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on to their opponents. To prevent this the former could either bring condictio ob causam datorum, compelling the holders to prove the alleged consideration, or in default to deliver up the memoranda (Cod. 4. 30. 7), or protest in the acta of a court against their validity, or make their exceptio perpetual by serving a formal written notice on the creditor, Cod. ib. 14. 4.
Justinian, before whose legislation the exceptio pecuniae non numeratae could be used only where default had been made in the advance of money by the plaintiff, gave it a larger scope by allowing it also where the alleged consideration was the conveyance of other things : 'in contractibus, in quibus pecuniae vel aliae res numeratae vel datae esse conscribuntur, non intra quinquennium, quod antea constitutum erat, non numeratae pecuniae obicere possit, qui accepisse pecunias vel alias res scriptus sit, vel successor eius, sed intra solum biennium continuum ' Cod. 4. 30. 4. pr. Justinian's attempt to pass off the 'cautio' as a literal' contract, which is due merely to the habit of reproducing, if possible, the arrangement and terminology of Gaius, is forced and unhappy: the notion of an obligation arising simply literis does not appear elsewhere in the Corpus iuris, except so far as the use of scriptura and literae in Dig. 44. 7. 2. I; ib. 38, and 46. 2. 17 may be regarded as a reminiscence of the old expensilatio.
The question of contractual agency or representation is this: to what extent, if any, was it possible for B (not being a mere messenger or animated letter,' but a genuine agent, allowed more or less discretion) to make a contract with C for A, so that (assuming of course that B discloses the fact of his agency and his principal's name, and does not exceed his instructions)
A alone acquires rights against and can sue C?
B neither acquires rights nor incurs liabilities under the contract? The principle of the old civil law was that the only person who became entitled or bound under a contract was the person who made it, whether he acted for himself or as agent for some third party. The only exception of any importance arose from the proprietary incapacity of persons in potestas, manus, and mancipium : all benefit arising from contracts made by these vested in their domestic superior, because it could not vest in them ; so that if A wished to make a unilateral contract in which he should be creditor through an agent, he need only get a filiusfamilias (e. g.) of his own to stipulate ; whether he stipulated for himself or for his paterfamilias was immaterial. The operation of this, however, as a form of agency must have been slender, as the superior could not be bound by the inferior's promises, and therefore it was inapplicable to the dispositions of everyday life, such as sale and hire, all of which are bilateral.
How did the matter stand, if the agent employed was an extranea persona?' It has been pointed out, on Bk. iii. 19. 4, that (with a few exceptions) B could not make a contract with C for A and in A's name, so as to entitle the latter against C: and the case in which B is A's agent is not one of those exceptions. Consequently, if it is wished to create an obligation at all, it is essential that B should first make the contract suo nomine: to confer any right on A he must take further measures, shortly to be noticed. Against this view, however, Savigny (System iii. 95 sq.; Oblig. ii. 40 sq.), followed by Mr.
Poste on Gaius iii. 103 and 162, maintains that, with the exception of stipulation, the only formal contract surviving in Justinian's time, B could make any contract for A in the latter's name, so as to confer rights on him alone and enable him alone to sue. This is based on Dig. 41. 1. 53 ‘ea quae civiliter adquiruntur per eos qui in potestate nostra sunt adquirimus, veluti per stipulationem : quod naturaliter adquiritur, sicuti est possessio, per quemlibet volentibus nobis possidere adquirimus. But in this passage, as has been remarked by many writers, it is probable that its author, Modestinus, wrote mancipationem, not stipulationem, which the compilers of the Digest substituted for it as being the only old formal disposition surviving in their day; and it is clear, from its position in the Title 'De adquirendo rerum dominio,' that it does not relate to contracts at all, but only to the question whether anything more than possession in a res corporalis could be acquired per extraneam personam : see note on Bk. ii. 9. 5 supr. But after all, perhaps the best criticism of this theory of Savigny's is that of Mr. Hunter, that if the Roman law had really attained to a true conception of agency, the fact must have been patent in many texts; whereas in point of fact its author is unable to support it by any really pertinent textual authority, except the very doubtful passage last cited.
Consequently, the agent must make the contract in his own name : and the desired effect-the conferring of rights, and the imposition of duties, upon his principal—was first attained only after the introduction of the formulary procedure (Gaius iv. 86, 87) and in a very cumbrous and circuitous manner. If (e. g.) A, being at Rome, wished to buy a house belonging to C at Naples, he would give B (at Naples) a mandate to buy it for him. B does so, and then assigns his rights against C to A, i. e. makes him his procurator in rem suam (cf. p. 465 supr.); C's rights against B, e.g. his claim for the purchase money, can be made available against A only by a novatio: if this is not done, C, if necessary, must recover from B by actio venditi, and B from A by actio mandati contraria. Here none of the conditions above specified are realized. A, so far from alone acquiring rights against C under the contract, acquires them only indirectly as his own agent's assignee; C acquires rights against A, if at all, not by the contract of sale, but by the novation to which A is himself a party; and B is in fact the principal and true vendee throughout, and the only person who is entitled and bound in that capacity. In short, the desired effect is not attained simply by A's making B his agent, but by a double mandatum and a novatio: A makes B his agent for the proposed purchase from
C: B buys the house: B then assigns his rights against C to A (result, A alone is entitled against C); A and C then novate B's debt to C by A's promising by stipulation to pay it in lieu of B: (result, C is entitled against A alone).
