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claims, could not be taken into consideration unless exceptions were inserted bringing them before the notice of the judge. And interest could not generally be claimed from before the time of the litis contestatio, except by special stipulation. (D. xii. 1. 31.) It was the actions derived from the jus civile, i.e. real actions and condictions, that were stricti juris. That a real action should, as in the case of the petitio hereditatis, be bonæ fidei, was quite an exception. But the petitio hereditatis had characteristics which allied it with personal actions, habet præstationes quasdam personales. (D. y. 3. 25. 18.) It could only be brought against those who possessed an inheritance (1) pro herede, i.e. as heir or bonorum possessor, or (2) pro possessore. Pro possessore possidet prædo qui interrogatus cur possideat, responsurus sit quia possideo, i.e. a possessor who does not pretend to justify his possession by any legal title. (D. v. 3. 11 and 12.) And not only was the petitio hereditatis thus personal in the sense of being limited to two classes of persons, but it had some of the consequences of a personal action. By it the plaintiff could recover from the possessor moneys he had derived from the inheritance, and it could be brought against debtors of the deceased to make them pay what they owed to the inheritance in case these debtors claimed to retain their debts as being the right heirs. (D. v. 3. 13. 15; D. v. 3. 42.) The jurists had been divided on the point whether in a petitio hereditatis cognisance could be taken of dolus malus without an exceptio. Justinian decided that it could, the action being treated as one bonæ fidei.
Actiones arbitrariæ are treated of in paragr. 31.
An action prescriptis verbis, otherwise in factum præscriptis verbis, or civilis in factum, was, as we have elsewhere said, an action in which at the head of the formula were placed words stating the facts giving rise to a contract which did not come under any of the heads of contracts bearing a particular name. Of these actions, which were always bonæ fidei and in jus concepta, the two mentioned in the text are only examples. In the contract permutatio, each party made a contract re, i.e. by depositing the thing bartered with the other ; but the thing given was not given as a mutuum, a commodatum, a depositum, or a pignus, and therefore the circumstances had to be stated specially. The action de æstimato was given when a thing was entrusted to another to sell for a certain sum; the agent being permitted to retain all he received above that given, and to give back the thing if he could not obtain the price fixed. This was not precisely a locatio, a societas, or a mandatum, and therefore the action was given in the form of one præscriptis verbis. (See Bk. iii. Tit. 13. 2.)
they owe.debts as beinad been divide taken of do the
29. Fuerat antea et rei uxoriæ 29. Formerly, there was the action actio ex bonæ fidei judiciis ; sed rei uxoriæ, which was included among cum, pleniorem esse ex stipulatu ac- the actions bonæ fidei ; but finding the tionem invenientes, omne jus, quod action ex stipulatu to be more adres uxoria ante habebat, cum multis vantageous, we have transferred, with
divisionibus in ex stipulatu actionem, many divisions, to the action ex stipequæ de dotibus exigendis proponitur, latu, when given for the recovery of transtulimus, merito rei uxoriæ ac- marriage portions, all the effects before tione sublata, ex stipulatu, quæ pro attaching to the action rei uxoriæ; the ea introducta est, naturam bona actio rei uxoriæ being then reasonably fidei judicii tantum in exactione done away with, the action ex stipulatu, dotis meruit, ut bonæ fidei sit. Sed by which it is replaced, naturally aset tacitam ei dedimus hypothecam : sumed the character of an action bonæ præferri autem aliis creditoribus in fidei, but assumed it only when brought hypothecis tunc censuimus, cum ipsa for the recovery of a marriage portion. mulier de dote sua experiatur, cujus We have also given the wife an implied solius providentia hoc induximus. mortgage, but when we prefer her to
mortgagees, we do so only whenever she herself sues for her marriage portion. For it is to her personally that
we grant the privilege. D. iv. 5. 8; C. v. 13; C. viii. 18. 12. 1.
In order to enforce the restitution of a marriage portion, the actio rei uxoriæ was given; but sometimes the wife or other person entitled, not content with the remedy, stipulated with the husband for the restitution, and thus secured the power of bringing an action ex stipulatu.
In the actio rei uxorice, which was an action bona fidei, the husband could, for different reasons, make certain deductions in his restitution of the dos. He had three years in which to make restitution of all things, quæ numero, pondere, mensurave constant; he could oppose to the action the beneficium competentiæ, that is, he was only condemned to pay quantum facere potest; and he could deduct the useful as well as the necessary expenses he had incurred in managing the dotal property. (See paragr. 37.) The wife could not transmit the action to her heirs, and if her husband was deceased, and she had benefited by his testament, she could not both accept the gift under the testament, and also ask for the restitution of her portion, but was obliged to abandon either the one advantage or the other. (Ulp. Reg. 6.)
