as, in a contract of deposit, the depositary is only liable for crassa negligentia, and it must be proved that he has not used the quanta in suis rebus diligentia. 2. When both parties to the contract have a common interest in the thing as to which the question of diligence or negligence arises, as partners, the husband in the management of the dotal estate, where he is a sort of partner (D. xxiii. 3. 17), co-heirs and co-legatees (D. x. 2. 25. 16). 3. Involuntary parties to a quasi contract, like tutors and curators (D.xxvii. 3. 1. pr.). 6. Interest, mora.--When a person bound by a contract delayed to execute it, and this delay (mora) was of such a kind that culpa could be imputed to him, he was subjected to something more than the necessity of fulfilling the contract, and especially he was in most cases liable to pay interest (usura). (D. xxii. 1. 7.) But interest was not ordinarily payable on debts except by express agreement, and there was a legal maximum of 12 per cent. or 1 per month, centesima usura, reduced by Justinian to 6 per cent. in most cases. (C. iv. 32. 26.) 7. Actions. The subject of actions is treated of fully in the sixth and following Titles of the Fourth Book, and it is only necessary here to notice generally that part of the subject which has to do with the enforcement of obligations, and especially of contracts. As an obligation was constituted a legal tie by having an action attached to it, it is necessary to know by what kind of action different obligations were enforced, and in almost every case the Institutes couple the mention of the kind of action attached with the mention of each kind of obligation. The main distinction to be now referred to is that between condictions and bonæ fidei actions, corresponding with the distinction noticed in Tit. 13. 1 between civil and prætorian obligations. The older actions of law (see Introd. sec. 94) afforded a very cumbrous machinery for the enforcement of rights against particular persons; and the lex Silia (510 A.U.c.) introduced a new kind of action, termed condictio, for the enforcement of obligations binding a person to give the absolute ownership (dare) of a certain sum of money (pecunia certa); and the lex Calpurnia (520 s.u.c.) extended its application to a similar demand of any certain thing, as a definite quantity of oil or wheat. (GAI. iv. 19.) In process of time the condictio was made to embrace uncertain as well as certain things, and was applied to obligations binding a person facere, and hence Gaius says, appellantur in personam actiones, quibus dari fierive intendimus, condictiones (iv. 5). The condictio certi, i.e. the condictio in its older and stricter form, came thus to be opposed to the condictio incerti. We may therefore say that contracts dare or facere were enforced by a condictio, and that this condictio was certi or incerti according as a definite or indefinite thing was demanded. Whenever the contract was to do a thing, it was always uncertain, because the law could not compel the person bound by the contract to do the thing, but only to give a pecuniary equivalent; and what sum of money was a reasonable compensation for the loss sustained by the thing not being done was left to be settled by the judge. The formula of the condictio certi ran si paret eum [decem aureos] dare oportere. (See paragr. 1 of next Title.) That of the condictio incerti ran quicquid paret eum dare faceré oportere. The condictio incerti, besides its general name, received also a special name derived from the kind of contract it was brought to enforce, or from the subject matter of the contract itself. For instance, the action brought to enforce a stipulation for an uncertain sum was termed an actio ex stipulatu. When the condictio was certi, it was generally spoken of simply as condictio. Sometimes, however, though more rarely, it too received a special name, as the condictio certi brought to enforce a mutuum, sometimes termed the actio mutui. There was another class of actions in which a wide discretion was given to the judge, who was to take all the circumstances of the case into his consideration, and pronounce the sentence which equity demanded, thus acting as an arbiter rather than as a judex. Such actions were termed bona fidei actiones, and the obligations, to enforce which they were given, were termed bona fidei obligationes. The right to have this equitable consideration of the whole case was inherent in the nature of the obligation, i.e. the action brought to enforce any of the bona fidei obligationes was always bona fidei. All actions instituted by the prætorian law were of this description. There was thus an opposition made between condictiones which were stricti juris, derived from the civil law, and in which the judge was confined within the limits of the formula, and these bona fidei actiones. Among the bona fidei actiones we shall find several mentioned in the following Titles of this Book, as, for instance, the action ex empto, ex vendito, ex locato, ex conducto, mandati, depositi, pro socio, &c. (See Bk. iv. Tit. 6. 