2 tium quam contrahere. Item is cui res aliqua utenda datur, id est commodatur, re obligatur et tenetur commodati actione. sed is ab eo qui mutuum accepit longe distat: namque non ita res datur, ut eius fiat, et ob id de ea re ipsa restituenda tenetur. et is quidem qui mutuum accepit, si quolibet fortuito casu quod accepit amiserit, veluti incendio ruina naufragio aut latronum hostiumve incursu, nihilo minus obligatus permanet. at is qui utendum accepit sane quidem exactam diligentiam custodiendae rei praestare iubetur nec sufficit ei tantam diligentiam adhibuisse, quantam suis rebus adhibere solitus est, si modo alius diligentior poterit eam rem custodire: sed propter maiorem vim maioresve casus non tenetur, si modo non huius culpa is casus intervenerit: alioquin si id quod tibi commodatum est peregre ferre tecum malueris et vel incursu hostium praedonumve vel naufragio amiseris,

other, even naturaliter: 'si quod dominus servo debuit manumisso solvit, quamvis existimans ei aliqua teneri actione, tamen repetere non poterit, quia naturale agnovit debitum' Dig. 12. 6. 64, 'indebitum est non tantum, quod omnino non debetur, sed et quod alii debetur, si alii solvatur, aut si id, quod alius debebat, alius, quasi ipse debeat, solvat' Dig. ib. 65. If the defendant in an action in which 'lis crescit in duplum' (Tit. 27. 7 inf.) admitted his liability and paid the single damages, and subsequently was able to show that in fact he had not been liable, he could not recover the money as indebitum (loc. cit., Gaius ii. 283), on the ground that his voluntary payment was in effect a compromise, and so by implication a contract. On this principle money paid under a supposed but non-existent judgment was irrecoverable, Dig. 10. 2. 36: conversely, if, though there is an actual debt, the debtor pays something different from what he really owes, he can recover, Dig. 12. 6. 32. 3.

(2) The payment must be made in error: 'et quidem si indebitum ignorans solvit, per hanc actionem condicere potest: sed si sciens se non debere solvit, cessat repetitio' Dig. 12. 6. 1. 1: and this in some cases even if the mistake was one of law, Dig. 36. 4. I pr.; 12. 6. 32. 2.

(3) The payment must be accepted by the payee in good faith; i.e. he must believe the debt to be due: else he commits theft, and should be sued by condictio furtiva, which excludes the condictio indebiti: Dig. 47. 2. 43; 13. I. 18.

The defendant in condictio indebiti, if judgment went against him, was not bound to restore the whole of what had been paid him, but only so far as he was enriched by the payment at the time of litis contestatio: 'bonae fidei possessor in quantum locupletior factus est tenetur' Dig. 12. 6. 3; ib. 26. 12; ib. 32. pr.

§ 2. The duties of the borrower in a commodatum besides that of rea

dubium non est, quin de restituenda ea re tenearis. commodata autem res tunc proprie intellegitur, si nulla mercede accepta vel constituta res tibi utenda data est. alioquin mercede interveniente locatus tibi usus rei videtur: gratuitum enim debet esse commodatum. Praeterea et is, apud quem 3 res aliqua deponitur, re obligatur et actione depositi, qui et ipse de ea re quam accepit restituenda tenetur. sed is ex eo solo tenetur, si quid dolo commiserit, culpae autem nomine, id est desidiae atque neglegentiae, non tenetur: itaque securus

sonable care (diligentia, for which see Excursus VI at the end of this Book) were (1) to restore the object lent at the time agreed upon, or so soon as the purpose for which it was lent was satisfied: it could be redemanded earlier only upon breach of another general term of the contract, viz. (2) to use it only for the purpose for which it was lent to use it for others was theft, if the borrower was aware that the other would not have permitted it, Bk. iv. 1. 6-8 inf., (3) to return it in as good condition as when received, excepting such deterioration as naturally results from its use, or as might reasonably have been expected: 'si reddita quidem sit res commodata, sed deterior reddita, non videtur reddita, quae deterior facta redditur, nisi quod interest praestetur: proprie enim dicitur res non reddita quae deterior redditur' Dig. 13. 6. 3. 1: for the exceptions see ib. 23, and 5. 7, cited in Hunter's Roman Law p. 302, (4) to restore not only it, but also any gain which he may have made by using it in a manner not authorized by the contract, Dig. ib. 13. 1.

