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debt of another; satisdare for the giving surety for the obligation of the principal; satisaccipere for the receiving it.
Suretyship might be created, not only in the modes above mentioned, but by the surety offering himself as mandator pecuniæ credendæ, i.e. bidding the creditor to lend to the debtor, or by a pactum constituta pecuniæ, an undertaking to pay an ascertained debt, and in this case the debt of another person. (Bk. iv. 6. 9.)
The senatusconsultum Velleianum (D. xvi. 1. 2. 1), perhaps of the date of 46 A.D., forbade women ever to bind themselves for another person.
1. In omnibus autem obligationi- 1. Fidejussores may be added in bus adsumi possunt, id est sive re every kind of obligation, i.e. whether sive verbis sive litteris sive consensu the obligation is contracted by the contractæ fuerint. Ac ne illud qui- delivery of the thing, by words, by dem interest, utrum civilis an na- writing, or by the consent of the turalis sit obligatio, cui adjiciatur parties. Nor is it material whether fidejussor, adeo quidem, ut pro the obligation to which the fidejussor servo quoque obligetur, sive extra- is made an additional party is civil or neus sit, qui fidejussorem a servo natural ; so much so, that a man may accipiat, sive ipse dominus in id, bind himself as a fidejussor for a slave, quod sibi naturaliter debetur.
either to a stranger or to the master of the slave, in respect of a thing due by a natural obligation to the person ac
cepting the fidejussor from the slave. Gal. iii. 119 ; D. xlvi. 1. 8. 5.
In omnibus obligationibus, including obligations arising out of delicts. This was the principal advantage gained by the introduction of fidejussores.
2. Fidejussor non tantum ipse 2. A fidejussor not only binds him. obligatur, sed etiam heredem obli-· self, but leaves also his heir bound. gatum relinquit.
D. xlvi. 1. 4. 1.
This was the second chief point of difference between fidejus-, sores and sponsores, or fidepromissores. There was no limit to the time during which fidejussores remained bound, such as the lex Furia had laid down for the benefit of sponsores and fidepromissores.
3. Fidejussor et præcedere obli- 3. A fidejussor may be added either gationem et sequi potest.
before or after an obligation is entered
Probably the formality of verbal contracts exacted that the words of the principal should precede those of the accessory.
4. Si plures sint fidejussores, 4. Where there are several tide-, quotquot erunt numero, singuli in jussores, whatever is their number, solidum tenentur. Itaque liberum each is bound for the whole debt, and est creditori, a quo velit, solidum the creditor may demand the whole petere. Sed ex epistula divi Hadri- from any of them he pleases. But,
ani compellitur creditor a singulis, by a rescript of the Emperor Hadrian, qui modo solvendo sint litis con- the creditor is forced to divide his testatæ tempore, partes petere. demand between all those fulejussores Ideoque si quis ex fidejussoribus eo who are solvent at the time of the tempore solvendo non sit, hoc cete- litis contestatio, so that, if any of the ros onerat. Sed et si ab uno fide- fidejussores is not solvent at that time, jussore creditor totum consecutus the rest have so much additional burfuerit, hujus solius detrimentum den. But, if the creditor obtains his erit, si is, pro quo fidejussit, sol- whole demand from one of the fidevendo non sit : et sibi imputare de- jussores, the whole loss falls upon him bet, cum potuerit adjuvari ex epi- alone, if the principal debtor cannot stula divi Hadriani et desiderare, ut pay; for he has no one but himself to pro parte in se detur actio.
blame, as he might have availed him-
The provision of the lex Furia not applying to fidejussores, they were bound for all they had promised; and as each promised for himself alone, the one first sued had no remedy against the other fidejussores, until the rescript of Hadrian provided one, and gave him what was called the beneficium divisionis ; but under the lex Furia, the liability was divided among the different sureties ipso jure, whereas the surety first sued was obliged expressly to claim the benefit given by the rescript of Hadrian (beneficium divisionis).