38.) The bona fidei action given by the prætor to enforce innominate contracts was almost always one specially adapted to meet the facts of the particular case, and it received the name of the actio in factum præscriptis verbis. The formula was drawn up to meet the facts of the particular case (in factum), and this was done by placing in the demonstratio a short statement of these facts (præscriptis verbis). (See Introd. sec. 106.) TIT. XIV. QUIBUS MODIS RE CONTRAHITUR Re contrahitur obligatio veluti mutui datione. Mutui autem obligatio in his rebus consistit, quæ pondere, numero mensurave constant, veluti vino, oleo, frumento, pecunia numerata, ære, argento, auro, quas res aut numerando aut metiendo aut adpendendo in hoc damus, ut accipientium fiant et An obligation is contracted by the thing, as, for example, by giving a mutuum. This always consists of things which may be weighed, numbered, or measured, as wine, oil, corn, coin, brass, silver, or gold. In giving these things by number, measure, or weight, we so give them that they may become the property of those who re quandoque nobis non eædem res, ceive them. And identical things lent are not returned, but only others of the same nature and quality; and hence the term mutuum, because what I give, from being mine, becomes yours. From this contract arises the action termed condictio. GAI. iii. 90; D. xii. 1. 9. pr. and 3. Obligations were said to be contracted re when the actual receipt of a thing under certain conditions imposed the necessity of fulfilling those conditions. Four kinds of contracts came under this head, all of which are noticed in this Title, viz. those named mutuum, commodatum, depositum, and pignus. By the contract of mutuum the property in the thing delivered passed to the receiver; by that of pignus the recipient acquired possession; in contracts of commodatum and depositum the recipient was only in possessione. (See Bk. ii. Tit. 6.) The contract of mutuum was a contract of loan, where not the thing lent, but an equivalent, was to be returned. The obligation to return this equivalent arose on and by the delivery of the thing lent. It is scarcely necessary to say that the derivation from ex meo tuum is quite erroneous. Things which were of such a nature that they could be replaced by equal quantities and qualities are termed, in barbarous Latin, fungibiles, because mutua vice funguntur (D. xii. 1. 6), they replace and represent each other: thus a bushel of wheat is said to be a res fungibilis, a particular picture is not. The distinction is much better expressed by saying that the classes of things which can represent each other are considered in genere, those which cannot are considered in specie. (See Introd. sec. 55.) If the person who lends the bushel of wheat receives in return a bushel of equally good wheat, consisting of grains totally different from those he lent, it is the same to him as if the identical grains were restored; the wheat may be considered in genere; not so with the picture, which can only be considered in specie. But it is to be observed that it is the intention of the parties, not the nature of the thing, that makes the thing considered in genere rather than in specie. A person might lend a picture, and only require that a picture of some sort, whether the same picture or another, should be given in return to him, in which case the picture would be considered in genere; or a person might require the identical grains of wheat to be returned, and then the wheat would be considered in specie. A thing lent in a mutuum was always considered in genere, so that whenever it was the intention of the parties that the loan should be a mutuum, it was also their intention that the thing lent should be considered in genere. It was by the contract of mutuum that money was generally lent, and so we are told in Bk. iv. Tit. 7. 7, that persons who lent money (mutuas pecunias) to filiifamiliarum were deprived by the S. C. Macedonianum of all power to recover the debt. The action for recovering the equivalent would be a condictio certi, as the equivalent was necessarily something fixed and determined on. In this case the condictio received the name of condictio ex mutuo, or sometimes actio mutui, but as it was always certi, it very seldom was termed anything but condictio, and perhaps the term actio mutui (C. vii. 35. 5) would not have been used in the time of strict legal language. 1. Is quoque, qui non debitum accepit ab eo, qui per errorem solvit, re obligatur daturque agenti contra eum propter repetitionem condicticia actio; nam proinde ei condici potest si paret eum dare oportere,' ac si mutuum accepisset. Unde pupillus, si ei sine tutoris auctoritate non debitum per errorem datum est, non tenetur indebiti condictione, non magis quam mutui datione. Sed hæc species obligationis non videtur ex contractu consistere, cum is, qui solvendi animo dat, magis distrahere voluit negotium quam contrahere. 