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Vindicatio, Condictio. 255

rem nostram ab alio ita petere, si Paret Eum Dare Oportere: nec enim quod nostrum est, nobis dari potest, cum solum id dari nobis intelligatur quod ita datur, ut nostrum fiat; nec res quae est nostra, nostra amplius fieri potest. plane odio furum, quo magis pluribus actionibus teneantur, effectum est, ut extra poenam dupli aut quadrupli rei recipiendae nomine fures ex hac actione etiam teneantur, si Paret Eos Dare Oportere, quamvis sit etiam adversus eos haec actio qua rem nostram esse petimus. (5.) Appellantur autem in rem quidem actiones vindicationes; in personam vero actiones quibus dare fierive oportere intendimus, condictiones.

6. Agimus autem interdum, ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam. (7.) Rem tantum persequimur velut actionibus quibus ex contractu

we cannot sue another person for a thing that is ours in this form: "Should it appear that he ought to give it," for that cannot be given to us which is ours, inasmuch as that only can be looked upon as a gift to us, which is given for the express purpose of becoming ours; nor can a thing which is ours become ours more than it already is. But from a detestation of thieves, in order that they may be made liable to a greater number of actions, it has been settled that besides the penalty of double or quadruple the amount (of the thing stolen), thieves may, with the object of recovering the thing, also be made liable under the action running thus: "Should it appear that they ought to give the thing1;" although there also lies against them the form of action whereby we sue for a thing on the ground that it is our own*. 5. Now actions in rem are called vindications, whilst actions in personam, wherein we assert that our opponent ought to give us something, or that something ought to be done by him", are called condictions.

6. Sometimes the object of our action is to recover only the thing itself, sometimes only a penalty, sometimes both the thing and a penalty. 7. We sue for the thing only, as in actions

1 Sc. a condictio. the other hand, embraces every kind

* Sc. a vindicatio. of act, whether juridical or not, and

* Savigny says that Dare, in the hence comprises, amongst other strict terminology of the formulary things, dare, solvere, numerare, amsystem, means to transfer property bulare, reddere, non facere, curare ne tx jure Quiritium; whilst Facere, on fiat. Cf. D. 50. 16. 175, 189, n8.

2,^6 Actions for the thing or the penalty

agimus. (8.) Poenam tantum consequimur velut actione furti et iniuriarum, et secundum quorundam opinionem actione vi bonorum raptorum; nam ipsius rei et vindicatio et condictio nobis cowpetit. (9.) Rem vero et poenam persequimur velut ex his causis ex quibus adversus infitiantem in duplum agimus: quod accidit per actionem iudicat/, depensi, damni miuriae legis AquzTiai, et terum legatarum nomine quae per damnationem certae relictae sunt.

10. Quaedam praeterea sunt action es quae ad legis actionem exprimuntur, quaedam sua vi ac potestate constant. quod ut manifestum fiat, opus est ut prius de legis actionibus loquamur.

11. Actiones quas in usu veteres habuerunt legis actiones appellabantur, vel ideo quod legibus proditae erant, quippe tunc edicta Praetoris quibus cowplures actiones introductae

arising out of a contract. 8. We obtain a penalty only, as in the actionsfurn' and injuriarum ", and, according to the views of some lawyers, in the action vi bonorum raptorum", for to recover the thing itself there lies for us either a vindication or a condiction. 9. We sue for the thing and a penalty in those cases, for example, where we bring our action for double the amount against an opponent who denies (the fact we state): instances of which are to be found in the actions judicata, depensi*, damni injuriae under the Lex Aquilia", and for the recovery of legacies where certain specific things have been left (by the form)/ir damnationem1.

10. Moreover, there are some actions which are framed upon a legis actio, whilst others rest on their own special force8. In order to make this clear we must give some preliminary account of the legis actiones.

11. The actions which our ancestors were accustomed to use were called legis actiones9, either from the fact of their being declared by leges, for in those times the Praetor's edicts, Actio Sacramenti. 257

1 i11. 189. 6 i11. 216.

2 H1. 220. 7 и. 201—208, 282. 8 i11. 209. 8 iv. 32, 33.

4 iv. 21, 25. See for an instance "See the derivation given by

of this action Cic. pro Flacc. с Pomponius to the same effect, D. 1.

xx1. 2. 2. 6.

6 III 127.

sunt nondum in usu habebantur; vel ideo quia ipsarum legum verbis accommodatae erant, et ideo immutabiles proinde atque leges observaiantur. unde mm quii de viribus succisis ita egisset, ut in actione vites nominaret, responsum est eum rem per* didisse, quia debuisset arbores nominare, eo quod lex xn tabularum, ex qua de vitibus succisis actio cowpeteret, generaliter de arboribus succisis loqueretur. (12.) Lege autem age-: batur modis quinque: sacramento, per iudic/s postulationem, per condictionem, per manus iniectionem, per pignoris captionem.

13. Sacramenti actio generalis erat: de quibur enim rebus ut aliter ageretur lege cautum non erat, de his sacramento agebatur. eaqùe. actio perinde periculostf erat falsi nomine, atque hoc tempore periculosa est actio certae creditae pecuniae propter sponsionem qua periclitatur reus, si temere neget, et restipulationem qua periclitatur actor, si non debitum petat: nam

whereby very many actions have been introduced, were not in use; or from the fact that they were adapted to the words of the leges themselves, and so were adhered to as inflexibly as those leges were. Hence, when in an action for vines having been cut down, the plaintiff used the word vites in his plaint, it was held that he must lose the cause; because he ought to have used the word arbores, inasmuch as the law of the Twelve Tables, on which lay the action for vines cut down, spoke generally of trees (arbores) cut down1. 12. The legis act iones, then, were sued out in five ways: by saeramentum, by judiсis poslulatio, by condictio, by manus injectio, by pignoris captio.

