso. 4. Shipowners (nautae), innkeepers (caupones), and stable-keepers (stabularii) are answerable by the praetorian law for delicts committed by their servants while acting within the scope of their employment. The injured party has an actio in factum for the recovery of double damages (i.e. an actio mixta). 5. The delict of a slave (unlike his contract, § 75 I) renders the master liable to a noxal action, i.e. the action ex delicto, to which the act of the slave gives rise, may be taken against the master in the shape of a noxal action. The master has the alternative of either taking the consequences of the delict upon himself or of surrendering the slave to the injured party (noxae dare). Cp. sup. pp. 191, 194. The same rule applies when an animal causes damage in a manner which is contrary to its natural disposition (contra naturam). The owner is liable to a noxal action in the shape of the so-called 'actio de pauperie.' Under the law prior to Justinian a paterfamilias could also be sued by noxal action for the delicts of the filiusfamilias 2. 2 The history of noxae deditio and its probable connection with the ancient law of retaliation is discussed by Girard, Les actions noxales, Nouvelle revue III. TRANSFER AND EXTINCTION OF OBLIGATIONS. $ 74. § 74. Transfer of Obligations. According to the Roman civil law, the creditor in an obligation cannot transfer ('assign') his right to another. True, he may constitute the other his procurator, or 'processual agent,' for purposes of the action (mandatum actionis), i.e. he may commission the other to sue as his agent for the amount which is due under the obligation, and may further agree to let such agent retain the sum recovered in the action (mandatum in rem suam). But even a processual agent, invested with a mandatum actionis in his own favour (in rem suam), cannot sue in his own right, but only as the representative of another, viz. the principal from whom he derives his commission. In theory, the agent is not entitled to sue for the debt, but, like any other mandatarius, is merely bound to sue for it. If the creditor revokes his commission, or if he dies, the mandatum in rem suam is extinguished like any other mandatum. The mandatarius in rem suam has no right in respect of the debt he sues for. In the eye of the law he is not the creditor, but only the creditor's agent. It is not till he has joined issue with the debtor (litis contestatio) that his relation to the debt becomes defined. Whenever a procurator appears as a party to an action, the formula is granted—and in the classical procedure it is by means of the formula that the litis contestatio is accomplished (sup. p. 150, n. 2)—in favour of, or, if the procurator represents the defendant, against, such procurator. In other words, whilst the intentio of the formula contains the name of the creditor, or debtor, the condemnatio is given for, or against, the procurator. 'If the defendant owes the mandator (the creditor) 100 aurei, he shall be condemned to pay 100 aurei to the procurator. The result is to constitute the procurator' dominus litis,' i. e. to make him a party to the action, the effects of which, therefore, operate in his favour, or otherwise, as the case may be. According to the wording of the formula, the judex is directed to condemn the debtor to pay the debt to the pro- § 74. curator. From this moment, then, the processual mandatum becomes irrevocable, but it does not matter whether it be a mandatum in rem suam or any other processual mandatum; for any processual agent becomes dominus litis by means of the formula. As regards its outward effect, a mandatum in rem suam is indistinguishable from an ordinary mandatum. As against the debtor, a mandatarius in rem suam is, like any other mandatarius, not a creditor, but merely a procurator, though, as against the mandator, he is not bound to hand over what he recovers in the action from the debtor'. The civil law, however, in course of time advanced a step beyond this position. It gradually became a fixed rule that a mandatum in rem suam should be irrevocable, not from the moment of litis contestatio only, but from the moment when the mandatarius in rem suam gave the debtor notice of the fact that he had received his commission from the mandator. A clear distinction was thus established between a mandatum in rem suam and an ordinary processual mandatum. The latter was revocable up to the litis contestatio; the former was only revocable up to the moment of notice. From the moment he gave notice the mandatarius in rem suam had a right to claim that the debtor should pay him, and him alone. It is in this fact that we find the first indication of the idea of assignment. The mandatarius in rem suam did not indeed become creditor, but he acquired the right to stand in the place of the creditor. What passed to him was not indeed the personal claim itself, but the right to insist on the fulfilment of the personal claim of another. This course of development was completed by the praetor. The effect of the action of the praetor was to render mandata in rem suam (where the mandatary merely stood in the position of a procurator) unnecessary. By the praetorian law it was immaterial whether the creditor appointed the other his agent for purposes of the action or not, and whether the processual mandatum were validly revoked (prior to notice having been given) or not. The only matter of im 1 For a more detailed account of the history of processual agency in Roman law, see F. Eisele, Cognitur und Pro curatur (1881); M. Rümelin, Zur § 74. portance in the praetorian law was the transaction by which the obligation was expressed to be assigned, i. e. the transaction-whether it were a sale, a gift, the creation of a dos, or any other—which was concluded in respect of the obligation and which manifested an intention to transfer such obligation. According to the praetorian law, the mandatum ad agendum, granted on the ground of the transaction by which the parties purported to transfer the obligation, was immaterial. The essential part was the transaction itself, in a word, the act of assignment. It was only the praetorian law that gave legal effect to an intention to transfer an obligation. The civil law merely recognized mandata, where the agent was authorised to assert the claim of another (viz. the mandator), and mandata of this kind became in certain circumstances irrevocable. The praetorian law, on the other hand, recognized assignments of obligations as such, by way of sale, gift, &c.-assignments (that is to say) under which the declaration of the intention to assign entitled the assignee to sue on the obligation in his own name, to sue, in a word, for a claim of his own. The praetorian law, unlike the civil law, recognized a singular succession to obligations. The action which the praetor granted the assignee on the ground of an assignment, was an actio utilis, the name of the assignee thus appearing in the intentio itself. Such an actio utilis was quite unaffected by the revocation or death of the creditor. It operated at once to make the assignee creditor in respect of the debt due under the obligation. It was, however, quite obvious that a debtor who, not having received notice of assignment, paid his original creditor what he owed, was, on equitable grounds, entitled to the benefit of such payment. Not till he received notice of a sufficiently definite kind could the debtor be bound by the assignment. The practical importance of notice thus remained the same. But instead of being the means which the new creditor had to adopt in order to acquire a right of his own, it became merely the means for excluding a right It is difficult to say what form the assignee's actio utilis took. It was clearly an actio ficticia. But what was the object of the fiction? Eisele (Die actio utilis des Cessionars (1887), p. 26, 40 ff.) conjectures that there was a fictitious delegation (si Titius Num. Ao. delegavisset), but this view is justly objected to by Unger in Jhering's Jahrbücher für Dogmatik, vol. xxvi. p. 412, |