There were two other privileges or beneficia of which the fidejussor might avail himself: one was that cedendarum actionum, by which, if the creditor, without suing the debtor, proceeded against the fidejussor, the surety, if prepared to pay the whole debt, could, before paying the creditor, compel him to make over to him the actions which belonged to the stipulator, and thus the fidejussor could sue those bound with him, or the principal debtor (D. xlvi. 1. 17), and this was often more advantageous to the fidejussor than having recourse to the rescript of Hadrian, because, if the creditor had taken pledges, they were transferred to the fidejussor, if the actions were ceded to him. If the creditor refused to cede the actions and still sued the surety, he could be repelled by an exceptio doli mali. (D. xlvi. 1. 59.)
There was also a beneficium ordinis, or, as it was otherwise termed, excussionis or discussionis, introduced by Justinian (Nov. 4. 1 ); by this a creditor was bound to sue the principal debtor first, and could only sue the sureties for that which he could not recover from the principal.
5. Fidejussores ita obligari non õ. Fidejussores cannot bind thempossunt, ut plus debeant, quam selves for more than the debtor is debet is, pro quo obligantur : nam bound for ; because their obligation eorum obligatio accessio est prin is accessory to the principal obligacipalis obligationis nec plus in ac- tion; and the accessory cannot concessione esse potest quam in prin- tain more than the principal. They cipali re. At ex diverso, ut minus may, however, bind themselves for debeant, obligari possunt. Itaque less. Therefore, if the principal debtor si reus decem aureos promiserit, promises ten aurei, the fidejussor may fidejussor in quinque recte obliga- be bound for five, but the fidejussor tur : contra vero non potest obligari. cannot be bound for ten when the Item si ille pure promiserit, fide- principal debtor is bound only for five. jussor sub condicione promittere Again, when the principal promises potest :contra vero non potest. Non unconditionally, the fidejussor may solum enim in quantitate, sed etiam promise conditionally, but the conin tempore minus et plus intellegi- verse case is not possible. For the tur. Plus est enim statim aliquid terms more and less are used not only dare, minus est post tempus dare. with respect to quantity, but also with
respect to time; it is more to give a thing instantly, it is less to give it
after a time.
GAI. iii, 113. 126. 6. Si quid autem fidejussor pro 6. If a fidejussor has made payment reo solverit, ejus reciperandi causa for the debtor, he may have an actio habet cum eo mandati judicium. mandati against him to recover what
he has paid. Gal. iii. 127.
If he had intervened without the knowledge of the principal, hel would have an actio negotiorum gestorum, not mandati (Tit. 27.1); and he would have no action at all if he had intervened in defiance of the wishes of the principal. (D. xvii. 1. 40.)
7. Græce fidejussor plerumque 7. A fidejussor may bind himself ita accipitur: tñ eun ziotel keletw, in Greek, by using the expression Aớy, déA0 sire Bo Àouat : sed et si an cu TicTet ke cuu (I order upon unui dixerit, pro eo erit, ac si dixerit my faith), déyw (I say), déw or Néyw.
Boídouai (I wish); if he uses the
The appropriate Latin formula was, “ Idem fide mea esse jubeo, but this formula was, probably, never insisted on, as the formulæ *spondeo' and “idem fide mea promitto' were.
8. In stipulationibus fidejusso- 8. It is a general rule in all stipurum sciendum est generaliter hoclations of fidejussores, that whatever accipi, ut, quodcumque scriptum sit is stated in writing to have been done, quasi actum, videatur etiam actum : is considered really to have been done. ideoque constat, si quis se scripserit If, therefore, any one states in writing fidejussisse, videri omnia sollem- that he has bound himself as a fideniter acta.
jussor, it is presumed that all the
necessary forms were observed. D. xlvi. 1. 30.
Cautio was the general term for the documentary evidence of a contract.
