legibus, velut furti lege XII tabularum, damni 1 Now noxal actions have been created either by leges or the Praetor's Edict: by leges, for instance, in respect of theft according to a law of the Twelve Tables, and of wrongful damage according to the l. Aquilia; by the Praetor's Edict, for example, in respect of insults and goods taken with violence. § All noxal actions follow the person, for if your son or slave has committed an offence, so long as he is in your power, an action lies against you; if he has come under the power of another, an action arises against that other; if he is once independent, a direct action lies against him and noxal surrender is at an end. On the other hand, the direct action also becomes noxal, for if the pat. fam. has BOOK III. Pt. I. Ch. II. BOOK III. Pt. I. Ch. 11. a See Bell, s. VV. If the delict have been committed with the knowledge and by the will (scientia) of the master or paterfam., the action lies against him with the omission of the noxae deditio. : Ulp. Si servus sciente domino occidit, in solidum dominum obligat, . . . si autem iusciente, noxalis est. Is qui non prohibuit, sive dominus manet sive desiit esse dominus, hac actione tenetur.-1. 2 pr., § 1, h. t.1 Id. Scientia . . . domini sic accipienda est, si, cum prohibere posset, non prohibuit.-1. 3 eod. § 114. EFFECT OF OBLIGATIONS WITH REGARD TO LEGAL ENFORCEMENT. NATURALIS OBLIGATIO," To the legal and complete efficacy of an obligation belongs its actionable character, ie., the power of the committed a wrong, and then have given himself to you in arrogation . . . the action becomes noxal against you. § But if a son has committed a wrongful act against his father, or a slave against his master, no action arises; for there can be no obligation at all between me and a person who is under my power; and therefore, although he may have passed under the power of a third party, or has become independent, no action can be brought against either the man himself or the person under whose power he now is. Hence arises the question, whether if another's slave or son has committed an injury against me, and he afterwards has become subject to my power, the right of action is gone, or is only in abeyance. The authorities of our school think it is gone, because matters have fallen into such a plight, that no action can arise, and therefore, although he should pass out of my power, I cannot sue. The authorities of the opposite school are of opinion that, as he is under my power, the action is in abeyance (since I cannot proceed against myself); but that it is revived when he passes out of my power. 1 If the slave with the privity of the master have committed a murder, he renders his master liable for the whole . . . but if without such privity, it is noxal. To this action he is liable who did not forbid the act, whether he remain master or have ceased to be master. : 2 By knowledge of the master we must understand if he did not forbid it when he could. creditor to give effect by actio to the claim which belongs to him." a BOOK III. Pt. I. Ch. II. § 119, ad init. • See Poste, (1) According as the protection afforded by Law D. 50, 16, 108. to the obligation is that derived from ius civile or from ius praetorium, we have the distinction of obligationes civiles' and 'praetoriae' (honorariae); on the other hand, to 'civiles' obligationes, as those rooted in the ius proprium civium Romanorum, are § 116: Gal. opposed the naturales' obligationes, as those obli- iii. 92-93; gations which are already grounded in the gentium, but recognised in the Roman Civil Law. Inst. iii. 13, § 1. Omnium autem obliga- Moral Obligationum summa divisio in duo genera deducitur, tions,' and s. vv. namque aut civiles sunt, aut praetoriae civiles D. 2, 14, 7. sunt, quae aut legibus constitutae aut certe iure civili comprobatae sunt; praetoriae sunt, quas praetor ex sua iurisdictione constituit, quae etiam honorariae vocantur.1 ius 'Gaius, p. 359; Brown, s. d Inst. i. 2, 2; (2) As a rule, however, the distinction between obligationes civiles and naturales relates to the efficacy of the obligations, so that civilis obligatio is every one that has to be made good by an actio, is actionable or perfect; whilst obligatio (tantum) naturalis is an imperfect obligation deprived of an actio, but otherwise in various ways juristically operative in contrast with obligations fully inoperative, whether ipso iure' or ope exceptionis.' § 128, ad init. Iul. Naturales obligationes non eo solo aestimantur, si actio aliqua earum nomine competit, verum etiam cum soluta pecunia repeti non potest: nam licet minus proprie debere dicantur naturales debitores, per abusionem intelligi 1 Now the chief division of all actions is reduced to two classes; for they are either Civil or Praetorian. Civil are such as either are founded upon statutes, or at least are recognised by the Civil Law. Praetorian are such as the Praetor has created by virtue of his jurisdiction; they are also called Magisterial. N N possunt debitores et, qui ab his pecuniam recipiunt, debitum sibi recepisse.-1. 16, § 4, D. de fidej. 46, 1.a1 Ulp. Creditores accipiendos esse constat eos, quibus debetur ex quacumque actione vel persecutione, vel iure civili sine ulla exceptionis perpetuae remotione vel honorario; . . . quodsi natura debeatur, non sunt loco creditorum.D. 50, 16, 10.2 The several cases of naturales obligationes are either (1) obligations originated in the ius gentium, but which have not acquired full recognition in the Roman Civil Law, and always arise just as unactionable obligations, e.g., obligations of slaves, obligations between the pat. fam, and the persona subiecta, which however (apart from a peculium allowed to the latter) have not effective expression until the extinction of the potestas; engagement by nudum pactum. Paul. Is natura debet, quem iure gentium dare oportet, cuius fidem secuti sumus.-D. 50, 17, 84, 1. Id. Naturaliter etiam servus obligatur: et ideo 1 Natural obligations are not judged of alone by the contingency of some action available by reason thereof, but even of the impossibility of recovering money paid; for although it is short of accuracy to say that there are debtors indebted by Natural Law, they can loosely be regarded as debtors, and those who receive money from such, as having received what was due to them. 2 It is well known that by 'creditors' are to be understood those to whom anything is owing upon whatever action or process, whether according to Civil Law without any rebutter by a perpetual plea, or by Praetorian Law; . . . but if it is owing naturally, they are not regarded as creditors. He is indebted by nature who has to give something according to the ius gentium, and upon whose integrity we have relied. si quis nomine eius solverit vel ipse manumissus Tryph. Si quod dominus servo debuit, manu- Afr. Si pater quod filio debuisset, eidem probatur. Imp. Sever. Quamvis usurae foenebris pecuniae citra vinculum stipulationis peti non possunt, tamen ex pacti conventione solutae neque ut indebitae repetuntur, neque in sortem accepto ferendae sunt.-C. 4, 32, 3.* (2) Or obligations which have been intrinsically originated in the ius civile also, but which have for some reason from the beginning been denied full operation, or their originally actionable character has been taken away by some succeeding circumstance only operative iure civili; e.g., loan contra SC. It is by Natural Law that a slave incurs liability; and therefore, if any one should make a payment in his name, or he himself when manumitted . . it cannot be recovered; and because of it a person accepted as surety for a slave is held liable, and liability will attach to a pledge given on his behalf. ... * If a master pay to his slave when manumitted what he has owed him, then, although he supposed he was liable to him by some action, yet he will be unable to recover, because he recognised its being a debt by Natural Law. 3 If a father shall have paid his son what he had owed him, he will not recover; for here also it is proved that the natural obligation remains. 4 Although no interest upon a loan can be recovered without an obligatory stipulation, yet if it have been paid in pursuance of a contractual agreement, neither does it admit of recovery as not owing, nor is it to be regarded as received in discharge for capital. BOOK III. Pt. I. Ch. II. |