(6) IMPOSSIBLE OR ILLEGAL OBJECTS. For various reasons the object of an obligation might be treated as impossible, in which case the obligation was, from the first, null and void. Thus, an agreement might be made to convey a specific thing, which did not exist, or which was not legally transferable or marketable; or for an immoral or illegal purpose, as gaming contracts (alea), to be alluded to lower down; or involving the performance of an impossible condition. In Justinian's time, however, a valid promise might be made the performance of which was to take place "the day before the pro- 13 J. (iii. 19), misor's death" or after his death. C. (iv. 11). D. (xi. 3). L. ult. C. (i. 4), An instance of a class of objects specially rendered illegal on the ground of their presumed immorality is supplied by gaming contracts. These C. (iii. 43), were forbidden in general terms by the prætor's edict, and the houses in which they were made placed under penal discipline. Money paid in pursuance of bets, especially with dice (alea lusus), could not be recovered back. The only exceptions were bets on certain athletic sports, as running, throwing the javelin, horseracing and chariot-racing, and wrestling. These exceptions were introduced by a senatus consultum. A series of laws (lex Titia, Publicia, Cornelia) still further facilitated this class of gaming contracts, where "the subject of contention was valour" (pro virtute certamen), and allowed a formal engagement to be made (sponsio). The constitutions of the emperors maintained the same policy, Justinian especially forbidding the deacons, priests, and even bishops to play-a sort of game at wooden horse (equi lignei) presenting the chief temptation. Not only could such contracts not be sued upon, nor money paid be recovered back, but fine and penal servitude were imposed as penalties; ecclesiastical ministers being suspended and temporarily excommunicated for the first offence, and deprived of office as well as compelled to undertake the unpopular duties of a civic functionary in their native town or some other provincial town. Justinian continued the old exceptions in favour of so-called "manly" sports; a limit, however, was imposed on the amount of the wager, the utmost permissible bet in the case of the richest class of the community being a solidus -about equal to an English sovereign. Another instance of an illegal object invalidating an engagement on which an obligation purported to be founded, is that of a promise to marry (sponsalia). At one time, that is when, by the Julian law (B.C. 90), the privilege of Roman citizenship was largely extended throughout the towns of Italy, it seems that this contract (if formally made by questions and answers) could be sued upon, and the damages payable were judicially assessed with reference to the cause of breaking off the engagement and Aulus Gell. N.A. (iv. 4). to the pecuniary prospects of the marriage. But the broad principle subsequently appears in the Digest, in the language of Paulus, that it tends to immorality (inhonestum visum, non secundum bonos mores) "to hold a marriage, existing or future, to be dependent on a penal bond." A plea of fraud could be set up against any attempt to enforce the bargain. The difficulty was often got over by an interchange of material guarantees (arrha), a return of which could be sued for. In Justinian's time, the contract for a future marriage between persons, one of whom subsequently, but before marriage, determined to take up in preference a religious and celibate life, could be broken off by the recalcitrant party, if the man, by recovering back the pledge (arrha) he had given; and if it were the woman, by her losing the pledge given by the man to her or to her friends, without recovering her own. Under the previous law, the woman, if recalcitrant in these circumstances, had to pay double the value of the pledge committed to her. There was still inequality, though not so great as before. L. 56, C. (i. 3). Other instances of the illegality of the objects vitiating engagements are supplied by the Cornelian law, alluded to in a passage of Gaius, and by the Senatus consultum Macedonianum, rendering non-actionable the loans by money lenders to expectant heirs, and the Senatus consultum Velleianum forbidding women to become sureties. These two latter laws are treated lower down in connection with the general subject of parties to obligations. Gaius (iii. 124). The Cornelian law forbade any one to bind himself as surety for another in one year to a greater amount than 20,000 sesterces. But there were certain excepted cases, as that of giving security for dower due, or for debts under a will, or generally under judicial order, or by legal permission. §2.