II. The character or quality of a legal act.

It was sometimes convenient to characterize and classify acts by reference to the immediate causes from which they sprang, the circumstances which surrounded them, and their immediate consequences.

(1) Thus some acts, such as testamentary dispositions, the occupation of ownerless property, the acceptance or refusal of an inheritance, the management of business, a mere promise, implied the presence of a single agent and no more. Other acts, including every species of agreement and contract, and most modes of transferring property, implied the presence of two agents or more.

(2) Some acts simply procured an advantage (gratuita, lucrativa); other acts either procured no advantage, or only procured one in return for a proportionate sacrifice (onerosa).

(3) Some acts were done wholly in view of the interests of the living agent and in sole contemplation of life; other acts were done in contemplation of the death of the agent and in view of the interests of various representatives of him when he shall be dead (inter vivos and L. 25, D. (v. mortis causa).

2).

(4) Some acts were done in pursuance of the rules of the jus civile, and others of those of the jus gentium; some acts were based on the strict letter of the law, and some on good faith (stricti juris, bonæ fidei); some acts required formality and precision in their execution, and others did not (solemnia, munus solemne); some acts concerned the alienation or transfer of rights to another, other acts only concerned the renunciation or surrender of a right without imparting any title to another person (alienatio and renunciato). The general rule was, that in the case of a right not yet acquired, a formal renunciation of it bound the person making it and was irrevocable.

L. 4, C. (vi.
31). L. 1, § 6,
D. (xxxviii. 9).

An act was especially a manifestation of the agent's will. But there were cases in which a manifestation of will was conveyed, or was presumed by law to be conveyed, by mere abstinence from action. Thus, consent might be

L. 142, D.

(1. 17). L. 7, $ 1, L. 12, D.

(xxiii. 1).

tacit as well as express, in cases where a legal or a moral duty of speech lay on the person who intended not to consent. This was especially the case when the condition of persons was involved, as on parental consent to a marriage. So also certain rights, as servitudes or easements, might be lost by mere abstention to exercise them for a certain length of time; and rights might be retained by mere continuance L. 13, § 11, of exercise, as in the case of holding over on D. (xix. 2). the expiration of a lease.

Generally the will might be manifested by any mode of communication which was practically effective for the purL. 38, D. pose, as by speech, by gesture, by writing, or by (xliv. 7). signs; but in certain cases the law determined beforehand the specific acts which would alone be accepted as sufficient manifestations of will, and, in other cases, imposed additional and special formalities which must be annexed to the essential act. In some cases, formal words and gestures; in many cases, writing; in some, "tradition," or handing over a thing, or a symbolic part of it; in some cases, the attestation of witnesses; in other L. 2, J. (ii. 7). cases, registration by a public authority (insinuatio); in others, an act of judicial authority ( jurisdictio voluntaria, as in the cases of adoption and manumission), were indispensable.

REPRESENTATION.

There were some cases in which an act could be effectually performed by a deputy or substitute. This substitution might be strictly limited to performing the physical movements in which the act consists, in exact conformity with the wishes and intention of the "principal," who is absent; or the substitution might extend to allowing the deputy some discretion of his own, as to when, how, and to what extent, to do acts of a certain class in the principal's name.

The first sort of substitution (per nuntium) was L. 15, D. (xiii. generally allowed, and was said to be only "ministerial." The second kind was allowed

5).

only on certain restrictions, which there had, however, in imperial times been an increasing tendency to relax. Corporate bodies and wards of different kinds were, of course, represented for almost all purposes by their proper official guardians. For all purposes of acquisition every one was effectually represented by his children, slaves, and other persons, whether really free or not, whom he bond fide held in his possession as slaves. The broad

J. (ii. 9).

But this rule was well- L. 2, C. (iv.

27). L. 3. J. (ii.

9). D. (iii. 3).

and earlier rule was, that no acquisition could be made by a free person for the benefit of another. more and more qualified through the recognized practice, fortified by the imperial legislation, of allowing the appointment of a special agent or "procurator," charged with a greater or less amount of responsibility, and with respect to a single piece of business or to all the business affairs of the principal.