13. The actio sacramenti was a general one, for in all cases where there was no provision made in any lex for proceeding in another way, the form was by saeramentum": and this action was then just as perilous in the case of fraud, as at the present day is the action "for a definite sum of money lent3," on account of the sponsion whereby the defendant is imperilled, if he oppose the plaintiff's claim without good

1 See D. 43. 27, where, however, the most ancient times the deposit

the old law is only referred to, not was actually staked in the hands of

quoted. the magistrate, and that the practice

s According to Vam (de Ling, of giving sureties instead was an in

Lat. v. § 180, p. 70, Miiller's edition) novation of a later age.

the name sacramentum was derived 3 An action, that is to say, under

from the place of deposit, a temple the Lex Silia. See note on iv. 1. (in sacro); for it would seem ¿at in

258 Poena Sacramenti.


qui victus erat summam sacramenti praestabat poenae nomine; eaque in pübñcum cedehat praedesque eo nomine Praetor/ dabantur, non ut nunc sponsionis et restipulationis poena Iu¿to cedit adversario qui vicerit. (14.) Poena autem sacramenti ant quingenaria erat aut quinquagenaria. nam de rebus mille aeris plurisve quingentis assibus, de minons vero quinquaginta assibus sacramento contendeba/w,- nam ita lege xn tabularum cautum erat. sed si de libertate hominis controversia erat, etsi pretiosissimus homo esset, tamen ut L assibus sacramento contendere/«^, eadem lege cautum est favoris causa, ne satisdatione o«trarentur adsertores. (15.) [Nunc admonendi sumus, istas omnes actiones certis quibusdam et solemnibus verbis

reason, and on account of the restipulation whereby the plaintiif is imperilled if the sum in dispute be not due; for he who had lost the suit was liable by way of penalty to the amount of the deposit, which went to the treasury, and for the securing of which sureties were given to the Praetor: the penalty not going at that time, as does the sponsional and restipulatory penalty now, into the pocket of the successful party. 14. Now the penal sum of the saeramentum was either one of five hundred or one of fifty (asses). For when the suit was for things of the value of a thousand asses or more, the deposit would be five hundred, but when it was for less, it would be fifty: for thus it was enacted by a law of the Twelve Tables1. If, however, the suit related to the liberty of a man, although a man is valuable beyond all things, yet it was enacted by the same law that the suit should be carried on with a deposit of fifty asses, with the view of favouring such suits", and in order to prevent the asserters of liberty3 being burdened with excessive security. 15.4 We must now be reminded that all these actions were of necessity carried on

1 Tab. II. 1. 1. 1. 40; Suet. Caes. 80.

2 For this phrase, favoris causa, 4 We have adopted in the openused in a similar sense, see D. 23. 3. ing of this paragraph, down to the 74, and D. 50. 4. 8. words "ad judicem accipiendum

3 Adsertores—ihefneiidsv/hocame venirent," the conjectural reading of forward on behalf of the man held Heffter. The reading may be right in servitude, who of course, from or not, (its sense is undoubtedly acthe disability of his status, could do cordant with what we know of the nothing for himself. Cf. Plaut. ancient law,) but at all events it renCurc. v. 1. 68. Terent. Adelph. 11. ders the passage more complete.

Preliminary proceedings before the Praetor. 259

peragi tlebuisse. Si verbi gratia in personam agebatur contra eum qui цехu se obligaverat, actor eum apud Praetorem ita interrogabat: Quando in iure te conspicio, postulo an fias auctor, qua de re nexum mecum fecistif Et altero negante, Ule dicebat: Quando negas, sacramento quingenario te provoco, si propter te fidemve tuam captus fraudatusve siem. Deinde adversarius quoque dicebat: Quando ais ñeque negas me nexum fecisse tecum, qua de re agitur, similiter ego te saeramento quingenario provoco, si propter me fidemve meam captus fraudatusve non sies. Quibus ab utraque parte peractis litigatores poscebant iudicem, et Praetor ipsis diem praestituebat, quo] ad iudicem accipiundum venirent . postea vero reversis dabatur e

in special and formal language. If, for instance, the action were one in personam against an individual who had bound himself by a legal obligation 1, the plaintiff used to interrogate him in the Praetor's presence in this form: "As I see you in court, I demand whether you give consent1 to (the settlement of) the matter in respect of which you have entered into an obligation with me?" Then on this person's refusal the plaintiff went on thus: "Since you say no, I challenge you in a deposit of five hundred (asses), if I have been deceived and defrauded through you and through trust in you." Then the opposite party also had his say, thus: "Since you assert and do not deny that I have entered into a legal engagement with you in relation to the subject-matter of this action, I too challenge you with a deposit of five hundred (asses), in case you have not been deceived or defrauded through me or through trust in me." At the close of these proceedings on either side, the parties demanded a judex, and the Praetor fixed a day for them to come and receive one. Afterwards, oa their reappearance in court, a judex was assigned from the number of the decemvirs on the thirtieth day3: and this was

1 See note on II. 27. to give some specific thing and all its

s That this was the form of the an- interest and profits. In the present case

cient action against an auctor who thedefendantwould btcomeauctorhy

was present in court is clear from admitting his liability, for this admis

Cicero pro Caecina, с io, pro Mu- sion would make him a reus from it

raena, с 12. tendi in a stipulatory engagement.

Auctor, in the language of the old 3 This is a difficult passage on ac

lawyers, was the individual who was count of the obliterated state of the

bound by any engagement, contracted MS. We have again adhered to

according to the forms of the civil Hefner's conjectural reading, viz. e

law, to perform some specific act or decemviris xxx (die).

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