Tit. XXI. DE LITTERARUM OBLIGATIONE. Olim scriptura fiebat obligatio, Formerly there was made by writquæ nominibus fieri dicebatur : quæ ing a kind of obligation, which was nomina hodie non sunt in usu. said to be made nominibus (by booking Plane si quis debere se scripserit, debts). These nomina are now no quod numeratum ei non est, de longer in use. But if any one states pecunia minime numerata post mul- in writing that he owes a sum which tum temporis exceptionem opponere has never really been told out to him, non potest : hoc enim sæpissime he cannot, after a long time has elapsed, constitutum est. Sic fit, ut et hodie, use the exception non numeratæ pedum queri non potest, scriptura cuniæ, i.e. that the money has not obligetur: et ex ea nascitur con- been told out. This has been often dictio, cessante scilicet verborum decided by imperial constitutions; and obligatione. Multum autem tem- thus it may be said, even at the present pus in hac exceptione antea quidem day, as he cannot relieve himself from ex principalibus constitutionibus payment, he is bound by the writing, usque ad quinquennium procedebat: and that the writing gives rise to a sed ne creditores diutius possint condiction, in the absence, that is, of suis pecuniis forsitan defraudari, any verbal obligation. The length of per constitutionem nostram tempus time fixed as barring this exception, coartatum est, ut ultra biennii metas was, under imperial constitutions antehujusmodi exceptio minime exten- cedent to our time, not less than five datur.
years. But, that creditors might not
A contract was said to be formed literis when it originated in a certain entry or statement of it being made in the books of the creditor with the consent of the debtor. Regularity in keeping accounts, and in entering all matters of business in a private ledger, was considered one of the first duties of a Roman citizen. Cicero speaks of a failure in this duty as an almost insupposable act of negligence and dishonesty. (See pro Roscio, 3. 1 and 3.) Events, as they occurred, were jotted down in rough memorandums called adversaria, and these were transferred at least once a month to the ledger (codex or tabulce). It was only this ledger which had any legal importance. If any one put down in his ledger that he had advanced such a sum of money to another (expensum ferre), this entry (expensilatio) was an admissible proof of the fact. If the debtor also had made a corresponding entry in his ledger (acceptum referre), the tallying of the two together made what was called an obligatio literis. These two entries had, in fact, exactly the same effect as if the two parties had entered into a stipulation. But this was not all: the creditor was not to be placed entirely at the mercy of his debtor, whose wilful or accidental negligence, preventing a proper entry, might make the
a sumhe foundation beyond a doublly paid them with the dex way
obligation fail. The real source of the obligation was taken to be the consent of the debtor to the entry made by the creditor. If the debtor made a corresponding entry in his ledger, this was a conclusive proof that he had consented to the creditor's entry; but if he did not, then the creditor might still prove, in any way that he could, that he had really made his entry with the debtor's consent. Of course, if he had really paid the money over, this, if proved, would show beyond a doubt that the debtor had consented.
The foundation of this contract literis being the payment of a sum certain by the creditor, the obligation was always for a sum or certain thing, and was therefore enforced by condictio certi, more usually termed simply condictio.
As the creditor put down the name of his debtor, the word nomen’ came to signify a debt; and Gaius speaks of nomina transcripticia. He says transcriptio took place (1) a re in personam, as when something being already owed, as, for instance, under a contract of sale or of letting to hire, the debtor assented to the creditor making an entry of the debt (Gal. iii. 129): this operated as a novatio (see Introd. sec. 89) of the old debt, and the creditor could now employ a condictio to enforce his claim; (2) the transcriptio took place a persona in personam, viz. when one man took on himself the debt of another. (Gal. iii. 130.) In both cases the effect was that the debtor recognised that a fictitious loan had been made to him. He assented to its being recorded in the codex that he had received in account what he owed on the sale, or what the third person, whose debt he was taking over, had received.
These contracts were peculiar to Roman citizens. Peregrini had, as a substitute, syngrapha, signed by both parties, or chirographa, signed only by the debtor. These syngrapha and chirographa were not mere proofs of a contract, but were instruments on which an action could be brought, and the making of which operated as a novation of an existing debt.
In every period of the law, if there was a formal verbal contract, the written contract was thought subsidiary, and was merged in the stipulation : as the text says, nascitur condictio, cessante scilicet verborum obligatione.
A contract formed literis was treated by the civil law just as the stipulation was treated as furnishing conclusive evidence of the liability. Fairly or unfairly, the debtor must abide by this contract. The prætor, however, when the debtor had not really received the money, permitted him to repel the action of the creditor by an exception called the exceptio non numeratae pecuniæ,' by which the debtor insisted that the money which formed the consideration of the obligation had never been told or counted out to him ; and here, contrary to the usual rule as to exceptions, the burden of proof was considered to fall on the plaintiff, i.e. the creditor. It was for him to prove that he had paid the money, not for the debtor to prove that he had not.
that he hithe plaintifions, the