None of these drawbacks attended the action ex stipulatu. There could be no deductions, no delay in payment, no regard to the husband's power to pay. The action passed to the heirs of the wife, and she could take, in addition, anything given her by her husband's testament.
Justinian united the two actions into one. However the dos might have been given, and whether there had really been any stipulation to restore it, a tacita stipulatio was, in every case, to be supposed. The actio rei uxoriæ was to be abolished, and all actions for the restitution of a marriage portion to be brought ex stipulatu. But then, this action was treated as one bonæ fidei, and produced most of the advantages which the husband had enjoyed under the actio rei uxoriæ. He had a year in which to restore all moveables; he could claim the beneficium competentiæ, and might deduct the necessary expenses he had been put to. (See paragr. 37.) Lastly, in order to make the position of the
wife more secure, Justinian gave her an implied mortgage on the effects of her husband, taking priority over all other incumbrances -a privilege, however, personal to herself. (C. iv. 13.)
30. In bonæ fidei autem judiciis 30. In all actions bonæ fidei full libera potestas permitti videtur ju- power is given to the judge to deterdici ex bono et æquo æstimandi, mine, according to the rules of equity, quantum actori restitui debeat. In how much ought to be restored to the quo et illud continetur, ut, si quid plaintiff'; whence it follows that when invicem actorem præstare oporteat, the plaintiff also is found to be indebted eo compensato, in reliquum is, cum to the defendant, the debtor ought to quo actum est, condemnari debeat. be allowed to set off the sum due to Sed et in strictis judiciis ex rescripto him, and to be condemned only to pay divi Marci opposita doli mali excep- the difference. Even in actions stricti tione compensatio inducebatur. Sed juris, a rescript of the Emperor Marcus nostra constitutio eas compensa- permitted a set-off to be claimed, by tiones, quæ jure aperto nituntur, opposing the exception of fraud ; but latius introduxit, ut actiones ipso our constitution, when the debt due jure minuant sive in rem sive per- to the defendant is evident, has given sonales sive alias quascumque, ex- a greater latitude to claims of set-off ; cepta sola depositi actione, cui for now actions, real or personal, or of aliquid compensationis nomine op- whatever kind, are ipso jure reduced poni satis impium esse credidimus, by the claim, with the exception only ne sub prætextu compensationis de- of the action of deposit, against which positarum rerum quis exactione de we have judged it highly improper to fraudetur.
permit any claim of set-off to be made, Test under this pretence any one should be fraudulently prevented from re
covering the thing deposited. Gar. iv. 61 ; C. iv. 31. 14. pr. and 1; C. iv. 34. 11.
The subject of compensatio will be treated of more fully under paragr. 39.
31. Præterea quasdam actiones 31. Some actions, again, are called arbitrarias, id est ex arbitrio judicis arbitrary, as depending upon the arpendentes, appellamus, in quibus bitrium of the judge. In these, if the nisi arbitrio judicis is, cum quo defendant does not, on the order of agitur, actori satisfaciat, veluti rem the judge, give the satisfaction awarded restituat vel exhibeat vel solvat vel by the judge, and either restore, exex noxali causa servum dedat, con- hibit, or pay the thing, or give up a demnari debeat. Sed istä actiones slave that has committed an injury, he tam in rem quam in personam in- ought to be condemned. Of these ar. veniuntur. In rem veluti Publiciana, bitrary actions some are real and some Serviana de rebus coloni, quasi personal : real, as the actions PubliServiana, quæ etiam hypothecaria ciana, Serviana as to the property of vocatur : in personam veluti quibus a farmer, and quasi Serviana, also de eo agitur, quod aut metus causa called hypothecaria; personal, as those aut dolo malo factum est, item qua by which a suit is commenced on acid, quod certo loco promissum est, count of something done through fear petitur. Ad exhibendum quoque or fraud, and that by which something actio ex arbitrio judicis pendet. In is sought which was promised to be his enim actionibus et ceteris simili- paid at a particular place; the action bus permittitur judici ex bono et ad exhibendum also depends on the aræquo secundum cujusque rei, de qua bitrium of the judge : in these actions, actum est, naturam æstimare, quem- and others of a like nature, the judge admodum actori satisfieri oporteat. may determine, according to the prin
ciples of equity and the circumstances of the particular case, the satisfaction
which the plaintiff ought to receive. D. vi. 1. 68; D. iv. 2. 14. 4; D. xiii. 4. 4.1; D. x. 4. 3. 9; D. xx. 1. 16. 3;