1. A person, also, who receives a payment which is not due to him, and which is made by mistake, is bound re, i.e. by the thing; and the plaintiff may have against him an actio condictitia to recover what he has paid. For the condictio Si paret eum dare oportere,' may be brought against him, exactly as if he had received a mutuum. Thus a pupil, to whom a payment has been made by mistake without the authorisation of his tutor, is not subject to a condictio indebiti, any more than he would be by the gift of a mutuum. This species of obligation, however, does not seem to arise from a contract, since he, who gives in order to acquit himself of something due from him, intends rather to dissolve than to make a contract. GAI. iii. 91. In this case it is the law that imposes certain conditions, and not the intention of the parties, and therefore the obligation arises quasi ex contractu, under which head it is, indeed, subsequently placed. (Tit. 27. 6.) A pupil could not be bound without the consent of his tutor. If, therefore, without the consent of his tutor, a loan was made him, he was not bound' to repay it, or if money not due to him was paid him, he was not bound to refund it. (See Bk. i. Tit. 21. pr.) 2. Item is, cui res aliqua utenda datur, id est commodatur, re obligatur et tenetur commodati actione. Sed is ab eo, qui mutuum accepit, longe distat namque non ita res datur, ut ejus fiat, et ob id de ea re ipsa restituenda tenetur. Et is quidem, qui mutuum accepit, si quolibet fortuito casu, quod accepit, amiserit, veluti incendio, ruina, naufragio aut latronum hostiumve incursu, nihilo minus obligatus permanet. At is, qui utendum accepit, sane quidem exactam diligentiam custodiendæ rei præstare jubetur nec sufficit ei, tantam diligentiam adhibuisse, quantam suis rebus adhibere solitus est, si modo alius diligentior poterit eam 2. A person, too, to whom a thing is given as a commodatum, i. e. is given that he may make use of it, is bound re, and is subject to the actio commodati. But there is a wide difference between him and a person who has received a mutuum; for the thing is not given him so that it may become his property, and he therefore is bound to restore the identical thing he received. And, again, he who has received a mutuum, if by any accident, as fire, the fall of a building, shipwreck, the attack of thieves or enemies, he loses what he received, still remains bound. But he who has received a thing lent for his use, is indeed bound to employ the utmost rem custodire : sed propter majorem vim majoresve casus non tenetur, si modo non hujus culpa is casus intervenerit alioquin si id, quod tibi commodatum est, peregre ferre tecum malueris et vel incursu hostium prædonumve vel naufragio amiseris, dubium non est, quin de restituenda ea re tenearis. Commodata autem res tunc proprie intellegitur, si nulla mercede accepta vel constituta res tibi utenda data est. Alioquin mercede interveniente locatus tibi usus rei videtur: gratuitum enim debet esse commodatum. diligence in keeping and preserving it; nor will it suffice that he should take the same care of it, which he was accustomed to take of his own property, if it appears that a more careful person might have preserved it in safety; but he has not to answer for loss occasioned by superior force, or extraordinary accident, provided the accident is not due to any fault of his. If, however, you take with you on a journey the thing lent you to make use of, and you lose it by the attack of enemies or robbers, or by shipwreck, you are undoubtedly bound to restore it. A thing is properly said to be commodatum, when you are permitted to enjoy the use of it, without any recompense being given or agreed on; for, if there is any recompense, the contract is that of locatio, as a thing, to be a commodatum, must be lent gratuitously. D. xliv. 7. 1. 3, 4; D. xiii. 5, 6. 12. As the advantage is, in almost every case, entirely on the side of the receiver of the commodatum, he was bound to take every care of it, or, as Gaius says, as great care as the most diligent paterfamilias takes of his own property. (D. xiii. 6. 18.) To use the technical phrase, it was essential' to the commodatum that it should be gratuitous. Things incident to a contract may be essential to it, i.e. necessarily belonging; natural, i.e. belonging in the absence of express agreement to the contrary; or accidental, i.e. belonging only by express agreement. The commodatum gave rise to the actio commodati, which was either directa or contraria; by the actio commodati directa, the commodans made the receiver of the commodatum restore the thing lent, after the receiver had had it in his possession for the time agreed on (for he could not reclaim it before), or made him pay for any loss accruing through his fault. By the actio commodati contraria, the receiver of the commodatum obtained from the commodans compensation for any extraordinary expenses which the preservation of the thing had entailed, or for any losses occasioned by the fault of the commodans. The actio was, in the former case, termed directa, because it proceeded from what was a necessary part of the execution of the contract, viz., the thing lent being put in the possession of the receiver, while the actio contraria only arose from a thing which might happen or not, viz. there being some extraordinary expense, or some fault on the part of the commodans. (See D. xiii. 6. 17.) All the actions arising out of contracts re, except the condictio ex mutuo, were bona fidei. 3. Præterea et is, apud quem res aliqua deponitur, re obligatur et 3. A person, again, with whom a thing is deposited, is bound re, and is |