-Parties to obligations. The subject of parties to obligations belongs, in great measure, to other parts of this treatise, in which the general incapacities of all classes of persons are discussed, including the special rights and duties of guardians, trustees in guardianship, and agents under an express or implied contract of agency (mandati, negotiorum gestorum), as well as those of slaves or other persons representing those in whose power they are. But some more particular observations either specially belong to this place or, for the sake of clearness and completeness, must be reiterated or anticipated here. The incidents of (a) age, (b) sex, (c) physical or mental infirmity, (d) marriage, and (e) insolvency might all affect the capacity of a person to become the subject of an obligation, -that is to acquire the rights and incur the duties involved by it as well as to fulfil an obligation undertaken or cast upon him either by law or by the events of life and the acts of others. Thus, as to (a) age, (b) sex, and (c) physical infirmity, one under the age of puberty (that is, fourteen years) could only acquire for himself, and independently of his guardian, such an obligatory relationship as, on the whole, was beneficial to him. He might do such acts as would make his position better, but not worse. The same disability extended, on occasions approved by the magistrates, to a N minor under twenty-five years; to women of a marriageable age; to insane persons, and prodigals proved to be wasting their hereditary estate; to the deaf and dumb, and persons permanently incapacitated from attending to their own affairs. Furthermore, the institution of the son's peculium introduced certain special obligatory disqualifications to be treated under that head. There were two special legislative acts by which the capacity of sons in their father's power, and of women, D. (xiv. 6). were severally restricted. One was known as C. (iv. 28). the Senatus consultum Macedonianum, which invalidated all engagements for monetary advances to sons in their father's power by refusing to creditors all right of action, even when afterwards the son was liberated from the D. (xvi. 1). parental control. The other was known as the C. (iv. 29). Senatus consultum Velleianum, which similarly invalidated all engagements made by women, in any form, for the purpose of becoming surety for others. If, however, they made a payment in pursuance of such an engagement, they could not recover it back. The condition of (d) marriage, even after the old subjection of the wife to her husband's control or manus was abolished, introduced the special disqualifications in respect of obligatory rights and duties involved in the institutions of the dos, the paraphernalia, and gifts to the wife after marriage, the account of which belongs to the subject of marriage generally. The general rule in such cases was that though the property was vested in the wife, the husband administered it in her name, and could make all the engagements necessary for that purpose, including the enfranchisement of slaves included in the dotal estate, the bringing of proprietary or quasi-proprietary actions, and bringing and defending actions on delicts in respect of injuries to dotal property, or for which the dotal proprietor is responsible. Even with the wife's consent, however, the husband could not, under Justinian's legislation, alienate, or in any way hypothecate, charge, or burden, the dotal estate. The wife, on the contrary, in the event of her husband seeming likely to become insolvent, might herself inter pose to take precautions that her dotal estate 15, C. (v. 15). was not wasted, nor herself and children deprived of the benefit of sustenance from it. Thus, when once there was good reason to believe her husband's means were getting so far reduced as to be unable to make good his liabilities, by an action for a restitution of the dotal estate the wife might exact security, or even temporary sequestration of the dotal property, in expectation of better times, or of her husband's death. According to the latest legislation of Justinian, she could recover the dotal estate in kind for all purposes as effectually as on the termination of the marriage. A limitation was, however, imposed, to the effect that the recovered estate must be employed for the current subsistence and needs of the wife and children. In the above way a wife might become a party to various sorts of obligation in respect of the dotal estate. I L. 22, D. (xxiv. 3). L. 29, C. (v. 12). Nov. (97, c. 6). In case of (e) insolvency, or of apprehended insolvency under Justinian's legislation, a trustee was ap- L. 9, D. pointed to enter into possession and sell the (xxvii. 10), debtor's property for the benefit of his creditor, J. (iii. 12). the residue (if any) being handed back to the debtor. This trustee (curator distrahendorum bonorum) became a party to all the obligations which these transactions successively involved. In the same way every person placed by the Prætor's interdict in possession of property, with charges and liabilities attaching to it, might have to discharge the various sorts of obligations thereby involved. Thus, when the Prætor accorded the rights of an heir, under the name. of bonorum possessionem, to one whom he regarded as having a natural, moral, or equitable, as opposed to a strictly legal, claim, the grantee in possession lay under all the liabilities. with respect to the payment of legacies and execution of trusts indicated by the deceased in the terms of a will valid for such purposes, or in a codicil to such a will, or in a codicil without any will at all. |