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utilibus actionibus satis tibi facere compelletur, quatenus tamen ipse debet' Cod. 8. 17. 4), and is not prejudiced if (before notice) he allows the creditor to set the claim off against a converse one of his own. Opinions differ as to the necessity of express notice by the assignee himself. Many writers add that successive and competing assignees rank, as against the debtor, in the order, not of the assignments, but of the notice; but this is denied by others, and seems to be unsupported by textual authority.
(2) After notice the debtor is no longer entitled to treat the assignor in any way as his creditor, and, if sued by him, is protected by exceptio, Dig. 2. 14. 6.
(3) The right passes to the assignee with all the defects and all the advantages incident to it while vested in the original creditor. So far as the former are concerned, this may be expressed by saying that the assignment takes place 'subject to equities,' Cod. 4. 39. 8, i.e. the assignee can be met by the same defences as might have been urged against the original creditor at any moment before notice of the assignment was received, except such as are purely personal (e.g. the exceptio pacti de non petendo, if available only against the releasor). Among the advantages incident to the chose in action which pass with it are rights of security, both real and personal, and unsatisfied claims to interest; the assignee may deal with it as if he himself had been creditor ab initio ; e.g. he may assign it afresh, release it, or use it as a set-off.
(4) In respect of certain assignments for valuable consideration, there is an important enactment of Anastasius (lex Anastasiana, Cod. 4. 35. 22), to the effect that no purchaser of a chose in action should be able to recover more from the debtor than what he had paid himself, with ordinary interest, even though it was alleged that the transaction was in part a gift. So far as the actual debt exceeded the purchase money, it was ipso facto cancelled.
The Romans did not carry their theory of assignment beyond the actio utilis; for although it is true that the assignee's right to sue was often, and perhaps usually, attested by a cautio or bond of the debtor, transferred by the assignor for evidentiary purposes, yet this cautio was no embodiment of the right after the fashion of negotiable instruments in modern law, which are exempt from the rules relating to notice and equities. As Mr. Poste remarks (Gaius p. 431), “the complete transferability of obligations was unknown to jurisprudence until modern legislation gave validity to contracts with an incerta persona, i.e. with a person unascertained except as a member of a class; in other words, to papers payable to the holder or bearer.' The nearest approach to be found in Roman law to this modern refinement of transferability is the imposition of an obligation on the successive holders for the time being of a parcel of land: 'imperatores Antoninus et Verus rescripserunt, in vectigalibus ipsa praedia, non personas conveniri, et ideo possessores etiam praeteriti temporis vectigal solvere debere, eoque exemplo actionem, si ignoverint, habituros' (i.e. against their predecessors).
DOLUS, CULPA, AND CASUS.
A PARTY to a contract or quasi-contract may commit a breach of its terms, express or implied, either intentionally or unintentionally. Deliberate breach (dolus) always entailed liability—dolus semper praestatur—which could not be evaded even by an explicit agreement to the contrary: Celsus putat non valere, si convenerit, ne dolus praestetur: hoc enim bonae fidei iudicio contrarium est: et ita utimur' Dig. 50. 17. 23: cf. Dig. 2. 14. 27. 3. Certain unintentional breaches were treated in the same manner, whether consisting in acts of commission or of omission : viz. those which arose from want of ordinary care, from a carelessness so excessive that no ordinary man would have been guilty of it: this is called culpa lata, and for it, even in contractual and quasi-contractual relations, one is always answerable no less than for dolus, or deliberate and intentional breach : 'lata culpa est nimia negligentia, id est, non intellegere quod omnes intellegunt' Dig. 50. 16. 213. 2 : ib. 223. pr., ‘lata culpa plane dolo comparabitur' Dig. 11. 6. 1. I, ‘prope dolum est' Dig. 17. 1. 29. pr., 'dolum repraesentat' Dig. 47. 4. I. 2, dolus est' Dig. 50. 16. 226: 16. 3. 31. .
But if a man's negligence or culpa is not of this extreme degree, the question whether he is answerable for it is determined by reference to two standards or criteria of carefulness, the one abstract or absolute, the other relative or concrete.
