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BOOK III.

Pt. I. Ch. 11.

:

Marcian. Etiam ex lege Cornelia iniuriarum actio civiliter moveri potest condemnatione aestimatione iudicis facienda.-1. 37, § I eod.'

Hermog. De iniuria nunc extra ordinem ex causa et persona statui solet.-1. ult. eod.?

OBLIGATIONES EX VARIIS CAUSARUM FIGURIS.

$135. OBLIGATIONES QUASI EX CONTRACTU. 'Obligationes quasi ex contractu' are obligations similar in their subject-matter to contractual obligations, which arise from permissible one-sided acts. (legal transactions), the immediate primary object of which is not the creation of an obligation. To these belong the following, in themselves quite different

cases.

NEGOTIORUM GESTIO is the conduct of business for another (dominus) which is voluntary, i.e., undertaken without a commission, and gratuitous.

Ulp. Ait praetor: SI QVIS NEGOTIA ALTERIVS, SIVE QVIS NEGOTIA, QUAE CVIVSQUE CVM IS MORITVR FVERINT, GESSERIT, IVDICIVM EO NOMINE DABO.'Negotia' sic accipe: sive unum sive plura.—1. 3 pr., § 2, D. h. t. (de N. G. 3, 5).3

Id. Hoc edictum necessarium est, quoniam

desires to sue for injury because he alleges that he has been 'beaten, struck, or that his house has been entered by force.' ... It appears therefore that every injury occasioned by the hand is included in the 7. Cornelia.

1 A civil action for injuries can also be brought by virtue of the l. Cornelia, in which the condemnation has to be arrived at by the assessment of the iudex.

At present it is usual for a decision to be given concerning injury by extraordinary procedure, according to the case and the party.

3 The Praetor says: 'If a man shall have conducted affairs of another, or what shall have been the affairs of some one at the time of his death, I will give an action on that behalf.— 'Affairs' understand as one or several.

magna utilitas absentium versatur, ne indefensi
rerum possessionem aut venditionem patiantur
vel pignoris distractionem vel poenae commit-
tendae actionem, vel iniuria rem suam amittant.
--1. I eod.1

Gai. Si quis absentis negotia gesserit . .
sine mandatu, placuit quidem sane eos invicem
obligari, eoque nomine proditae sunt actiones,
quas appellamus negotiorum gestorum; quibus
invicem experiri possunt de eo, quod ex bona
fide alterum alteri praestare oportet.
Sed neque

ex contractu neque ex maleficio actiones nas-
cuntur; neque enim is qui gessit cum absente
creditur ante contraxisse, neque ullum maleficium
est sine mandatu suscipere negotiorum adminis-
trationem . . . sed utilitatis causa receptum est
invicem eos obligari.-D. 44, 7, 1. 5 pr.2

Ulp. Si quis negotia mea gessit non mei
contemplatione, sed sui lucri causa, Labeo scripsit
suum eum potius, quam meum negotium gessisse.

.. Sed nihilo minus, immo magis et is tenebitur negotiorum gestorum actione.-1. 5 (6), § 5 (3), D. h. t.3

1 This edict is necessary, because in it lies considerable advantage for absent persons, that they do not, without defence, suffer dispossession or sale of their property, or the sale of a pledge, or an action to attach a penalty, or by some wrong lose their property.

...

"If a person have conducted the affairs of one in his absence without a commission, it has as a matter of fact been held that they are certainly under mutual liability, and actions have been provided in that behalf, which we call actions appertaining to the transaction of business. By these they can mutually take proceedings concerning that which it behoves the one to render the other according to good faith. But it is neither from contract nor from tort that the actions arise; for it is not supposed that he who conducted the business previously contracted with the absent party, and it is no tort to undertake the management of affairs without a commission . . . but for convenience' sake it has been accepted that they are under mutual liability.

But also if a person has conducted my business not with

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BOOK III.

Pt. I. Ch. 11.

a § 115.

That the claims on both sides which arise herefrom may be made available, the actio negotiorum gestorum directa,' on the one hand, appertains to the dominus.

-is qui gesserit negotia. . . tenetur, ut administrationis rationem reddat: quo casu ad exactissimam quisque diligentiam compellitur rationem reddere, nec sufficit talem diligentiam adhibere, qualem suis rebus adhibere soleret.— § 1, I. h. t. (de obl. qu. ex. contr. 3, 27).1 The negotiorum gestor,' on the other hand, provided that he has managed the business' utiliter,' that is, in the well-understood interest of the principal and not against prohibition, possesses the actio negotiorum gestorum contraria,' which is intended for essentially the same object as the actio mandati.a

Gai. Si quis absentis negotia gesserit, licet ignorantis, tamen quidquid utiliter in rem eius impenderit, vel etiam ipse se in rem absentis alicui obligaverit, habet eo nomine actionem.— 1. 2, D. h. t.

