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actione depositi, qua et ipse de ea re, subject to the actio depositi, by which quam accepit, restituenda tenetur. he is bound to give back the identical Sed is ex eo solo tenetur, si quid thing which he received. But he is dolo commiserit, culpæ autem no- only answerable if he is guilty of fraud, mine, id est desidiæ atque neglegen- and not for a mere fault, such as caretiæ, non tenetur: itaque securus lessness or negligence ; and he cannot, est, qui parum diligenter custoditam therefore, be called to account if the rem furto amisit, quia, qui negle- thing deposited, being carelessly kept, genti amico rem custodiendam tra- is stolen. For he who commits his didit, suæ facilitati id imputare property to the care of a negligent debet.

friend, should impute the loss to his

own want of caution. D. xliv. 7. 1. 5.

Here the benefit is entirely on the side of the person who commits the thing to the care of one who receives it gratuitously. The latter, therefore, unless he specially agrees to be answerable for the thing entrusted to him, or himself offers to take care of it (D. xiii. 65. 2), is not liable for its loss or deterioration, if he is not guilty of dishonesty, or of such gross neglect as amounts to dishonesty. He has, however, no right to make use of the thing (D. iv. 1. 6), and would be guilty of theft if he did (Bk. iv. 1. 6); and as it is deposited for the benefit of the person depositing it, that person can reclaim it when he pleases, and need not, like the commodans, wait for the expiration of the time agreed on.

The depositum gave rise to the actio depositi, which was directa or contraria, upon the same principle as the actio commodati. The depositary was entitled to be recompensed for every expense incurred, and to compensation for every loss occasioned by the fault of the deponens, however light that fault might be. If the depositary had voluntarily offered to receive the deposit, he too would be answerable for loss occasioned by a culpa levis, i.e. a slight fault, as opposed to culpa lata, gross negligence. If a deposit was rendered necessary by circumstances of unforeseen and sudden misfortune, as a shipwreck or fire, and if the depositary who had received the thing denied he had received it, double the value of the thing could be recovered. (See Bk. iv. Tit. 6. 23.)

4. Creditor quoque, qui pignus 4. A creditor also, who has received accepit, re obligatur, qui et ipse a pledge, is bound re, for he is obliged de ea ipsa re, quam accepit, resti- to restore the thing he has received, tuenda tenetur actione pigneraticia. by the actio pigneraticia. But, inasSed quia pignus utriusque gratia much as a pledge is given for the datur, et debitoris, quo magis ei benefit of both parties, of the debtor pecunia crederetur, et creditoris, that he may borrow more easily, and quo magis ei in tuto sit creditum, of the creditor that repayment may be placuit sufficere, quod ad eam rem better secured, it has been decided custodiendam, exactam diligentiam that it will suffice if the creditor emadhibere : quam si præstiterit et ploys his utmost diligence in keeping aliquo fortuito casu rem amiserit, the thing pledged ; but if, notwithsecurum esse nec impediri creditum standing this care, he has lost it by petere.

some accident, the creditor is not accountable for it, and he is not pro

hibited from suing for his debt. D. xliv. 7. 1. 6; D. xii. 7. 13. 1.

ment for redsidered inapphis mancipadne was the hype man

The oldest form of the contract of pledge was that of mancipatio, or absolute sale of the thing subject to a contract of fiducia or agreement for redemption. There were so many things to which mancipatio was considered inapplicable, that the more simple contract of pignus quite superseded this mancipatio contracta fiducia. A further simplification of the contract of pledge was the hypotheca, in which the thing pledged remained with the pledger. The mancipatio, it may be observed, transferred both the property and possession of the thing pledged; the pignus gave the possession to the creditor, but left the property in the thing with the debtor; the hypotheca left both the property and the possession with the debtor. (See note at end of Bk. ii. Tit. 5.) The right of the creditor over the thing pledged or hypothecated was protected by the actio quasi-Serviana (see Bk. iv. Tit. 6. 7), by which the creditor recovered the thing pledged if lost out of his possession, and got possession of the thing hypothecated.

The text seems to draw a distinction between the position of the creditor and that of the recipient of a commodatum, in regard to the degree of responsibility for negligence. But practically they were on the same footing. The creditor, like the receiver of a commodatum, could not make use of the thing placed in his possession ; and although he could without agreement take them as against the principal of his claim (C. iv. 24. 1), it was only by special agreement that the creditor could take the fruits of the thing pledged by way of interest.

Creditor and debtor are terms used more widely in Roman law than in our own. Every one who possessed a personal right against another was termed a creditor, and every one who owed the satisfaction of a claim, or was the subject of a personal right, was a debitor.

