Page images
PDF
EPUB

succurri solitum erat. Sane si tam magna causa justi erroris interveniebat, ut etiam constantissimus quisque labi posset, etiam majori viginti quinque annis succurrebatur: veluti si quis totum legatum petierit, post deinde prolati fuerint codicilli, quibus aut pars legati adempta sit aut quibusdam aliis legata data sint, quæ efficiebant, ut plus petisse videretur petitor quam dodrantem, ad quem ideo lege Falcidia legata minuebantur. Plus autem quattuor modis petitur re, tempore, loco, causa. Re: veluti si quis pro decem aureis, qui ei debebantur, viginti petierit,aut si is, cujus ex parte res est, totam eam vel majore ex parte suam esse intenderit. Tempore: veluti si quis ante diem vel ante condicionem petierit. Qua ratione enim qui tardius solvit, quam solvere deberet, minus solvere intellegitur, eadem ratione, qui præmature petit, plus petere videtur. Loco plus petitur, veluti cum quis id, quod certo loco sibi stipulatus est, alio loco petit sine commemoratione illius loci, in quo sibi dari stipulatus fuerit: verbi gratia si is, qui ita stipulatus fuerit Ephesi dare spondes?' Romæ pure intendat dari sibi oportere. Ideo autem plus petere intellegitur, quia utilitatem, quam habuit promissor, si Ephesi solveret, adimit ei pura intentione: propter quam causam alio loco petenti arbitraria actio proponitur, in qua scilicet ratio habetur utilitatis, quæ promissori competitura fuisset, si illo loco solveret. Quæ utilitas plerumque in mercibus maxima invenitur, veluti vino, oleo, frumento, quæ per singulas regiones diversa habent pretia: sed et pecuniæ numeratæ non in omnibus regionibus sub iisdem usuris fenerantur. Si quis tamen Ephesi petat, id est eo loco petat, quo, ut sibi detur, stipulatus est, pura actione recte agit: idque etiam prætor monstrat, scilicet quia utilitas solvendi salva est promissori. Huic autem, qui loco plus petere intellegitur, proximus est is, qui causa plus petit ut ecce si quis ita a te stipulatus sit hominem Stichum aut decem aureos dare spondes?' deinde alterutrum petat, veluti hominem tantum aut decem aureos tantum. Ideo autem plus petere intellegitur, quia in eo genere

[ocr errors]

usual to aid the plaintiff if it appeared that he had made an error owing to his youth. If, however, the reasons which betrayed him into the mistake were such as might have misled the most careful man, relief was given even to persons of full age. For example, if a legatee had demanded his whole legacy, and codicils were afterwards produced by which a part of it was taken away, or new legacies given to other persons, so that the plaintiff appeared to have demanded more than the three-fourths to which the legacies were reduced by the lex Falcidia. A man may demand more than what is due to him in four ways-in respect to the thing, to the time, to the place, and to the circumstances. In respect to the thing, as when the plaintiff, instead of ten aurei, which are due to him, demands twenty: or if, although owner of but part of some particular thing, he claims the whole, or a greater share than he is entitled to. In respect to time, as when the plaintiff makes his demand before the day of payment, or before the time of the performance of a condition; for just as he who does not pay so soon as he ought is held to pay less than he ought, so whoever makes his demand prematurely, demands more than his due. In respect to place, as when any person sues in another place for something stipulated to be delivered at a particular place, without mentioning the place fixed by the stipulation; for example, if, having stipulated in these words, 'Do you promise to give at Ephesus?' any one should afterwards bring an action at Rome, merely stating that the defendant ought to give. In this case the plaintiff would demand more than his due, as he would, by his intentio thus conceived simply, deprive the promissor of the advantage he might have in paying at Ephesus. And it is thus that a plaintiff, suing in a place different from that agreed on, has provided for him an arbitrary action in which allowance is made for the advantage which the debtor might have reaped from paying his debt in the place agreed on. This advantage is generally found to be most considerable in different kinds of merchandise, as in wine, oil, corn, of which the price differs in different places. Money itself, again, is not lent everywhere at the same interest. But if a man brings

