BOOK III. l't. I. Ch. II.

a But cf. Cic. p. Rosc. Am.

38, III.

accidisset, nihil ad eum pertinebit.—D. 18, 6, 12 (11).'

Gai.: culpa autem abest, si omnia facta sunt, quae diligentissimus quisque observaturus fuisset.-D. 19, 2, 25, 7.2

Id. In rebus commodatis talis diligentia praestanda est, qualem quisque diligentissimus paterfamilias suis rebus adhibet, ita ut tantum eos casus non praestet, quibus resisti non possit. -D. 13, 6, 18 pr.3

(2) But in certain obligatory relations, in the assumption of which special regard is had to the individuality of the other contracting party," or into which any one gets without his own concurrence, the standard may also be a concrete, relative, subjective one (culpa in concreto). As such appears 'diligentia qualem suis rebus adhibere solet (s. diligentia quam suis),' i.e., the care which the person concerned is wont to observe in his own affairs. By application of this concrete standard, the responsibility of the person may be curtailed, so that what would be culpa (levis) according to the abstract standard, here appears as conduct grounding no responsibility, and analogous to that of casus.' On the other hand, where in general responsibility is set up for culpa lata, the conduct of the debtor in his own affairs remains entirely without consideration, so that neither an otherwise culpa lata is here

1 If a house that has been purchased should be burnt down, when a fire could not happen without negligence, what is the law? He replies . . . if the vendor has applied to the safekeeping of the house such care as upright and careful men ought to exercise, he will not be answerable for any accident.

2 But culpa is absent if everything have been done which any thoroughly careful person would have attended to.

3 In respect of things lent, such care has to be shown as any thoroughly careful head of a family applies to his affairs, so that he is not answerable for such mistakes as it is impossible to obviate.

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Pt. I. Ch. II.

treated in the concrete as lata," nor could even the responsibility for lata culpa in the particular case be excluded by appeal to the 'nimia diligentia in This is the suis.'

non

a

opinion of the present writer, not according

entertained.

Paul. Non tantum dolum sed et culpam in with that re hereditaria praestare debet coheres; . . . generally tamen diligentiam praestare debet qualem dili- ¿ Cf. D. 23, 3, gens paterfamilias; . . . talem igitur diligentiam 17 pr.; 26, 7, praestare debet, qualem in suis rebus.-D. 10, 2, 25, 16.'

Gai. Socius socio etiam culpae nomine tenetur, id est desidiae atque negligentiae. Culpa autem non ad exactissimam diligentiam dirigenda est; sufficit etenim talem diligentiam communibus rebus adhibere, qualem suis rebus adhibere solet: quia qui parum diligentem sibi socium adquirit, de se queri debet.-D. 17, 2, 72. Cf. Inst. iii. 2, 5, 9.2

:

Cels. Quod Nerva diceret latiorem culpam dolum esse, Proculo displicebat, mihi verissimum videtur. Nam et si quis non ad eum modum, quem hominum natura desiderat, diligens est, nisi tamen ad suum modum curam in deposito praestat, fraude non caret: nec enim salva fide minorem is, quam suis rebus diligentiam praestabit.-D. 16, 3, 32.03

...

1 A co-heir has to answer not only for dolus, but also for culpa, in respect of matters affecting the inheritance; . . . but he is not responsible for such care as that of the solicitous head of a family; . . . he must therefore be responsible for such diligence as he observes in his own affairs.

2 One partner is liable to another for culpa also; that is, inattention and carelessness. But the culpa is not to be extended so as to mean the strictest carefulness; for it is enough that a partner use in partnership matters such care as he generally uses in his own affairs; because he that procures a partner not sufficiently careful has only himself to blame.

3 What N. said, as to the more gross negligence being bad intention, was disapproved by P., (but) to me seems to be very true. For even if a man has not been diligent to the degree required

33 pr.

e Cf. D. 44, 7, I, 5.

BOOK III.

l't. I. Ch. II.

a Afr. probably refers to a sentence of Julian.

Sc. creditoris.

e Bell, s. v.

English Law.

-Cf. Aust.

vol. i. pp. 490,

1 P. 233, 89.).

The degree of culpa to be made good depends upon the nature of the particular obligations. The following rule is not without exceptions.

Afric.

In contractibus fidei bonae servatur, ut si quidem utriusque contrahentis commodum versetur, etiam culpa: sin unius solius dolus malus tantummodo praesetur.-1. 108, § 12, D. de leg. i. 30.1

§ 109. MORA.

MORA is illegal, unjustified and inexcusable delay The laches' of in the performance of an obligation, which may occur as well on the part of the debtor (mora solvendisq. (Stud's ed. per debitorem stat, quominus solvat) as of the creditor (refusal of acceptance, mora accipiendi-per creditorem stat, quominus accipiat, si solvatur). 'Mora solvendi'-apart from actionability and maturity of performance-presupposes suitable reminder (interpela Cf. D. 45, 1, latio) of the debtor by the creditor;dmora accipiendi,' an appropriate offer (oblatio) of performance conformable to the obligation.

