benefit from the transaction. Hence he is only liable for dolus and § 79. culpa lata. The depositor, on the other hand, is interested in the transaction. It is for his benefit that the contract exists. Hence he is bound to exercise omnis diligentia, i. e. he is liable to the depositary for culpa levis, and is bound to recoup the depositary for all expenses incurred in connexion with the thing. (d) Pignus, or Pledge. Pignus arises where a thing is delivered in pledge. We have already discussed pignus (supra, § 72), as far as the real right of pledge is concerned which the creditor acquires in the thing pledged. But the delivery of the thing, besides giving the creditor this real right, gives the debtor (the pledgor) an obligatory right against the pledgee personally, the right namely to recover the thing pledged. It is in this sense that we speak of a contract of pledge, and we are here only concerned with pignus in so far as it gives rise to such a contract. Like commodatum and depositum, pignus is a bonae fidei negotium. It binds both parties to do all that is required by bona fides. In the first place the pledgee has a duty towards the pledgor, the duty, namely, to restore the pledge as soon as the debt it was intended to secure is discharged, orif he has exercised his right of sale-to hand over the balance after paying himself out of the proceeds (hyperocha, supra, p. 377). The pledgor has the actio pignoraticia directa. It is only in certain circumstances that the pledgor incurs a liability as against the pledgee, e. g. to recoup him for expenses incurred in connexion with the pledge. In such cases the pledgee has the actio pignoraticia contraria. In this instance both parties are interested in the contract by means of which one obtains credit, the other security. Hence both parties are answerable for omnis diligentia. II. Innominate Real Contracts. In addition to the real contracts just enumerated certain other real contracts, the so-called 'innominate real contracts,' became actionable at a later period. The Romans, namely, adopted the principle that wherever there were mutual promises of mutual performance, the party who had performed his promise should, on the ground of such performance, be entitled at once to exact § 79. counter-performance from the other. The action, in such cases, was based not on the consensus as such, but on consensus coupled with a delivery of property, coupled, that is, with performance (res); in a word, it was based on a real contract. But since the nature of the acts to be respectively performed might vary indefinitely, no fixed general name applicable to all cases of this kind came to be adopted. Hence they are called nowadays 'innominate' real contracts. It was in the form of an innominate real contract, on the principle just explained, that Exchange-taking the word in its widest sensebecame actionable in Roman law. The Corpus juris distinguishes four categories, differing according to the nature of the acts to be respectively performed: do ut des, do ut facias, facio ut des, facio ut facias. The action by which a person who has performed his part claims counter-performance on the ground of his own performance is called the actio in factum praescriptis verbis or actio in factum civilis (cp. p. 272, n. 1 3). The two classes of real contractsnominate and innominate—are in their essence radically different from one another. The nominate real contracts (which had their origin in nexum and fiducia) are all founded on a delivery of property to a person who is bound to return it. The property is delivered with a restriction-only by way of loan, commodatum, and so forth-and it is this restriction that creates the duty to return the property. The contract is effected 're, in the strictest sense, because the obligation of the debtor arises from the nature of the delivery, according as it is a delivery by way of loan, commodatum, deposit, or pledge. The duty to restore the property is not a duty to give something by way of counter-performance; it is merely a duty to observe the particular restrictions subject to which the delivery has been made. The case is quite different with the innominate real contracts. In them the property is delivered in order that something else may be given in return; they are, in a word, contracts of exchange in the wider sense. Here the obligation does not, as a matter of fact, arise from the delivery (res) as suchfor the delivery is final and is made without any reservation, the contract itself not contemplating the return of the property-it arises rather from the promise of counter-performance which the party receiving the property has given. In this case the res, or delivery, as such, tells us nothing either as to the ground or the nature of the obligation incurred by the party to whom the delivery is made. The innominate real contracts are contracts for a mutual exchange of performance and counter-performance, and are therefore, in their nature, similar to the consensual contracts, because the content of the obligation to which they give rise is determined solely by the mutual promises of the parties. The fact that in Roman law these contracts of exchange were formally classed as real contracts-counter-performance being enforceable only on the ground of a previous performance by the party demanding it-is entirely due to the narrowness of the positive civil law of Rome, according to which simple consensus was only actionable in certain exceptional cases. The nominate real contracts, on the other hand, are 'real' in the fullest sense of the term: by the very nature of the case they are, and always will be, real contracts, because Praescriptis verbis agere was not, however, a form of legal redress § 79. confined to cases of innominate real contracts. It served a much wider purpose, the purpose, namely, of generally supplementing the system of actions ex contractu. Whenever the traditional formulae of actions (i. e. the formulae already set out by the praetor in his album) were found to be inadequate, and yet the facts were clearly sufficient to establish a dare facere oportere ex bona fide, a formula with a demonstratio in factum concepta (1. 