stipulationis promissoris est electio, utrum pecuniam an hominem solvere malit: qui igitur pecuniam tantum vel hominem tantum sibi dari oportere intendit, eripit electionem adversario et eo modo suam quidem meliorem condicionem facit, adversarii vero sui deteriorem. Qua de causa talis in ea re prodita est actio, ut quis intendat, hominem Stichum aut aureos decem sibi dari oportere, id est ut eodem modo peteret, quo stipulatus est. Præterea si quis generaliter hominem stipulatus sit et specialiter Stichum petat, aut generaliter vinum stipulatus, specialiter Campanum petat, aut generaliter purpuram stipulatus sit, deinde specialiter Tyriam petat: plus petere intellegitur, quia electionem adversario tollit, cui stipulationis jure liberum fuit aliud solvere, quam quod peteretur. Quin etiam licet vilissimum sit, quod quis petat, nihilo minus plus petere intellegitur, quia sæpe accidit, ut promissori facilius sit illud solvere, quod majoris pretii est. Sed hæc quidem antea in usu fuerant. Postea autem lex Zenoniana et nostra rem coartavit, et si quidem tempore plus fuerit petitum, quid statui oportet, Zenonis divæ memoriæ loquitur constitutio sin autem quantitate vel alio modo plus fuerit petitum, omne, si quid forte damnum ut in sportulis ex hac causa acciderit ei, contra quem plus petitum fuerit, commissa tripli condemnatione, sicut supra diximus, puniatur.

his action at Ephesus, that is, at the place fixed by the stipulation, he may validly bring an action without mention of the place agreed on for payment; and this the prætor, too, points out, because all the advantage the debtor will have in paying at the particular place is secured to him. In respect to the circumstances, he who demands more than due in this way approaches very nearly to him who demands more than due in respect of place; as, for instance, if any one stipulates thus with you, 'Do you promise to give either your slave Stichus or ten aurei?' and then demands either the slave only, or the money only. He would in this case be held to have demanded more than his due, because in such a stipulation the promissor has the right to choose whether he will give the slave or the money. He, therefore, who claims either the money only, or the slave only, takes away his adversary's power of choice, and thus makes his own condition better, and that of his adversary worse; and accordingly an action has been provided by which in such a case the plaintiff maintains that either the slave Stichus ought to be given him, or the money, and thus makes a demand in conformity with the stipulation. So, too, if a man stipulates generally that a slave, or wine, or purple be given him, and afterwards sues for the slave Stichus, the wine of Campania, the purple of Tyre, he is held to demand more than his due, for he thus takes the power of election from his adversary, to whom it was open by the terms of the stipulation to pay something different from what is demanded. Nay, even if the thing actually sued for is of little or no value, yet the plaintiff is held to claim more than his due, because it is often easier for the debtor to pay a thing of greater value. Such was the law formerly in use. But considerable limitations have been imposed on its operation by the constitution of the Emperor Zeno, and by our own. If more than is due is demanded in respect of time, the constitution of Zeno of glorious memory decides what must be done; if in respect of quantity, or in any other way, then the plaintiff is to be punished by having to pay a sum triple the amount of any loss sustained by the

GG 2

defendant, as he has with regard to court fees, as we have said above.

GAI. iv. 53; D. iv. 4. 1. 1; D. iv. 4. 7. 4; D. iv. 6. 1. 1; D. xiii. 4 and foll.; C. iii. 10. 1, 2.