From the contractof pignus sprang the actio pigneraticia, which was directa when used by the debtor to constrain the creditor to give back the thing pledged if the debt had been paid, or to pay over the surplus if the thing pledged: had been sold, and produced more than was due for the debt, or to obtain compensation from him for any injury to the thing pledged, arising through his fault. The actio pigneraticia was contraria when used by the creditor to make the debtor reimburse him for all expenses incurred in keeping the thing safe, or compensate him for all injuries sustained by the thing pledged through the fault of the debtor (D. xiii. 7. 31); or, again, to compensate him if the thing pledged proved to be in reality not the property of the debtor, and was claimed by the real owner. Until it was claimed, the fact that it belonged to another did not prevent a thing being made the subject of a contract of pignus, and the creditor was as much bound to restore it to the debtor, if the sum due was paid, as if it had really been the debtor's property.


Verbis obligatio contrahitur ex An obligation by word of mouth is interrogatione et responsione, cum contracted by means of a question and quid dari fierive nobis stipulamur. an answer, when we stipulate that anyEx qua duæ proficiscuntur actiones, thing shall be given to or done for us. tam condictio, si certa sit stipulatio, It gives rise to two actions—the conquam ex stipulatu, si incerta. Quæ dictio, when the stipulation is certain, hoc nomine inde utitur, quia stipu- and the actio ex stipulatu, when it is lum apud veteres firmum appella- uncertain. The term stipulation is batur, forte a stipite descendens. derived from stipulum, a word em

ployed by the ancients to mean' firm, and coming perhaps from stipes, the

trunk of a tree. D. xliv. 7. 1. 7; D. xii. 1. 24.

The stipulatio was, properly speaking, not a contract, but a means of making a contract, a solemn form giving legal validity to an agreement. This form consisted of a question and answer, and it was the question only which was, properly speaking, the stipulatio, it being only by an extension of the term that the word was applied to the whole mode of contracting, and that the answerer as well as the questioner was said, as in paragr. l, to be one of the stipulantes. Like all the old forms of obligation, this formula only bound one party, viz., the maker of the promise. The promissor had himself to become the stipulator, and to receive in his turn a promise, if he wished to secure reciprocal rights. Obligations may be divided according as they are unilateral and bind one party only, or bilateral and bind both parties. A stipulation gave rise to a unilateral obligation.

Festus derives stipulatio from stips, coined money; and Isodorus from stipula, a straw. Veteres enim, quando sibi aliquid promittebant, stipulam texentes frangebant, quam iterum jungentes, sponsiones suas agnoscebant. (Orig. iv. 24. Quoted by Ortolan.) Stipes and stipulum are a more probable source of the derivation of the word.

When the stipulation was for something certain, as for a fixed sum of money, or for wine of a specified kind, it was enforced by the condictio certi ; when for something uncertain, as for wine of a good quality, for something to be done or left undone, by the condictio incerti. The term actio ex stipulatu is sometimes used to denote the condictio, whether certi or incerti; but it is more usually employed to denote the condictio incerti, as when the condictio was certi, that is, was employed in its proper form, it generally received no other name than condictio. The action arising on a stipulation of any kind was always stricti juris.

The stipulation was not the only contract made by going through a solemn form of words. By the dictio dotis the wife and her ascendants bound themselves to give the dos to the husband; and

by a promise accompanied by an oath (jurata promisso liberti) the freedman bound himself to render his services to his patron.

1. In hac re olim talia verba tra- 1. Formerly the words used in dita fuerunt : ‘Spondes? spondeo, making this kind of contract were as Promittis ? promitto, Fidepromit- follows-'Spondes? do you engage tis? fidepromitto, Fidejubes ? yourself ? Spondeo, I do engage myfidejubeo, Dabis? dabo, Facies ? self. Promittis ? do you promise ? faciam. Utrum autem Latina an Promitto, I do promise. Fidepromittis ? Græca vel qua alia lingua stipulatio do you promise on your good faith? concipiatur, nihil interest, scilicet si Fidepromitto, I do promise on my good uterque stipulantium intellectum faith. Fidejubes ? do you make yourhujus linguæ habeat: nec necesse self fidejussor? Fidejubeo, I do make est eadem lingua utrumque uti, sed myself fidejussor. Dabis ? will you sufficit congruenter ad interrogatum give? Dabo, I will give. Facies? will respondere : quin etiam duo Græci you do? Faciam, I will do.' And Latina lingua obligationem contra- it is immaterial whether the stipulahere possunt. Sed hæc sollemnia tion is in Latin or in Greek, or in any verba olim quidem in usu fuerunt; other language, so that the parties postea autem Leoniana constitutio understand it; nor is it necessary that lata est, quæ, sollemnitate verborum the same language should be used by sublata, sensum et consonantem in- each person, but it is sufficient if the tellectum ab utraque parte solum answer agrees with the question. So desiderat, licet quibuscumque verbis two Greeks may contract in Latin. expressus est.

