§ 82. business or to make a journey in common. Societas is a bonae fidei negotium. Both parties are mutually bound to do not merely what they promised, but whatever is involved in the requirements of bona fides. Thus, amongst other duties, socii must exercise diligentia, but it need only be the diligentia quam suis rebus adhibere solet (scil. socius). A socius cannot be required to show a higher degree of care in partnership matters than he shows in his own affairs. It is a man's own fault if he chooses a careless socius. Bona fides further requires that the contract of societas shall be terminable by notice at any moment, unless indeed a definite time has been agreed upon during which the socii waive their right to give notice of withdrawal. If a socius gives notice without justification (i. e. either contrary to express agreement or contrary to good faith), the societas, it is true, is dissolved by the notice, but the partner giving it is bound to compensate his socii. Every partner has the actio pro socio against the other partners. Cp. supra, p. 213. pr. I. de soc. (3, 25): Societatem coire solemus aut totorum bonorum, quam Graeci specialiter Koopafíav appellant, aut unius alicujus negotiationis, veluti mancipiorum emendorum vendendorumque, aut olei, vini, frumenti emendi vendendique. § 1 eod. Et quidem si nihil de partibus lucri et damni nominatim convenerit, aequales scilicet partes et in lucro et in damno spectantur. Quod si expressae fuerint partes, hae servari debent. 4. Mandatum. Mandatum is a contract whereby one party agrees to execute gratuitously a commission received from the other. It is a bonae fidei negotium, and therefore binds both parties to do all that is required by bona fides. Thus the mandatary must execute his commission and-though he derives no benefit from the contracthe must show omnis diligentia, failing which he is liable to pay damages. On the other hand, the mandator is bound to recoup the mandatary for expenses incurred and, generally speaking, to A mere agreement to make a journey in common does not, in itself, constitute a societas. It only becomes a societas if the parties mutually promise one another certain acts with a view to this particular purpose, in other words, if the journey is undertaken at the joint expense. show omnis diligentia. The rights under the contract accrue § 82. primarily and in all cases to the mandator, i. e. to the person who gives the commission. Hence the action by which he sues the mandatary is called the actio mandati directa. The mandatary (i. e. the person who receives the commission) only acquires rights in particular circumstances. The mandatary's action against the mandator is called the actio mandati contraria. The commission may be coupled with a grant of plenary authority, i. e. with a grant of power to act in the name of the mandator; for example, to conclude a juristic act or to conduct a lawsuit in the name of the mandator. Where that is the case, the mandatary is authorized, at the same time, to act as the mandator's representative (supra, p. 232 ff.). From a mandatum-where the object is to place the mandatary under a legal obligation to execute his commission—we must distinguish mere advice (a so-called 'mandatum tua gratia'), which is not intended to create any such obligation, and is therefore neither a mandatum nor even a juristic act at all. A mandatum commissioning a person to do an act contra bonos mores is void, because an obligation to do an immoral act can never be created by legal means, neither by a bonae fidei negotium nor by a stricti juris negotium. § 7 I. de mand. (3, 26): Illud mandatum non est obligatorium quod contra bonos mores est, veluti si Titius de furto aut de damno faciendo aut de injuria facienda tibi mandet. Licet enim poenam istius facti nomine praestiteris, non tamen ullam habes adversus Titium actionem. § 13 eod. In summa sciendum est mandatum, nisi gratuitum sit, in aliam formam negotii cadere. Nam, mercede constituta, incipit locatio et conductio esse. $83. Quasi-Contracts. Where the facts of a case merely resemble a contract, but never- § 83. theless produce the same effect as a contract, we have a quasicontract. The following are examples of quasi-contracts : I. Enrichment sine causa and ex injusta causa. 83. Where, in view of the actual circumstances of the case, the enrichment of A at the expense of B appears inconsistent with the policy of the law, such enrichment is said to be sine causa; where the enrichment is directly opposed to the policy of the law, it is said to be an enrichment ex injusta causa. The person thus enriched (A) is bound to restore the amount by which he was enriched. The person (B) at whose expense A was enriched can proceed against A by condictio. a. Cases of enrichment sine causa. 1. Solutio indebiti. Solutio indebiti means the payment by mistake of money which is not owed. The person thus paying by mistake can sue for the recovery of the money by condictio indebiti. 