Lab. Cum pecuniam eius nomine solveres, qui tibi nihil mandaverat, negotiorum gestorum actio tibi competit, cum ea solutione debitor a creditore liberatus sit nisi si quid debitoris

reference to me, but for his own gain, Labeo has written that he has conducted his own business rather than mine. . . . But none the less, nay rather, will he be liable by the action of business transacted.

1 -he that has conducted another's business . . . is liable to render an account of his management. In this case every one is made to render an account for the most perfect care, and it is not enough to use such care as a man would generally use over his own affairs.

2 If any one has managed a man's business in his absence, although without his knowledge, yet for whatever he has expended over such man's business to his advantage, or even the personal liability incurred to any one over the property of the absent party, he has an action in that behalf.

interfuit

(43) eod.'

eam pecuniam non

solvi.-1. 42

Ulp.: Is autem qui negotiorum gestorum agit, non solum si effectum habuit negotium quod gessit, actione ista utetur, sed sufficit si utiliter gessit, etsi effectum non habuit negotium; et ideo si insulam fulsit vel servum aegrum curavit, etiamsi insula exusta est vel servus obiit, aget negotiorum gestorum. . . . Ego quaero: quid si putavit se utiliter facere, sed patrifamilias non expediebat? dico hunc non habiturum negotiorum gestorum actionem: ut enim eventum non spectamus, debet utiliter esse coeptum.-1. 9 (10), I eod.

Mod. Titium, si pietatis respectu sororis aluit filiam, actionem hoc nomine contra eam non habere respondi.—l. 26 (27), § 1 eod.3

-Ipse tamen si circa res meas aliquid impenderit, non in id quod ei abest, quia improbe ad negotia mea accessit, sed in quod ego locupletior

BOOK III.

Pt. I. Ch. II.

1 Since you paid money in his name, who had given you no commission, the action for the management of business is open to you, because by that payment the debtor has been discharged by the creditor; unless it have been to the interest of the debtor that such money be not paid.

2 But he who brings the action of the management of business will not merely be able to employ that action, if the business which he has conducted has had result, but it is enough if he has conducted it with advantage, although the business has had no result; and therefore he may bring the action of the management of business if he propped up a house or cured a sick slave, although the house has been burnt or the slave has died. ... I ask: How if he thought he was doing it with advantage, but it was not serviceable to the pat. fam. ? Such a man, I maintain, will not have the action of the management of business; for, as we look not to the result, it must have been to advantage that it was begun.

3

I gave the opinion, that Tit., if he maintained his sister's daughter from affection, has no action against her on this account.

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• § 124.

ES 24, 198.

factus sum habet contra me actionem.—1. 5, § 5 eod.ai

Imp. Iust.: -sancimus, si contradixerit dominus et eum res suas administrare prohibuerit, ... nullam esse adversus eum contrariam actionem, . . . licet res bene ab eo gestae sint.— 1. ult. C. eod. 2, 19.2

The conduct of guardianship engenders obligations between guardian and ward.

From 'communio'-i.e., the community of property, in respect of things or real rights, whether contractual (cum societate), or casual (communio incidens)arises an obligation between the partners (socii), by virtue of which each can take proceedings upon dissolution of the partnership and separation. This action,d with which at the same time the personal claims on both sides created by the common interest (praestationes personales) are made available, is, in community of several objects of property, the actio cOMMVNI DIVIDVNDO; in the community of inherited property, which has arisen by succession, the actio FAMILIAE § 174, ad fin.; ERCISCVNDAE.'ƒ

D. 10, 2, 25, 16. Cf. 10, 3,

23.

cf. § 90, ad fin.

Paul. Communi dividundo iudicium ideo necessarium fuit, quod pro socio actio magis ad personales invicem praestationes pertinet, quam ad communium rerum divisionem. Denique cessat communi dividundo iudicium, si res communis non sit.-1. 1, D. h. t. (comm. div. 10, 3).3

1 But he himself, if he should have spent anything over my affairs, has the action against me, not for what he is out of pocket, because he went to work at my affairs dishonourably, but in so far as I have been enriched.

2 -we enact that, if the owner countermanded it, and forbade him to manage his affairs, . . . there is no contrary action against such person, . . although the business have been well managed by him.

The action for the partition of property owned in common is necessary, because the action upon the partnership contract

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