II. Receptum nautarum, cauponum, stabulariorum. A shipowner, innkeeper, or stablekeeper, who takes charge of property belonging to a traveller, is answerable for such property in like manner as though he had concluded an express contract to that effect. This liability was first introduced by the praetor. If the property in question is lost or injured, the traveller can sue for full damages by the actio de recepto, unless, indeed, the defendant (the shipowner, &c.) can prove that the loss was caused by the traveller's own negligence or by an unavoidable accident (vis major). L. 1 pr. D. nautae caup. (4,9): Ait praetor: NAUTAE, CAUPONES, NISI RESTITUENT, IN EOS JUDICIUM DABO. III. Negotiorum gestio. FORE RECEPERINT, Negotiorum gestio occurs where one person, without previous authority, manages another person's affairs, as, for example, where he conducts a lawsuit for a friend who is absent, or takes charge of a friend's property, or pays his debts. Such acts give rise to a relationship similar to mandatum. Under this relationship a right accrues in the first instance, and in all cases, to the person whose affairs are being managed (the principal, the dominus negotii) the right namely to require the negotiorum gestor to exercise omnis diligentia in the conduct of the matter he has undertaken. To enforce this right the dominus negotii has the actio negotiorum gestorum directa. It is only in certain circumstances that the negotiorum gestor acquires a right as against the dominus negotii, a right e. g. to be indemnified for expenses incurred. To enforce any such right the negotiorum gestor has the actio negotiorum gestorum contraria. § 1 I. de obl. quasi ex contr. (3, 27): Igitur cum quis absentis negotia gesserit, ultro citroque inter eos nascuntur actiones quae appellantur negotiorum gestorum; sed domino quidem rei gestae adversus eum qui gessit directa competit actio, negotiorum autem gestori contraria. Quas ex nullo contractu proprie nasci manifestum est; quippe ita nascuntur istae actiones, si sine mandato quisque alienis negotiis gerendis se optulerit: ex qua causa ii quorum negotia gesta fuerint etiam ignorantes obligantur. Idque utilitatis causa receptum § 88. § 83. est, ne absentium, qui subita festinatione coacti, nulli demandata negotiorum suorum administratione, peregre profecti essent, desererentur negotia, quae sane nemo curaturus esset, si de eo quod quis impendisset nullam habiturus esset actionem. IV. Tutela. As soon as a guardian enters upon his duties, there arises between him and his ward a relationship similar to mandatum. This relationship confers in every case a right on the ward, the right namely to require his guardian to show care in the management of the guardianship. But since the acceptance of the guardianship is compulsory, the guardian is only liable for failure to show the diligentia quam suis rebus adhibere solet. The ward's remedy against his guardian is the actio tutelae directa. It is only in certain circumstances that the guardian acquires a right as against his ward, e. g. when he has incurred any outlay. The guardian sues his ward by the actio tutelae contraria. § 2 I. eod.: Tutores quoque, qui tutelae judicio tenentur, non proprie ex contractu obligati intelleguntur (nullum enim negotium inter tutorem et pupillum contrahitur); sed quia sane non ex maleficio tenentur, quasi ex contractu teneri videntur. V. Communio. Communio, or community of property, gives rise, as between the co-proprietors, to a relationship similar to societas. The rights and duties of the parties inter se are as follows: (1) Either party can claim a partition from the other. If the thing is divisible, it is physically divided; if it is indivisible, one party is awarded the whole, subject to an obligation to compensate the other. (2) Either party can claim to be indemnified for expenses necessarily incurred on behalf of the other. (3) Either party is bound to show the diligentia quam suis rebus, i. e. he is bound to treat the common property with the same care as he would treat his own, failing which he is liable for damages. There are three kinds of communio, according as the parties have the same property, the same inheritance, or the same boundaries in common. 'Community of boundaries' occurs where § 88. the true boundaries are no longer ascertainable. Corresponding to these three kinds of communio there are three partition suits, or 'judicia divisoria.' Where common property is to be divided, the actio communi dividundo applies; where a common inheritance is to be divided, the actio familiae erciscundae; where common boundaries are concerned, the actio finium regundorum. By means of a judicium divisorium the plaintiff can assert not only his right to a partition, but also his right to 'praestationes personales,' i. e. to indemnification for expenses and to compensation for damage. So far, however, as a partition suit aims at a division, it belongs to the so-called 'judicia duplicia' (supra, p. 354), i. e. both parties sustain the same role in the suit, and the adjudicatio (supra, p. 334), or condemnatio (as the case may be), binds both parties to do whatever is necessary for the purpose of effecting the partition. : § 3 I. eod. Item si inter aliquos communis sit res sine societate, veluti quod