ination-this, though called 'dies incertus an,' is not properly a dies § 43. at all, but a condition. § 2 I. de V. O. (3, 15): Id autem quod in diem stipulamur statim quidem debetur, sed peti prius quam dies veniat non potest. III. Modus. 'Modus' (in the technical sense) is a qualification added to a gift or testamentary disposition, whereby the person benefited is required and bound to devote the property he receives, or the value thereof, in whole or in part, to a specified purpose. Where a right is conveyed sub modo-as where A makes B a gift of property, requiring him at the same time to give £10 to C-the effect is not the same as in the case of a condition. The modus has no 'real' effect on the right conveyed; that is to say, it does not impress the right with a particular character as against any one that acquires it; it does not encumber the right in the sense of making it defeasible. The recipient (B) becomes absolute owner at once, subject only to a personal obligation to perform the act required of him. But even if he does not perform it, his title as owner remains unaffected, though the non-performance renders him liable to an action in personam. And if he alienates or mortgages the property, the alienee or mortgagee will take it free from any duty in respect of the modus. The effect of a modus, unlike that of a condition, is merely to impose an obligation on the person who takes the property sub modo. L. 17 § 4 D. de cond. et dem. (35, 1) (Gajus): Quod si cui in hoc legatum sit ut ex eo aliquid faceret, veluti monumentum testatori, vel opus, aut epulum municipibus faceret, vel ex eo ut partem alii restitueret, sub modo legatum videtur. ... L. 80 eod. (SCAEVOLA): . . nec enim parem dicemus eum cui Cp. Pernice, Labeo, vol. iii. part 1: Auflage u. Zweckbestimmung (1892). $44 Capacity of Action. § 44. 'Capacity of action,' in the wider sense, is the capacity to act in such a manner as to produce a legal result. As far as the law is concerned, only the acts of persons legally capable of acting need be taken into account as 'acts,' i.e. as manifestations of a will, whether lawful or unlawful. Capacity of action, in the narrower sense (and it is in this sense that the conception is of special importance in private law), means the capacity to perform acts of a particular kind, the capacity, namely, to conclude juristic acts. In the German Civil Code this capacity to conclude juristic acts is called 'Geschäftsfähigkeit.' There are three degrees of such capacity: total absence of capacity, partial absence of capacity, full capacity. I. The following persons are incapacitated from all juristic acts: year; (6) the 'furiosus,' or person of unsound mind. II. The following persons are in Roman law incapacitated from some juristic acts, but capable of others: (a) the 'impubes,' or child who has completed its seventh, but has not yet completed (if a boy) his fourteenth or (if a girl) her twelfth year ; (b) the 'prodigus,' or prodigal who has been placed under the control of a curator. In the early Roman law women were also capable of some juristic acts only (§ 103, ii.). The legal position of persons of the second class is as follows. They are capable of such juristic acts as result in an improvement of their proprietary position, but they are incapable of juristic acts which operate to alienate property or impose a liability. If therefore a person of imperfect capacity enters on a transaction which operates both to confer a right and to impose an obligation, he acquires the right, but cannot himself be sued on the transaction. Thus, if he contracts a loan, he becomes owner of the coins given him under the loan, but cannot be sued on the loan, as such. All he can § 44. be compelled by action to do-and in this respect he is in just the same position as a person who is completely incapacitated-is to restore the amount by which he is still the richer in consequence of the transaction (§ 83, i.). If the transaction is one involving a performance on one side and a counter-performance on the other (e. g. a sale), he is entitled, according to Roman law, to exact performance from the other party without being himself compellable by action to do his part. Hence such transactions are called 'negotia claudicantia.' A guardian may act in place of a person of imperfect capacity. Or, if the latter be an impubes, he (the impubes) may conclude acts which operate to alienate property or impose a liability himself, provided he is assisted by the presence of his guardian (tutoris auctoritatis interpositio). Cp. § 103. pr. I. de auct. tut. (1, 21): Auctoritas autem tutoris in quibusdam III. All persons not specified in classes (i) and (ii) have full legal capacity for all juristic acts, including therefore the capacity to incur contractual liabilities of their own. According to Roman law, then, minors who are above the age of puberty, but under twenty § 44. five years (puberes minores xxv annis) enjoy full capacity. Such minors are, however, allowed to apply for a curator, and once such a curator is appointed, the 'minor curatorem habens' ceases, in spite of his full capacity of action, to have any power to dispose of his property. He is deprived of the right to manage his own property, because the management of it has been transferred to his curator. True, he can, by his own will, conclude juristic acts of any kind, including such as effect an alienation of property or impose a liability; he does not require any auctoritatis interpositio, any present assistance from his guardian. But the difference is this that, unless the curator gives his sanction (whether in praesenti, before, or after the transaction), all such acts of the minor as purport to alienate property or impose a liability, are nugatory as far as any effect on his property is concerned. If, instead of procuring the consent of the curator, the minor himself ratifies his act after attaining majority, the act is also binding. Wherever incapacity of disposition is concerned, it is the effect of the juristic act that comes into question; wherever, on the other hand, incapacity of action is concerned, it is the existence of the act that comes into question. In the course of the development of German law the notion of pubertas as marking a distinctive age for legal purposes was abandoned, and the special rules of Roman law concerning minores puberes ceased therefore to be recognized. Accordingly the German Civil Code (§ 106, and cp. § 107, cited below) assigns a limited capacity for juristic acts to all minors who have completed their seventh year (infantia majores), and the same limited capacity is assigned by § 114 of the Code to persons placed under guardianship by reason of imbecility of mind, prodigality, or dipsomania. pr. I. de curat. (1, 23): Masculi puberes et feminae viripotentes usque ad vicesimum quintum annum completum curatores accipiunt. GERMAN CIVIL CODE, § 107: A minor (who has completed his seventh year) cannot make a valid declaration of intention without the consent of his statutory representative*, unless * As to 'statutory representative,' v. infra, p. 233. the declaration is of such a nature as to confer exclusively § 44. a right or benefit on the minor. From capacity for juristic acts we must distinguish two other capacities, viz. (1) 'proprietary' capacity; (2) 'delictual' capacity. (1) 'Proprietary capacity,' which, as we have seen (§ 30), is the prime characteristic of a person within the meaning of private law, is the capacity to hold property, taking the word property in its widest sense as including both rights and debts. Proprietary capacity, in other words, means both the capacity to acquire rights and the capacity to incur liabilities. An infans may, like others, acquire rights and incur liabilities, e. g. by the act of his guardian. By capacity of action, on the other hand, we mean the capacity to acquire rights and incur liabilities by one's own act, i. e. by a manifestation of one's own will. An infans has proprietary capacity because he is a person, but he has no capacity of action. (2) 'Delictual capacity' is the capacity to incur a liability for unlawful acts. Like the capacity for juristic acts it is a species of 'capacity of action' in the wider sense of that term, but it is not governed by precisely the same rules as the capacity for juristic acts. A person who is incapacitated from all acts, such as an infans or a furiosus, is also incapable of any delictual liability. But a person whose capacity for juristic acts is limited may, according to Roman law, become liable on delicts, if he appears to be doli capax (e. g. the prodigus, the pubertati proximus). Thus delictual capacity and complete capacity for juristic acts are independent of one another. The essence of the latter capacity consists mainly in the ability to incur liabilities by means of juristic acts (agreements). $45. Representation. There are many juristic acts which a person may be bound or § 45. willing to conclude, but which he is unable to conclude in his own person. A lunatic cannot buy bread for himself even though he has money enough to pay for it. A rule of law prevents his concluding the act. Nor, again, is it practicable for the master to go to market |