After becoming B's assignee, the principal (A) at first sued only in B's name, but later he was allowed to sue suo nomine by actio utilis (Dig. 3. 3. 55; cf. p. 466 supr.), though his right of action arose only upon an actual cessio, which however, if necessary, he could extort from B by actio mandati : 'evictionis actio domino contra venditorem invito procuratore non datur, sed per actionem mandati ea cedere cogitur’ Dig. 41. 2. 49. 2. There is one passage which appears, in direct contradiction to this, to affirm that the principal could sue apart from any assignment; 'quod procurator ex re domini, mandato non refragante, stipulatur, invito procuratore dominus petere potest’ Dig. 3. 3. 68; but here most of the commentators are agreed that a 'non' has slipped out between petere and potest; and even without resorting to this textual emendation one may suppose the passage to mean 'whether the agent likes it or not the dominus can sue, because he can compel him to make an assignment of his rights of action.' Mainly upon the strength of this passage, however, Savigny (Oblig. i. 243 sq.; cf. Poste's Gaius, note on iii. 162) has built up a theory that wherever a cessio could be compelled, it was implied or feigned to have actually taken place : ergo the principal could always sue by actio utilis without the necessity for any actual assignment of the right of action : but this has very slender textual authority, and is denied by most of Savigny's most eminent successors. It would seem that the only cases in which an actio utilis was granted to the principal without actual cessio (and that only causa cognita, after an inquiry into the facts) are where the principal is a soldier, Dig. 12. 1. 26, or appoints the agent in the presence of the other party, Dig. 45. 1. 79, where the agent makes stipulations before the magistrate, Dig. 46. 5. 5, and finally where otherwise the principal would be seriously prejudiced, Dig. 14. 1. 1. 18.
As for the liabilities arising from the contract made by the agent with a third party, none of these directly affected the principal by the civil law at all. He was indirectly answerable for them, because after they had been satisfied by the agent the latter could sue him by actio mandati contraria for all expenses he had incurred: but if he came to stand in a direct obligatory relation with the third party, he did so only in virtue of an express contract between himself and the latter, operating a novation of the agent's debt, not under that which the agent had made on his behalf. How far this was altered by the praetor when the agent was his slave or filiusfamilias is explained more fully in Bk. iv. Tit. 7 inf. But where a shipowner (exercitor) appointed any one, whether in his power or not, as captain (magister) of his ship, the praetor made him directly liable in full, by actio exercitoria, upon all business contracts made by the magister as his agent, e.g. insurances, loans for repairs, etc., Bk. iv. 7. 2 inf. The same rule was applied by the praetor when one appointed another, whether in one's power or not, as one's institor, i.e. to manage a trade or business for one, e. g. as merchant, tailor, banker, etc.; the principal was made directly liable, by actio institoria, on all contracts entered into by the institor in the ordinary course of the business. And eventually, if the contract which the agent made for the principal did not fall within the scope of either of these two remedies, the latter was made directly liable in every case by the action called quasiinstitoria or institoria utilis, neither of which names, however, are classical. Finally, if the agent exceeded his commission, and the principal was benefited by the unauthorized contract, he was directly suable pro tanto by the praetorian action de in rem verso, Dig. 4. 3. 15 pr; 19. I. 13. 7; 26. 9. 3. All four actions belong to the class known as actiones adiectitiae qualitatis, because they were subsidiary or additional to the natural remedy against the true contracting party; for though by these changes the principal had been made directly liable, the agent had not therefore been exonerated; the third party, who contracted with him, had the option of suing whichever he pleased, the agent by direct action on the contract, or the principal by actio adiectitiae qualitatis, these two being in fact correi debendi; 'est autem nobis electio, utrum exercitorem an magistrum convenire velimus' Dig. 14. I. 1. 17, 'item si servus meus navem exercebit, et cum magistro eius contraxero, nihil obstabit quominus adversus magistrum experiar actione, quae mihi vel iure civili vel honorario competit: nam et cuivis alii non obstat hoc edictum, quominus cum magistro agere possit : hoc enim edicto non transfertur actio sed adicitur’ Dig. ib. 5. I: and it does not seem to be true, as some maintain, that the agent's liability ceases as soon as he is no longer agent, or is limited by the extent of the principal's assets.