The agent so appointed might, in Justinian's time, not only acquire possessions and rights of ownership generally for the benefit of his principal, but might acquire rights of pledge and mortgage, and rights of action generally. He could be appointed in the most informal or indirect way, differing therein from the earlier cognitor or attorney-atlaw, who could only be appointed by certain formal words.

G. (iv. 83).

In the case of a person undertaking the affairs of another (negotiorum gestio), whether for his benefit or otherwise, without express authorization, a subsequent approval of what had been done produced a retro-active effect and assimilated the act to one done with his previous L. 7, C. (iv.

consent.

28).

ILLICIT ACTS AND OMISSIONS.

Besides the acts out of which rights arose, by which they were exercised, or through which they were terminated, there were acts (or omissions, which are, in truth, only acts looked at from another side) which violated the rights of other persons, however those rights were grounded. These

illicit acts proceeded either from a distinct intention of doing wrong (dolus), or merely from an absence of that mental alacrity and attention which in the special circumstances the law demands (culpa). The amounts of mental alacrity and attention demanded by the law in different circumstances were broadly distinguished into that the absence of which constituted a grave delinquency and that the absence of which constituted a light delinquency (culpa lata, culpa levis). Even a third form of delinquency, the lightest of all, is noticed in one passage of the Digest (culpa levissima).

A positive, though rough, judicial test for L. 44, D. (ix. 2). the purpose of measuring delinquency was supplied by the care and attention the person concerned habitually bestowed on his own affairs, or, where this test was not applicable, by the care and attention which an average man of business bestows on his own affairs. Thus, a grave delinquency was where a want of attention was manifested, which almost every one in such a case gives; and also where a person, who is bound under the circumstances to bestow special attention, fails to bestow L. 32, D. (xvi. as much attention on the affairs of another as 3). he habitually does on his own (culpa lata in concreto). A light delinquency is when a person, not bound to bestow any special degree of attention, fails even to bestow as much as people usually do in respect of their own affairs, or, at least, as much as he generally does in respect of his own affairs. The degree of attention demanded by law in special cases and, therefore, the question of liability only for malice, as also different degrees of carelessness, will be treated in later chapters.

L. 65, pr. D.
(vii. 1). L. 72,

D. (xvii. 2).
L. 17, D.
(xxiii. 2).

NULLITY OF Acts.

After an act had been done and some of its consequences had followed, it might (1) be found that some legal infirmity had attached to the performance which rendered the act invalid; and this infirmity might extend to the capacity

of persons, the quality of things, or the formality and legality of the transaction as a whole. Or, (2) subsequent events might happen which might render invalid an act which had been originally valid. Thus, the change of status of a testator, or even an increase in his family, might have the effect of rendering nugatory a previous will.

The nullity or original invalidity of an act was either such that any one affected by it might invoke it, or only such as could be invoked by particular persons in whose favour it was recognized. An instance of this last case is where one contracts with a ward without his tutor's authorization. The act is null whenever the ward or his tutor chooses to disclaim it, but not otherwise. L. 13, § 29, So also there were cases in which notice of D. (xix. 1). termination of partnership given to the agent of the other partner rendered the partnership non-existent so far as the partner giving it was concerned, but so far as the other partner was concerned only if he ratified his agent's act of accepting the notice. It depended on his arbitrary will whether the act of dissolution should be null L. 65, § D. or not. Where the nullity was such that it (xvii. 2). might be invoked by any one concerned who pleased, no mere lapse of time could cure the original defect. In the other case, lapse of time might raise a presumption that the person entitled to interfere consented to L. 201, 202, acquiesce. In the case of a complex transac- D. (1. 17). tion consisting of many distinct acts, the nullity of those acts, which were the fundamental or essential part of the transaction, imported the nullity of the whole. The nullity of merely accessory or independent acts affected those only, and not the rest.

L. 178, D. (1. 17). L. 1, § 5, D. (xlv. 1).

There were cases in which an act was presumptively valid and not tainted with any inherent infirmity, and yet, for reasons of public policy, a right was accorded to certain persons, in certain clearly defined circumstances, of impeaching its validity. Obvious instances are supplied by the case of discovering a latent defect in a purchase, of impeaching a will through want of a fair provision for natural claims (querela inofficiosi), and revoking donations on