Under the system of formula, a plus-petitio or pluris-petitio had the effect of making the plaintiff fail entirely in an actio stricti juris, when the error was in the intentio, and the intentio was for a thing certain. Supposing this were the case, as the formula would run si paret decem nummos, &c., condemna, si non absolve, then, if the defendant owed only nine nummi, he did not owe ten, and so the judex could not condemn him. The plaintiff failed, and having once come in judicio, the litis contestatio operated as a novation of the cause of action (see Bk. iii. Tit. 29), and, his original claim being thus cut away, he was left entirely without remedy, and could take no further proceedings to enforce his demand.

Of course, if the demand was for a thing uncertain, there could be no plus-petitio. If there was an error in the demonstratio, the plaintiff was not at all prejudiced. If there was a mistake in the condemnatio, making it more unfavourable to the defendant than it ought to have been, it was the defendant who would be prejudiced; but the prætor would grant a new formula, and so rectify the mistake. (See GAI. iv. 53–60, reading in 57, sed (reus cum) iniquam formulam acceperit.)

Under the system of the judicia extraordinaria a plus-petitio would mean any claim in excess contained in the libellus conventionis. The text informs us of the mode in which such a mistake or misstatement was punished when the plus-petitio was not one tempore. If the plus-petitio was tempore, i.e. if the plaintiff sued before the proper time, he was condemned by the constitution of Zeno (C. iii. 10. 1) to wait double the time he ought originally to have waited, and to reimburse the defendant all expenses he might have been put to by the action improperly brought.

Sicut supra diximus refers to the case of the damnum being the exaction of a larger fee by the officers of the court, as mentioned in paragr. 24.

34. Si minus in intentione complexus fuerit actor, quam ad eum pertineret, veluti si, cum ei decem deberentur, quinque sibi dari oportere intenderit, aut cum totus fundus ejus esset, partem dimidiam suam esse petierit, sine periculo agit: in reliquum enim nihilo minus judex adversarium in eodem judicio condemnat ex constitutione divæ memoria Zenonis.

34. If a plaintiff includes less in his intentio than he has a claim to, demanding, for instance, only five aurei when ten are due, or the half of an estate when the whole belongs to him, he runs no risk, for the judge may, by the constitution of Zeno of glorious memory, condemn in the same action the defendant to pay the remainder of what is due to the plaintiff.

GAI. iv. 56; C. iii. 10. 1. 3.

Under the prætorian system, a plaintiff who claimed a less amount than was really due to him, could bring another action

for the surplus if he waited until another prætor came into office. (GAI. iv. 56.) Zeno allowed the judex to add the surplus in condemning the defendant.

35. Si quis aliud pro alio intenderit, nihil eum periclitari placet, sed in eodem judicio cognita veritate errorem suum corrigere ei permittimus, veluti si is, qui hominem Stichum petere deberet, Erotem petierit, aut si quis ex testamento sibi dari oportere intenderit, quod ex stipulatu debetur.

35. When a plaintiff demands one thing instead of another, he incurs no risk. For if he discovers the truth, he is allowed to correct his mistake in the same action; as if he should demand the slave Eros instead of Stichus, or should claim as due by virtue of a testament what is really due upon a stipulation.

GAI. iii. 55.

In the time of Gaius, a plaintiff who demanded one thing instead of another, lost the action, but could recover the thing really due in a subsequent action. Justinian permitted the mistake to be retrieved in the same action, as the text informs us.

36. Sunt præterea quædam actiones, quibus non solidum, quod debetur nobis, persequimur, sed modo solidum consequimur, modo minus. Ut ecce si in peculium filii servive agamus: nam si non minus in peculio sit, quam persequimur, in solidum pater dominusve condemnatur si vero minus inveniatur, eatenus condemnat judex, quatenus in peculio sit. Quemadmodum autem peculium intellegi debeat, suo ordine proponemus.

36. There are, again, certain actions by which we do not always sue for the whole of what is due to us, but sometimes for the whole, sometimes for less. For example, when a suit is brought so as to form a claim against the peculium of a son or a slave, then if the peculium is sufficient to answer the demand, the father or master is condemned to pay the whole debt; but if the peculium is not sufficient, he is condemned to pay only to the extent of the peculium. We will hereafter explain, in its proper place, how the peculium is to be estimated.