33.

Marcian. Mora fieri intelligitur non ex re sed ex persona, id est, si interpellatus opportuno loco non solverit.-1. 32 pr., D. de usur. 22, 1.2 Scaev. Nulla intelligitur mora ibi fieri, ubi nulla petitio est.-D. 50, 17, 88.3

by human nature, he is not innocent of fraud, unless at least he uses care in respect of the deposit up to his own standard; for without prejudice to good faith he will exhibit not less diligence than in his own affairs.

1 In respect of contracts of good faith it is maintained that, where the benefit of both contracting parties is in question, so is culpa likewise; but if the benefit appertain to one alone, compensation is only given for fraud.

2 Delay is regarded as arising not from the matter, but from the person, that is, if, upon being reminded at a seasonable place, he has not paid.

3 No delay is considered to arise, where there is no claim.

The effect

(1) of the mora in general is, responsibility to make full reparation for the injury (payment of the special value to the person).a

Ulp. Si fundum certa die praestari stipuler et per promissorem steterit, quominus ea die praestetur, consecuturum me quanti mea intersit, moram factam non esse.-1. 114, D. de V. O. 45, I.1

:

Marc. In bonae fidei contractibus ex mora usurae debentur.-1. 32, § 2, D. de usur.2

Cels. Si per emptorem steterit, quominus ei mancipium traderetur, pro cibariis per arbitrium indemnitatem posse servari Sextus Aelius, Drusus dixerunt.-D. 19, 1, 38, 1.3

Pomp. Si per venditorem vini mora fuerit, quominus traderet, condemnari eum oportet, utro tempore pluris vinum fuit, vel quo venit vel quo agatur.-1. 3, § 3 eod.

(2) Of the mora solvendi in particular: the perpetuation of the obligation, i.e., liability of the debtor for the casual destruction of the object of debt.

Paul, veteres constituerunt, quotiens culpa intervenit debitoris, perpetuari obligationem.— Effectus huius constitutionis ille est, ut adhuc homo peti possit, sed et acceptum ei posse ferri

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Pt. I. Ch. II.

a § 110.

1 If I stipulate for the conveyance to me of land on a certain day, and it shall be the fault of the promisor that it is not conveyed on such day, I shall obtain as much as the amount of my interest in the nonoccurrence of delay.

2 In contracts of good faith, interest is due upon the ground of delay.

If delay in the delivery of a slave has been owing to the purchaser, S. A. and Drus. have stated that an indemnity for his maintenance can be assured by an award.

If it have been through the seller of wine that the delivery thereof has been delayed, he must be condemned for it, at whichever time the wine was of the more value, whether when sold, or upon proceedings being taken.

BOOK III.

Pt. I. Ch. II.

a Cf. Paul. v. 7,

4.

creditur et fideiussorem accipi eius obligationis nomine.-1. 91, §§ 3, 6, D. de V. O.a1

Ulp. Si post moram promissoris homo decesserit, tenetur nihilominus proinde, ac si viveret.1. 82, § I eod.❜

(3) Of the mora accipiendi: release of the debtor by the casual destruction of the object of debt, if he hitherto had to bear the risk, and diminution of his liability for dolus and culpa lata.

Marc. Qui decem debet, si ea obtulerit creditori et ille sine iusta causa ea accipere recusavit, deinde debitor ea sine sua culpa perdiderit, doli mali exceptione potest se tueri : . . . etenim non est aequum teneri pecunia amissa, quia non teneretur, si creditor accipere voluisset. Quare pro soluto id, in quo creditor accipiendo moram fecit, oportet esse.-D. 46, 3, 72.3

The mora is cured (purgatur) by appropriate offer (oblatio) of the performance owing, or by declaration of readiness to accept it. (Posterior mora nocet.)

Celsus adulescens scribit eum, qui moram fecit in solvendo Sticho quem promiserat, posse emendare eam moram postea offerendo.—cit. 1. 91, § 3.*

1 The older jurists have ruled that, whenever negligence intervenes on the part of the debtor, the obligation is perpetuated. -The effect of this rule is such that the slave can still be claimed, but it is held that an acquittance can be given to such person, and a surety be accepted for this obligation.

2 Should the slave have died subsequent to the delay of the promisor, he is held liable no less than if such were alive.

3 If he that owes ten aurei shall have offered them to the creditor, and he without just cause has declined to accept, and then the debtor by no fault of his has lost them, be can protect himself by the plea of bad intention; for it is not fair that he should be liable after the loss of the money, inasmuch as he would not have been liable if the creditor had been willing to receive it. Therefore that must pass for paid in respect of the acceptance of which the creditor has caused delay.

Cels. the younger writes that a man who has caused delay