case of commodatum; or, again, were delivered on terms that the trans- § 11. feree should, for instance, sell it, or give it to a third party, or (if the object were a slave) should manumit such slave—as in the case of mandatum—in all such cases the transferor (deponens, commodans, mandans) made the transferee (depositarius, commodatarius, mandatarius) formally owner of the thing delivered, but the ownership was held subject to a trust, 'fiduciae causa'; it was purely formal, and involved an obligation to abide by the terms of the agreement on which the mancipatio was based. There was no reason why the agreement that ownership should pass subject to a trust, should not be set forth in the formula used in the mancipatio (the 'nuncupatio') . The existence of a fiduciary duty was thus clearly established by the solemn act itself, but to embody the entire agreement in the nuncupatory formula was scarcely feasible. The mancipatio itself, therefore, said nothing about the terms of the trust; for these it was necessary to look to the 'pactum conventum,' a formless collateral agreement. But, according to early Roman law, no action can be taken on a formless pact. Is then, a 'pactum fiduciae' actionable or not? The early jurists argued this way. Inasmuch as the pactum conventum as such is not actionable, that which is promised in the pactum cannot, as such, be enforced by an action. object in good faith' is actionable. in the solemn mancipatio this duty falls, of course, under the protection afforded by the rule of the Twelve Tables: 'uti lingua nuncupassit, ita jus esto.' The transferee thus became liable to an 'actio The inscription, No. 5402, in vol. 2 of the Corp. inscr. lat., shows that this was actually done: D... fundum B... nummo I fidi fiduciae causa mancipio accepit. Cp. on this point, Degenkolb, ZS. für RG. vol. 9, pp. 172, 174; Voigt, Die zwölf Tafeln (1883), vol. 2, p. 166 ff. Thus the words 'fidi fiduciae causa' formed part of the mancipatory act itself. But in this inscription the agreement which defined the conditions of the trust follows the words evidencing the mancipatio in the shape of an independent 'pactum conventum,' But the duty to deal with the and thus proves that the said agreement § 11. fiduciae.' It is important to observe what it was precisely that the plaintiff in this action could require the defendant (i.e. the transferee in the mancipatio) to do. He could not call upon him to do what he had promised in the pact, because the pact had not been 'nuncupated.' But he could call upon him to do that which any honourable and trustworthy man could be reasonably expected to do having regard to the circumstances of the case, the most important of which was, of course, the pactum conventum itself. In other words, what the judge had to find out was not whether the defendant had acted up to the precise terms of the pact--for the pact being formless, its terms were still quite unenforceable---but whether the defendant had conducted himself in such a way, 'ut inter bonos bene agier oportet et sine fraudatione'.' Since the pactum conventum lay outside the solemn mancipatio, the fiducia did not give rise to an actio stricti juris 10, but to a so-called 'actio bonae fidei,' i. e. the extent of the obligation which it produced was not fixed by any hard and fast line, but rather by the judge exercising, within fairly wide limits, his free judicial discretion". In fiducia we have the first recognized instance of a contract different in kind from the legal transactions which had been handed down from olden times. For the extent of the obligation en 9 If the judge decided against the defendant, the judgment did not mean that he (the defendant) had failed to meet a legal obligation, but rather that his conduct in the matter had not been that of a man of honour. This is the reason why condemnation in an actio fiduciae entailed infamy (cp. § 25). Cp., on this point, v. Jhering, Das Schuldmoment im römischen Privatrecht (1867), p. 29 ff., and next note. 10 Differing, in this respect, from other collateral agreements in mancipatio which were fully covered by the terms of the nuncupatio. Such were, e. g. the trusts imposed on the familiae emtor in the mancipatory will (inf. § 99). The actio fiduciae was an 'actio in factum concepta.' (Cp. Lenel, ZS. der Sav. St., vol. 3, roman. Abt. p. 112). Lenel himself has, however, pointed out (Das Edictum perpetuum, 1883, p. 234) that nothing is thereby proved in regard to the later origin of this action. But the fact of its being an actio in factum concepta seems rather to point to the conclusion that, in the old times, the actio fiduciae was tried by means of the legis actio per judicis postulationem (inf. § 35, ii). See Voigt, loc. cit. p. 475 ff. At a later time, the other actiones bonae fidei seem also to have first come into use in the shape of actiones in factum conceptae. For since an informal promise was originally not legally, but only morally binding, the plaintiff was precluded from setting up a legal claim which the defendant had not satisfied, and could only allege some fact which went to show that the defendant's conduct in the matter was unjust. This explains the connection between the actio bonae fidei in its earliest form and the actio ex delictu. Cp. n. 9, sup., and the passage from Jhering referred to. gendered by these transactions was rigorously determined by the § 11. letter of the agreement; in fiducia, on the other hand, it was equitably determined in accordance with the free discretion of a 'bonus vir,' taking into account all the circumstances of the case. It was a contract which placed the existence of a liability beyond all doubt, but which was neither designed nor able to fix, in set terms, its precise contents. Thus the interpretation of the Twelve Tables, in dealing with mancipatio, the formal, rigorous, ready-money sale of the early law, had produced a twofold result : (1) It had developed a formal method for conveying ownership for any purpose whatsoever; (2) It had developed a whole series of transactions (negotia bonae fidei) based upon credit, being the various cases of fiducia, which were concluded 're,' by