C. iv. 26. 12.

We here enter on another division of actions, according to which actions, by which the whole of what was due was obtained, are distinguished from those by which sometimes the whole, sometimes less than the whole, of what was due was obtained.

37. Item si de dote judicio mulier agat, placet, eatenus maritum condemnari debere, quatenus facere possit, id est quatenus facultates ejus patiuntur. Itaque si dotis quantitati concurrant facultates ejus, in solidum damnatur: si minus, in tantum, quantum facere potest. Propter retentionem quoque dotis repetitio minuitur: nam ob impensas in res dotales factas marito retentio concessa est, quia ipso jure necessariis sumptibus dos minuitur, sicut ex latioribus digestorum libris cognoscere licet.

37. Thus, too, if a wife brings an action for the restitution of her dos, the husband must be condemned to pay only as far as he is able, i.e. as far as his means permit. Therefore, if his means admit of his paying the whole amount of the dos, he is condemned to pay the whole; if not, he must pay as much as it is in his power to pay. The claim of a wife for the restitution of her dos may also be lessened by the husband having a right to retain something, for the husband is permitted to retain a sum equivalent to the expenses he has incurred about the things given, since the marriage portion

is by law diminished by the amount of all necessary expenses, as may be seen in fuller detail in the Digest.

D. xxiv. 3. 12. 14; D. xxv. 1. 5.

The privilege of having the condemnatio reduced, duntaxat in id quatenus facere potest, i.e. of being condemned only in an amount which he could pay without being reduced to a state of destitution (D. L. 17. 173), a privilege called by the commentators the beneficium competentiae, was accorded to the defendant in several other cases besides those mentioned in the text and in the next paragraph and in paragr. 40. We may instance the case of one brother sued by another, and every case arising between man and wife, except claims grounded on delicts. (D. lii. 1. 20.) This privilege was always personal, and did not avail either heirs or sureties.

If the debtor subsequently had funds, he had to pay what under the beneficium competentiae he left unpaid. (C. v. 18. 8.) In calculating how much the debtor could pay, account was only taken of what he possessed, without deduction for what he owed, except in the one case of the donor, who might deduct his debts. (D. xlii. 1. 19. pr. 1.)

Propter retentionem dotis. The husband might deduct the amount of all necessary expenses incurred in the management of the property constituting the marriage portion. If the expenses had been only profitably and not necessarily incurred, that is, were utiles, and not necessaria, Justinian only allowed the husband to bring an actio mandati, or an actio negotiorum gestorum, to reimburse himself; whereas, previously, he had been able to deduct such expenses as well as those that were necessariæ. (D. L. 16. 79. 1; C. v. 13. 1.)

38. Sed et si quis cum parente suo patronove agat, item si socius cum socio judicio societatis agat, non plus actor consequitur, quam adversarius ejus facere potest. Idem est, si quis ex donatione sua conveniatur.

38. If any person sues his ascendant or patron, or one partner sues another in an action of partnership, he cannot obtain a greater sum than his adversary is able to pay. It is the same when a donor is sued for his gift.

D. xlii. 1. 16. 19. pr. and 1.

39. Compensationes quoque oppositæ plerumque efficiunt, ut minus quisque consequatur, quam ei debeatur: namque ex bono et æquo, habita ratione ejus, quod invicem actorem ex eadem causa præstare oporteret, in reliquum eum, cum quo actum est, condemnare licet, sicut jam dictum est.

39. Sets-off too, opposed by one party to the claims of the other, often bring about the result that the plaintiff recovers less than is due to him; for the judge, proceeding on equitable principles, may take account of whatever the plaintiff ought to make good in reference to the same set of circumstances, and may condemn the defendant to pay the balance only, as has already been observed.

GAI. iv. 61.

« PreviousContinue »