(1) In some relations a man is required to show what the Romans call exacta diligentia, or the diligentia of a bonus paterfamilias, a careful, accurate, sound man of business; here he is answerable for all culpa, provided it could have been avoided by one more careful than himself: 'culpa autem abest si omnia facta sunt quae diligentissimus quisque observaturus fuisset' Dig. 19. 2. 257. Modern writers call this culpa levis in abstracto : in the authorities it is usually called culpa simply: when it is said that a man is answerable not only for dolus but for culpa as well, what is meant is that he is answerable for levis culpa : the liability for lata culpa, being universal, is implied. Instances in which this highest degree of diligence was demanded are those of the commodatarius, Bk. iii. 14. 2; the depositor, the pledgee in a pignus, ib. 4 ; the vendor, Dig. 18. 6. 3; the hirer (conductor), Dig. 19. 2. 57, and letter (locator), Cod. 4. 6. 28: the authorized agent (mandatarius), Cod. 4. 35. 13, and unauthorized agent (negotiorum gestor), Bk. iii. 27. 1.
(2) In other relations the law was satisfied with a less rigid standard: i.e. a man was required to be only as careful as he was in affairs which concerned no one but himself, or in which he himself would be the person primarily injured by carelessness: 'talem praestare diligentiam qualem in suis rebus adhibere solet ;' or, as modern writers say, he was held answerable only for culpa levis in concreto. This lower degree of carefulness only was demanded from the depositary (Dig. 16. 3. 32: the contradiction of Bk. iii. 14. 3 is only apparent): the lender (commodator), Dig. 47. 2. 63. 6; the tutor, Dig. 27. 3. I. pr. and curator ; partners (socii) inter se, Dig. 17. 2. 52. I: ib. 72; coheirs and colegatees, Dig. 10. 2: 25. 16, and the husband in respect of the dos, Dig. 23. 3. 17. If one may lay down a general rule, it would perhaps best be formulated thus : in contractual and quasicontractual relations the defendant is usually required to show exacta diligentia, but the burden of proving his negligence is on the plaintiff; in some of them, however, the defendant is excused if he can prove that he has shown such diligence and care as he usually displays in the conduct of his own affairs.
Mr. Postė, in his note on this subject (Gaius pp. 478-481), criticises as unnecessary and complicated the tripartite division into the diligence (a) of an ordinary man, (6) of a man in his own concerns, and (c) of the bonus paterfamilias, and adopts the two last criteria only. The result of this is a faulty determination of culpa lata, which he defines as 'the absence of the degree of diligence which a man habitually bestows on his own concerns;' that this is wrong is clear from the definition cited above from Dig. 50. 16. 213. 2. Hence too arises a practical difficulty: for if we suppose (e.g.) a partner to be less careful in suis rebus than an ordinary man, and yet to display in societatis rebus that care which he bestows on his own, how is he to be judged? He has been guilty of culpa lata according to the definition of the Digest, and yet on Mr. Poste's principle he is not answerable.
No test has yet been suggested for determining the degree of diligence required by law in a given relation which is not marred by perplexing exceptions. Perhaps the one which covers the greatest number of instances is that proposed by Mr. Poste, p. 479 : 'the principle appears to be that when a contract is for the interest of both parties, although their interests are rather adverse than identical, each is responsible for the least negligence:' 'in contractibus bonae fidei servatur, ut si quidem utriusque contrahentis commodum versetur, etiam culpa, si unius solius, dolus malus tantummodo praestetur' Dig. 30. 108. 12. Yet there are some cases (e.g. mandatum and negotiorum gestio) in which, though the relation is all for the interest of one party, exacta diligentia is required from the other; and others in which, though both parties are interested, they are yet expected to show only talem diligentiam qualem in suis rebus adhibere solent, e. g. partners, coheirs, and colegatees.
Accident, fortuitus casus (which is mentioned in Bk. iii. 14. 2 and elsewhere in the Institutes), and dolus form the two extremes of a chain of possible sets of circumstances, the responsibility for which may be exhibited thus. For accident, and for such unintentional faults and mistakes as could not have been guarded against by the utmost care, no one is answerable. Culpa levis entails liability on the classes of persons enumerated under (1) supr. : they are required to show exacta diligentia. The classes of persons enumerated under (2) are expected to display the lower degree of diligence: they are answerable for culpa legis in concreto. Culpa lata and dolus entail liability in every case,
The liability for culpa in delict is treated in Bk. iv. 13. 3, and notes.