6 § 1 C. 2, 4: quae praescriptis verbis rem gestam demonstrat) was drawn up with special reference to the circumstances of the particular case. The demonstratio namely (cp. p. 280) set forth the actual facts-hence described as 'in factum' concepta-so far as they bore on the agreement concluded by the parties, in order that the judge, having regard to these facts, might condemn the defendant to quidquid ob eam rem dare facere oportet ex bona fide, the intentio being accordingly juris civilis. This is what is meant by 'praescriptis verbis agere '—a proceeding available in all cases where, on the one hand, the existence of a liability is undoubted, but where, on the other hand, there are doubts concerning the legal nature of the underlying facts, in other words, concerning the possibility of making the agreement in question tally with any of the traditional categories of contracts. And that is just what occurred in regard to the innominate real contracts: the plaintiff was obliged to sue for counter-performance praescriptis verbis, because there was no settled category, no fully developed patternsuch as existed in the case, say, of a loan, a deposit, or a sale-for the facts of the contract he was seeking to enforce. But precisely the same thing occurred in all those other cases where the fixed categories of the law were found to be too narrow for the exhaustless profusion of legal relations'. they all involve an entrusting of property by one person to another (with a duty in that other to restore it), so that the 'res,' in this instance, determines both the ground and the nature of the obligation. Accordingly the nominate real contracts are real contracts to this very day: a claim for a return of property can only be supported on the ground of a previous delivery. But the innominate real contracts contracts for mutual performance and counter-performance-have undergone a change: their true nature has gradually asserted itself, and modern law, which recognizes consensus on principle as actionable, treats them accordingly as consensual. The following examples will illustrate the manner in which the procedure $79. Ex eo pr. I. quib. mod. re contrahitur obl. (3, 14): Re contrahitur praescriptis verbis was adapted to differ- has performed his part under a compromise wishes to exact counter-performance from his adversary.-On the actio praescriptis verbis cp. Pernice, Labeo, vol. iii. p. 88 ff. and ZS. d. Sav. St., vol. ix. p. 248 ff.; Gradenwitz, Interpolationen in d. Pandekten (1887), p. 122 ff. (with Lenel's remarks thereon in the ZS. d. Sav. St., vol. ix. p. 181). Gradenwitz has succeeded in proving that the 'actio' praescriptis verbis owes its origin to the Byzantine jurisprudence, and that the compilers inserted it in the Corpus juris by means of an interpolation. The term used by the classical Roman jurists was never actio praescriptis verbis (it being just the essence of these cases that they were not covered by a fixed individual actio), but always praescriptis verbis agere, because the procedure in question was a general form of procedure available in cases of a widely different character. est. Alioquin, mercede interveniente, locatus tibi usus rei § 79. videtur. Gratuitum enim debet esse commodatum. L. 5 pr. D. de praescr. verb. (19, 5) (Paulus): Naturalis meus filius servit tibi et tuus filius mihi. Convenit inter nos ut et tu meum manumitteres et ego tuum. Ego manumisi, tu non manumisisti; qua actione mihi teneris quaesitum est. In hac quaestione totius ob rem dati tractatus inspici potest qui in his competit speciebus: aut enim do tibi ut des; aut do ut facias; aut facio ut des; aut facio ut facias. § 80. The Verbal Contract. The verbal contract of Roman law is called 'stipulatio.' It arises § 80. ' verbis,' i. e. by the employment of words in a particular form, in the form, namely, of question and answer. The creditor asks the debtor : spondesne mihi centum dare? The debtor answers: spondeo. This form of sponsio was regarded as specifically Roman (i.e. as being juris civilis), and could only be employed, therefore, among Roman citizens'. But instead of saying 'spondesne,' the creditor might also use the word 'promittisne' or some similar term. And these latter forms were regarded as being juris gentium and could therefore be validly employed by aliens as well as citizens. In Justinian's law it is immaterial what words are used. All that is essential is that the obligatory consensus shall be expressed in due legal form by a question on the part of the creditor and a corresponding answer on the part of the debtor. Given these conditions, the contract is valid and actionable on the ground of the form in which the words are put, and it is immaterial whether the debtor received any consideration for his promise or not. All that the creditor need prove is that, as a matter of fact, the stipulatio was concluded. The debtor's obligation rests on the verba and on them alone'. 1 As to the manner in which sponsio was developed from a religious act v. supra, p. 66, n. 14. The fact that such a sponsio originally only gave rise to a moral obligation (an obligation towards the gods), left its traces even in classical Roman law, where certain 60HM: LEDLIE Dd kinds of stipulationes, e.g. the stipulatio In its essence stipulatio is an oral |