performance, that is, by mancipation (sestertio nummo uno) 12. With regard to Nexum, no corresponding development took place. Nexum remained what it had been, a loan-transaction, and was subsequently superseded as such by the formless loan called 'Mutuum' ($12). The sole trace of the original severity of the formal contract of loan is to be found in the fact that mutuum was a negotium stricti 12 After the example of mancipatio fiduciae causa an in jure cessio and coëmtio (§ 79) 'fiduciae causa' came subsequently into use. Just as the transferee in mancipatio (n. 7) declared that he took the legal ownership 'cum fiducia,' so, in the case of in jure cessio, the person making the fictitious vindicatio declared that he was only owner 'fiduciae causa.' The vindicatio, therefore, was made, as in other cases, 'adjecta causa.' Cf. Voigt, loc. cit. p. 172. In every instance the solemn declaration set forth that the conveyance of ownership, or (in the case of coemtio) of marital power, was merely formal. Thus the extraneus with whom a woman had made coëmtio, i. e. had formally contracted a marriage, but only fiduciae causa (e. g. for the purpose of freeing herself from guardianship, § 91, n. 2), was not her maritus, nor was he called so; he was her 'coëmtionator,' and, as § 11. juris ( 63, 66). It was reserved for 'Stipulatio' (inf. § 67) to supply a type for all agreements in which the solemn promise of the debtor gives rise to a rigorously unilateral obligation quite irrespective of the legal ground on which such obligation is based. Stipulatio was the outcome of the ancient 'sponsio,' and resembled nexum in so far as the underlying idea in both was originally a kind of selfpledge; but it differed from nexum in that the pledge implied in stipulatio could only be enforced by the gods 13. As the mancipatio fiduciae causa supplied the foundation for the negotia bonae fidei of a later period, so nexum is the type and basis of the negotia stricti juris, i. e. transactions which generate a rigorously unilateral obligation and leave no latitude to the discretion of the judge. § 12. The Beginnings of the Fus Gentium. From the earliest times there must, of course, have existed in Rome, side by side with the formal juristic acts which alone enjoyed the sanction and force of the jus civile, a countless variety of transactions which were despatched without any form whatever. It happened, as a matter of course, that many a sale was made by simple delivery of the article and payment of the price, many a loan, too, contracted by simple handing over of the money, and so on. In other words, there were informal sales, loans, deliveries (with a view to transferring ownership in things), and so forth. But according to the early civil law all these informal proceedings were 13 Sponsio was the name originally given to a contract which was concluded by a libation, i. e. by a formal selfdenunciation, to the following effect :Even as this wine now flows, so may the punishing gods cause the blood of him to flow who shall be the first to break this covenant. (Cp. Leist, Gräcoitalische Rechtsgeschichte (1884), p. 457 ff.). The original obligation created by such a promise was a purely moral, or religious one, partaking largely of the nature of an oath. It was not till later that it assumed a legal character (cp. § 67). When Cicero says that to 'spondere, promittere' is to 'obligare fidem,' his words seem to point to some surviving notion of a pledge of one's moral self (cp. A. Pernice, Labeo, vol. i. (1873), p. 408). German law confirms the view that all the oldest contracts originated in some kind of pledge (obligatio), whether of one's person or of portions of one's property. Cp. e.g. J. Kohler, Shakspeare vor dem Forum der Jurisprudenz, vol. i. (1883), p. 52 ff. Heusler, Institutionen des deutschen Privatrechts, vol. i. (1885), p. 104. totally devoid of legal validity. That which was effected by an § 12. informal sale was, of course, a transaction, but not a juristic transaction. Thus if A sold and delivered something to B which did not belong to him, and B were evicted by the true owner, he had no action against A. There was no question of law at all; the whole relationship between A and B was purely one of fact, and might, in this respect, be compared to our position in dealing with savage tribes. We may sell to them, and barter with them, but no legal relations, no actionable rights, are called into existence. There was, however, one element which was bound, in the long run, to secure the legal recognition of these formless transactions. This element was the foreign trade, in so far as it was carried on within the confines of Rome. Every alien, i. e. non-citizen, was, as such, absolutely debarred from the use of any of the formal juristic acts of early Roman law. Mancipatio as well as nexum was, on principle, null and void, if one of the parties, nay, if one of the witnesses, were without the Roman civitas. Thus, even though a foreign merchant, i. e. one who did not enjoy the privileges of Roman citizenship, were quite willing, in doing business in Rome, to observe the forms, say, of mancipatio, it would have been useless, because the mancipatio would have been none the less void. The result was that the commercial dealings of aliens in Rome, including, therefore, the dealings of aliens with Roman citizens, were at all times confined, without option, to the formless transactions just referred to. For aliens these were the only juristic acts. Of course such a system could not last. The commercial transactions of the foreign merchants could not remain permanently outside the pale of the law, and some method had to be devised by which they should obtain legal validity not only if both parties were aliens, but also if one of them were a Roman citizen. Inasmuch, moreover, as even Roman citizens, among themselves, were making daily and habitual use of these informal acts, it was quite obvious that their gradual recognition by the law was a matter of pressing importance to citizens and aliens alike. At a subsequent period the law under which aliens traded in Rome assumed a shape which served to bring out the full significance |