pariter eis legata donatave esset, et alter eorum alteri ideo teneatur communi dividundo judicio quod solus fructus ex ea re perceperit aut quod socius ejus in eam rem necessarias impensas fecerit: non intellegitur proprie ex contractu obligatus esse, quippe nihil inter se contraxerunt; sed quia non ex maleficio tenetur, quasi ex contractu teneri videtur. VI. The heir, by entering on his inheritance, incurs a quasi-contractual obligation to pay over to the legatees all such legacies as he has been validly charged with by the testator. Cp. § 115. § 84. Pacts. An § 84. A pactum, or pact, is an informal declaration of consensus. informal release, or an informal compromise, would be an example of a pact. An obligatory pact is an informal obligatory declaration of consensus which the Roman civil law refused to acknowledge as a contract. The principle applied to pacts of this kind-so-called 'nuda pacta'—was that they gave rise, not to an actionable obligation, but only to what was called a 'naturalis obligatio,' i. e. to an obligation which, though not enforceable by action, could nevertheless § 84. be validly discharged by payment. In other words, if the debtor, of his own accord, fulfilled his informal promise, well and good; he could not recover the money he had paid by condictio indebiti (supra, P. 424). But, on the other hand, he could not be compelled to pay by actio. The only way in which effect could be given to a pact was by means of an exceptio, in cases namely where one of the parties, being the defendant in an action, was in a position to plead the pact by way of defence'. Nevertheless there were certain pacts-called 'pacta vestita '— which were enforceable by action. Of these some were actionable even according to the classical civil law; others were actionable by the praetorian law; and a third class by the later civil law (the imperial law). I. According to the classical civil law, and consistently with the general ideas inherent in that law, the so-called 'pacta adjecta' were actionable. Pacta adjecta were collateral agreements 'added ' there and then (ex continenti) to a bonae fidei negotium at the moment when the latter was concluded. Thus, if the parties to a contract of sale agreed that, in default of punctual performance, the defaulting party should pay a specified penalty, this penalty was recoverable by the action on the sale. A stipulatio to that effect was not needed. Every bonae fidei negotium bound the parties to do all that was required by bona fides. The good faith, therefore, on which the principal agreement was based, necessarily implied a duty to fulfil whatever was promised in the collateral agreement which was simultaneously concluded. If, however, the collateral agreement was concluded subsequently to the principal agreement, it could not be enforced by the action on the principal agreement (of which, in such a case, it did not form an integral part), and not being actionable for its own sake, it gave rise, not to an actio, but only to an exceptio. It should be noticed that the nonobservance of the requirements of a formal contract does not in itself convert the transaction into a valid pact. If the parties intended to conclude a formal contract, but failed to satisfy the necessary requirements of form, the result is, in case of doubt, not an informal agreement (which the parties never contemplated), but no agreement at all; cp. l. 1 §2 D. de verb.obl. (45,1). It is a mistake to take this passage as proving that a nudum pactum did not give rise to a natural obligation. II. Among pacts actionable by the praetorian law (pacta prae- § 84. toria) the 'constitutum debiti' was the most important. A constitutum debiti was a promise to discharge a subsisting liability, whether it were one's own (constitutum debiti proprii) or another's (constitutum debiti alieni). Such a promise, if given in the form of a stipulatio, was actionable by the civil law. The praetor, however, made it actionable, even when unaccompanied by any formalities, by granting the promisee the actio de pecunia constituta, an action which (as the name implies) was originally only available in the case of a constitutum for a money debt, and only in respect of pecunia credita (the term 'constitutum' signifying, in the old times, the informal fixing of a day for the repayment of money which was owed). A person might thus promise by constitutum to discharge the liability of another, and, if he did so, the obligation he incurred was more stringent than that of a surety. For whereas a fidejussor was released by anything that extinguished the principal debt, a constituens was only released by payment to, or material satisfaction of, the creditor. The constituens and the principal debtor were not (like the fidejussor and his principal) correal debtors, but were merely solidary debtors (supra, pp. 383, 384). III. According to the later imperial law, promises of a gift, and promises to give a dos (infra, § 95) were actionable in the shape of mere informal pacts (pacta legitima). But in the absence of a judicial insinuatio a promise of a gift was only binding to the extent of 500 solidi (supra, p. 223). L. 7 § 7 D. de pact. (2, 14): Ait praetor: PACTA CONVENTA L. 13 C. de pact. (2, 3) (MAXIMINUS): In bonae fidei contractibus |