Like depositum, pignus, and mandatum, commodatum is said to be an imperfectly bilateral contract: i.e. as a general rule, only one of the parties (the borrower) is bound, and only one (the lender) is entitled. But very often a liability of the latter will arise from circumstances posterior to the contract itself: thus, in commodatum, though (4) supr. implies that all ordinary expenses in connection with the object lent must be borne by the borrower, the lender will be bound to indemnify him for any extraordinary costs necessarily incurred: e.g. 'quicquid in rem commodatam ob morbum vel aliam rationem impensum est a domino recipi potest' Paul. sent. rec. 2. 4. I: or for any injury caused by it to the borrower or his property, if this can be attributed to the fault of the lender : e.g. Dig. 13. 6. 22. These duties can be enforced against the lender either by retentio (lien) or by actio commodati (contraria).

§ 3. Like commodatum, depositum was a gratuitous contract: in the absence of special agreement, the depositary's duties were as follow: (1) to take the same care of the res deposita as he took of his own: 'nisi tamen ad suum modum curam in deposito praestat, fraude non caret : nec enim salva fide minorem his quam suis rebus diligentiam praestabit' Dig. 16. 3. 32, hence he was not answerable if the property was stolen, though as a rule it was presumed that allowing theft argued absence of diligentia exacta, Dig. 17. 2. 52. 3: (2) to return it in as good condition

est qui parum diligenter custoditam rem furto amisit, quia, qui neglegenti amico rem custodiendam tradit, suae facilitati

as when delivered to him, unless its deterioration is due to causes not within the ken of that degree of diligence which he is bound to show, Dig. 16. 3. 1. 16, (3) to restore it (and any fruits it may have borne while in his custody, Dig. 22. 1. 38. 10) on demand: even if a time was agreed upon for its return, he must give it up before if required, Cod. 4. 34. 11. pr., Dig. 16. 3. I. II. The obligation to return a depositum was absolute so that even if the depositary alleged that it belonged to him, he must first give it up, and then might claim the dominium by real action, Cod. 4. 34. 11. Lastly, (4) he might not use the depositum: such use without the depositor's consent amounted to theft, Bk. iv. 1. 6 inf., unless made bona fide, in which case he must give up all profit which had accrued to him thereby, Cod. 4. 34. 4.

:

The same duties might be incurred ex post facto by the depositor as by the commodator, but he was required to show a higher degree of diligentia, the contract being in his interest alone: the depositarius, however, could enforce them only by actio depositi (contraria), not by retentio or lien, Cod. 4. 34. 11. A peculiarity of the actio depositi directa was that in it no compensatio or set off by the defendant was allowed, Bk. iv. 6. 30 inf.

If the deposit was occasioned by pressing and irresistible necessity, e.g. by tumultus, incendium, ruina, or naufragium-the liability of the depositarius was doubled in respect of damages: this is usually called depositum miserabile: 'de eo, quod tumultus, incendii, ruinae, naufragii causa depositum est, in heredem de dolo mortui actio est pro hereditaria portione et in simplum et intra annum quoque : in ipsum et in solidum et in duplum et in perpetuum datur' Dig. 16. 3. 18: cf. Bk. iv. 6. 17 and 23 inf. The liability had always been in duplum when the deposit was made by fiducia in other words, a denial of the trust was treated as a furtum nec manifestum. When the praetor made a violation of the duties incurred by mere acceptance of detention actionable, he reduced the damages by one half: 'ex causa depositi lege duodecim tabularum in duplum actio datur, edicto praetoris in simplum' Paul. sent. rec. 2. 12. 11. Two varieties of contract are sequestration and the so-called depositum irregulare. The first is the deposit of property by two or more persons in order to withdraw it from the disposition of both or all, especially where the title to it is in dispute: here the depositarius, or, as he was specifically called, sequester, might by special arrangement have civil possession (p. 323 supr.) in order to prevent acquisition of the object per usucapionem by any of the claimants, Dig. 16. 3. 6. Depositum irregulare exists where a res fungibilis is deposited with the agreement that the depositary shall become its owner, and only be bound to return a similar quantity and quality. The periculum rei rests with him; i.e. if it is accidentally destroyed, lost, or stolen, he alone suffers; but he has the right to use it. The transaction differs from mutuum, which it so closely resembles, in

id imputare debet. Creditor quoque qui pignus accepit re 4 obligatur, qui et ipse de ea ipsa re quam accepit restituenda tenetur actione pigneraticia. sed quia pignus utriusque gratia datur, et debitoris, quo magis ei pecunia crederetur, et creditoris, quo magis ei in tuto sit creditum, placuit sufficere, quod ad eam rem custodiendam exactam diligentiam adhiberet:

the intention of the parties: a mutuum is given in the interest of the borrower, or, if payment of interest be stipulated for, in that of both parties: a deposit of this kind is made in the interest of the depositor only and the difference was material, for by the actio depositi, which was bonae fidei, interest was recoverable, whether due by agreement or on account of mora. The commonest illustration of the contract is to be found in banking; if money were deposited unsecured by key, seal, or other fastening, it was presumed to be a depositum irregulare: '. . . . idem iuris esse in deposito: nam si quis pecuniam numeratam ita deposuisset, ut neque clausam neque obsignatam traderet, sed adnumeraret, nihil aliud eum debere, apud quem deposita esset, nisi tantundem pecuniae solvere ' Dig. 19. 2. 31.