Anciently indeed it was necessary to use the solemn words just mentioned, but the constitution of the Emperor Leo was afterwards enacted, which makes unnecessary this solemnity of expressions, and only requires the comprehension and agreement of understanding in each party, in what

ever words it may be expressed. Gai. ii. 92, 93; D. xlv. 1. 1. 6; C. viii. 37. 10.

Spondes ? spondeo was the form exclusively proper when both parties were Roman citizens ; adeo propria civium Romanorum est ut ne quidem in Græcum sermonem per interpretationem proprie transferri possit, quamvis dicatur a Græca voce figurata esse. (Gal. iii. 93.)

This constitution of Leo was published A.D. 469. (C. viii. 37. 10.)

2. Omnis stipulatio aut pure aut 2. Every stipulation is made simply, in diem aut sub condicione fit. or with the introduction of a partiPure veluti quinque aureos dare cular time, or conditionally. Simply, spondes?' Idque confestim peti po- as, 'Do you engage to give five aurei ?' test. In diem, cum adjecto die, quo in this case the money may be instantly pecunia solvatur, stipulatio fit: demanded. With the introduction of veluti 'decem aureos primis kalen- a particular time, as when a day is dis Martiis dare spondes ?' Id mentioned on which the money is to autem, quod in diem stipulamur, be paid, as, 'Do you engage to give statim quidem debetur, sed peti me ten aurei on the first of the calends prius quam dies veniat, non potest : of March ?' That which we stipulate ac ne eo quidem ipso die, in quem to give at a particular time becomes stipulatio facta est, peti potest, quia immediately due, but cannot be detotus ille dies arbitrio solventis manded before the day arrives, nor tribui debet. Neque enim certum can it even be demanded on that day, est, eo die, in quem promissum est, for the whole of the day is allowed to

datum non esse, priusquam is præ- the debtor for payment, as it is never tereat.

certain that payment has not been
made on the day appointed until that

day is at an end.
D. xlv. 1. 46 ; D. 1. 16. 213 ; D. xlv. 1. 18. 1.

In the technical language of the jurists, Ubi pure quis stipulatus fuerit, et cessit et venit dies; ubi in diem, cessit dies, sed nondum venit. (See note on Bk. ii. Tit. 20. 20.) If the stipulation was made pure, the interest in the thing stipulated for passed at once to the stipulator (cessit dies), and he could at once demand to have it (venit dies), giving, of course, sufficient time for the debtor to fulfil his obligation. If the stipulation was made in diem, the interest in the thing stipulated for passed at once to the stipulator, but he could not demand it until the dies was past.

There is a distinction in the respective effects of a stipulation in diem and of a conditional stipulation that deserves notice. When a stipulation was made in diem, the promise was binding at once, and the debt was already due, and therefore if any part of the debt was paid before the day named, it could not be recovered; whereas, when a stipulation was made with a condition, if anything was paid before the condition was accomplished, it could be recovered back, because, until the condition was fulfilled, the stipulator had no interest in the thing stipulated for (nondum cessit dies). (See paragr. 4.)

3. At si ita stipuleris decem 3. But, if you stipulate thus, 'Do aureos annuos, quoad vivam, dare you engage to give me ten aurei anspondes?' et pure facta obligatio nually, as long as I live?' the obligation intellegitur et perpetuatur, quia ad is understood to be made simply, and tempus deberi non potest. Sed is perpetual ; for a debt cannot be due heres petendo pacti exceptione for a time only ; but the heir, if he submovebitur.

demands payment, will be repelled by

the exceptio pacti. D. xlv. 1. 56. 4.

Lapse of time was not, in the Roman law, a mode by which a debt could be extinguished. Consequently, if it was owed, it was owed for ever; but this technicality was prevented from working any injustice by the plea referred to in the text, namely, that there was an agreement to the contrary, or by that of fraud. Plane post tempus stipulator vel pacti conventi, vel doli mali exceptione submoveri poterit. (D. xliv. 7. 44.) If, however, a similar gift had been given as a legacy, the right to receive would be extinguished ipso jure by the death of the legatee.

4. Sub condicione stipulatio fit, 4. A stipulation is made conditioncum in aliquem casum differtur obli- ally, when the obligation is postponed gatio, ut, si aliquid factum fuerit aut to the happening of some uncertain non fuerit, stipulatio committatur, event, so that it takes effect if such a veluti si Titius consul factus fuerit, thing happens or does not happen, as, quinque aureos dare spondes ?' Si for instance, 'Do you engage to give quis ita stipuletur 'si in Capitolium five aurei, if Titius is made consul ?' non ascendero, dare spondes ?' per. Such a stipulation as 'Do you engage

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