2. Dare ob causam. Dare ob causam means the making over of property by one person (A) to another (B) in anticipation of some future event agreed upon between them, e. g. in anticipation of B's marrying C. Until the contemplated event has occurred, or as soon as its occurrence has become for some reason clearly impossible, there is, in the eye of the law, no sufficient consideration for the enrichment of B. A can therefore compel him by the condictio ob causam datorum, or, as it is also called, the condictio causa data causa non secuta, to restore the amount by which he was enriched. On the same principle a person who has performed his part under an innominate real contract-a contract of exchange (p. 398)-may always in Roman law avail himself of this condictio for the purpose of recovering what he gave. In other words, he has the choice between two remedies: he may sue either on the innominate real contract and claim counter-performance by the actio praescriptis verbis, or he may sue on the quasi-contract by the condictio causa data causa non secuta (unless indeed counter-performance has actually taken place), and claim restoration of the amount by which the defendant has been enriched. The right of the plaintiff to proceed in the second way is called the 'jus poenitendi1. The compilers were perhaps the first to introduce the 'condictio propter poenitentiam' into Roman law. It may have been intended to take the place of the actio fiduciae, which was available for the purpose of compelling a person who had received a thing subject to a trust under a mancipatio (or in jure cessio) 3. Cases where 'dare' fails to take effect. Under this heading we include cases where A makes over property to B, intending thereby to produce a legal result (e. g. to give a loan to B), but failing for some reason to produce the intended result. The reason may be, for instance, that there is no corresponding intention on the part of B, B thinking, perhaps, that the money was meant as a gift. In such cases A cannot indeed sue B on a contract of loan, but he may proceed by condictio sine causa for the recovery of the amount by which B was enriched. The same principle applies, where A, intending to give B a loan, gives B coins which are not his (A's), the effect being that B does not become owner of the coins by traditio, but only by consumption, i. e. by the mixture of the money which is not his (B's) with money of his own (supra, p. 322). And the same condictio sine causa is available, generally speaking, wherever one person receives something which ought to have been received by another. For example: A sells a thing which was bequeathed to B; the thing is destroyed; B cannot therefore proceed by rei vindicatio, but he can sue A (the vendor) by the condictio sine causa for the amount realized by the sale. The object, then, of the condictio sine causa is, broadly speaking, to rescind any transaction whereby a person is erroneously enriched, provided always the equitable claim of the plaintiff is not counteracted by an equitable defence on the part of the defendant. b. Cases of enrichment ex injusta causa. 1. Theft. The possession of stolen property enriches the thief at the expense of the owner in a manner contrary to law. The owner can compel the thief, by a condictio known as the 'condictio furtiva,' fiduciae causa (in other words, under a fiducia cum amico contracta, supra, top of p. 393), not only to carry out the trust, but also to restore the thing. Cp. Gradenwitz, Interpolationen, p. 146 ff.; Lenel, ZS. d. Sav. St., vol. ix. p. 182. Karlowa (Röm. RG., vol. ii. pp. 771, 772) takes a different view. Roman law even assumed that the thief was enriched by acquiring owner ship in the stolen property. Hence the note. § 83. § 83.—the name however does not occur before Justinian-to restore the property or to pay him damages. 2. Dare ob turpem causam. Dare ob turpem causam means the making over of property under circumstances which render its acceptance immoral. The payment of ransom extorted by brigands would be a case in point. The person giving the property can sue by the condictio ob turpem causam for its recovery, even where the event in contemplation of which the property was given-the release of the prisoner in the case supposed -has actually taken place, subject however to the condition that the giving of the property was not also immoral: a man who hired an assassin, for example, could not sue by condictio ob turpem causam for the recovery of the hire-money. 3. Dare ex injusta causa. Dare ex injusta causa means the paying of a debt which is disapproved by the law, e. g. the paying of interest at a usurious rate. And the term is applied, in a general way, to all cases where one person is enriched at the expense of another in a manner which the law regards as unjust, as, for example, where a malae fidei possessor is enriched, at the expense of the owner, by the fruits he has consumed. In all such cases the person enriched is compellable by the condictio ex injusta causa to restore the amount by which he has been enriched. L. II D. de condictione indebiti (12, 6) (ULPIAN.): Et quidem si quis indebitum ignorans solvit, per hanc actionem condicere potest: sed si sciens se non debere solvit, cessat repetitio. L. 7 § 1 D. de condictione causa data causa non secuta (12, 4) (JULIAN.): Fundus dotis nomine traditus, si nuptiae insecutae non fuerint, condictione repeti potest: fructus quoque condici poterunt. L. 1 § 2 D. de condictione ob turpem vel injustam causam (12,5) (PAULUS): Quod si turpis causa accipientis fuerit, etiam si res secuta sit, repeti potest. L. 2 eod. (ULPIAN.): Utputa dedi tibi ne sacrilegium facias, ne furtum, ne hominem occidas. |