§ 4. As a source of real rights, pignus has been already discussed, p. 316 sq. supr. Justinian's requirement of exacta diligentia in the pledgee, though irreconcileable with Gaius in Dig. 13. 6. 18. pr. (where only that qualem in suis rebus, etc. is exacted), is confirmed by Ulpian and Paulus in Dig. 13. 7. 13. 1; ib. 14. Some difficulty is occasioned by the word 'sufficere ;' possibly the jurist (perhaps Gaius) from whom the text was derived, after describing commodatum, and saying that the borrower was answerable for exacta diligentia, went on 'in pledge, on the other hand, it is sufficient that the pledgee should be as careful as in suis rebus ;' and the compilers of the Institutes, while altering the degree of diligentia to agree with Ulpian and Paulus, omitted to alter sufficere into some such word as requiri (Schrader).

The chief other duties of the pledgee were (1) to return the property pledged when the debt was paid, or the ius pignoris otherwise determined. The general rule too is that he must either give up to the pledgor all the fruits or other profit derived from the property, or deduct their value from the amount of the debt, Dig. 13. 7. 22. pr. : but on this point there was often some special agreement, e. g. antichresis. (2) If he exercised the right of sale, he was bound to hand over to the pledgor only what remained after discharging the principal debt with interest, unless by his own fault he sold it for less than its real value: in which case he was liable to pay the difference himself.

The possible duties to which the pledgor might become liable ex post facto correspond to those which have been noticed under commodatum : he was also bound (1) to discharge all debts which the pledgee might incur in his efforts to sell the property at the highest possible price, Dig. 13. 7. 22. 4; (2) to deliver it up when required for sale, if it had

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quam si praestiterit et aliquo fortuitu casu rem amiserit, securum esse nec impediri creditum petere.

been left in his hands on hire or as precarium; (3) to compensate his creditor for any loss he might have suffered through his pledging to him a res aliena, and so constituting in his favour an unreal ius pignoris, Dig. 13. 7. 1. 2.

The principle of the real contracts is part performance: their causa civilis was the fact that one of the parties had done all that he had primarily undertaken. Shortly after the fall of the Republic, and perhaps, as has been supposed, through the influence of the jurist Labeo (Dig. 15. 5. 1. 1; ib. 19. pr.; ib. 20. pr.), the Roman contract system received a considerable extension by a more general recognition of this principle. Every agreement, even though not belonging to any of the three hitherto established classes of contract, in which an act on the one side was the consideration for an act on the other, was at length, though only by a gradual development, held enforceable by action at the suit of that party who had performed all to which he was bound under its terms: 'sed et si in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit, esse obligationem, ut puta dedi tibi rem, ut mihi aliam dares, dedi, ut aliquid facias, hoc σvváðλayμa esse, et hinc nasci civilem obligationem' Dig. 2. 14. 17. 2. The essential marks of such actionable agreement thus are (1) mutuality; there must be a σvváλdayμa, e.g. an act must be promised on the one side in return for an act on the other; (2) there must have been performance on one side; the mere bilateral agreement gives rise to no civil obligation: 'item emptio ac venditio nuda consentientium voluntate contrahitur, permutatio autem ex re tradita initium obligationi praebet, alioquin, si res nondum tradita sit, nudo consensu constitui obligationem dicemus, quod in his duntaxat receptum est, quae nomen suum habent, ut in emptione, venditione, conductione, mandato' Dig. 19. 4. I. 2.

Such agreements are by the modern civilians called innominate (real) contracts; the Romans themselves do not call them 'contractus,' and in fact have no general designation for them. Though they are roughly classified by Paulus according to the possible acts which might be the respective considerations for one another ('aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias' Dig. 19. 5. 5. pr.), the more usual clue to their existence is the mention of the action by which they were pursued, the actio civilis in factum or praescriptis verbis (Tit. 24. 1 and 2 infr.), by which the party who had performed could exact counter performance or recover damages from the other; against him no action lay until such counter performance had ensued, so that, if that other refused to keep his promise, and his own part of the agreement had consisted in a 'dare,' he could redemand what he had conveyed by the older remedy known as condictio causa data causa non secuta; or he was free to change his mind, and sue for reconveyance, as it is said, 'ex mera poenitentia:''sed si tibi dedero, ut Stichum manumittas, si non