D. iv. 3. 18.
In the actiones arbitrarie the judge was instructed only to condemn the defendant in a sum of money, if he did not satisfy the demand of the plaintiff, supposing that demand was well founded. When, therefore, the judge had ascertained the validity of the plaintiff's claim, he issued an order (arbitrium) to the defendant, and at the same time condemned him to pay, in case of his refusal, a sum proportionate to the value of what was claimed, quanti ea res erit. This was fixed, if the defendant, when ordered to restore a thing, had fraudulently put it out of his power to restore it, by the plaintiff himself, who stated on his oath (D. xii. 3. 5) the amount he considered fairly due to him as compensation ; otherwise the judex fixed the amount according to the circumstances of the case; and, at any rate in the time of Ulpian, the manus militaris was employed, by the direction of the judge, to put the plaintiff in possession, when the defendant had the thing in his possession and would not give it up. (D. vi. 1. 68.)
Actions in rem were enforced by being made arbitrariæ, and all actions in rem were so enforced. (See Tit. 17. 2.) In real actions the satisfaction ordered by the judge was to restore the thing. In the actio Serviana and quasi-Serviana, the arbitrium was alternative, and the defendant was ordered either to give up the thing pledged, or to pay the debt. (D. xx. 1. 16. 3.) It is to this case that the words 'vel solvat in the text refer. When the thing claimed was restored, the condemnatio might still be made available for the fructus. (D. vi. 1. 68.) Among personal actions, those quod metus causa, de dolo malo, and ad exhibendum were arbitrario, because they were brought virtually to have something restored or exhibited. The action de eo quod certo loco promissum est was made arbitraria, for the peculiar reason mentioned below.
With respect to the actio quod metus causa, see paragr. 25 and 27. The actio de dolo malo was given to avoid the consequences of a dolus malus, but only when there was no other means of avoiding them (D. iv. 3. 1, 2); it was in simplum; it subjected the defendant, if condemned, to infamy, and had to be brought within a year. (D. iv. 3. 29.)
As will be found from Tit. 12. 2, in every action the defendant was to be absolved if, before sentence was given, he satisfied the demands of the plaintiff.
Qua id, quod certo loco promissum est, petitur. When a contract was made in which it was agreed that payment should be made at a particular place, the creditor could not demand payment anywhere else. If he did, he asked for more than was his due, and was subject to the consequences of a pluris-petitio.
(See paragr. 33.) Supposing, indeed, the action brought on the obligation was one bonae fidei, or had an intentio incerta, as being for an undetermined object, then, as the judge would take into account all the circumstances of the case, and allow the defendant the benefit of whatever difference being sued in a wrong place could be supposed to make to him, the consequence of this plurispetitio would be immaterial. But if the action was stricti juris and for a thing certain, the plaintiff could not have brought it elsewhere than in the place named without incurring the consequences of a plus petitio, had not the prætor come to his relief and given him the actio arbitraria mentioned in the text. By this action the creditor was allowed to sue in the wrong place, but the prætor compensated the debtor by giving him an advantage. The action was made arbitraria, and the debtor was ordered to pay what the creditor claimed, or to give security that it would be paid in the place where due. If he did not do this, then in the condemnatio the judex fixed an amount in which the advantage it might have been to the debtor to have paid in the particular place was taken into consideration. (See paragr. 33.) The prætor, however, perhaps only allowed the creditor to take advantage of this action if the defendant absented himself from the place where the payment ought to have been made (D. xiii. 4. 1), and then the creditor could bring this action either at Rome or in any place where the defendant had a domicile, or in any place where the defendant consented to appear. (D. v. 1. 19. 4.)
32. Curare autem debet judex, ut 32. A judge ought, as much as posomnimodo, quantum possibile ei sit, sible, to take care that his sentence certæ pecuniæ vel rei sententiam awards a thing or sum certain, even ferat, etiam si de incerta quantitate though the claim submitted to him apud eum actum est.
may have been for an uncertain quan
GAI. iv. 48. 52 ; C. vii. 4. 17. • Certce pecuniæ vel rei. Before the formulary system the
judgment might be either to give a thing or to pay a sum of money. Under the formulary system the condemnatio was always to pay a sum of money. Under the system of judicia extraordinaria a return was made to the old law, and the condemnatio might be not only for a certain sum of money, but also for any other definite thing, that thus the object of the demand might be directly obtained.
33. Si quis agens in intentione 33. Formerly, if a plaintiff claimed sua plus complexus fuerit, quam ad in his intentio more than his due, he eum pertinet, causa cadebat, id est failed in his action, that is, he lost the rem amittebat, nec facile in inte- thing owing to him, nor was it easy for grum a prætore restituebatur, nisi him to get reinstated by the prætor minor erat viginti quinque annis. unless he was under the age of twentyHuic enim sicut in aliis causis causa five years, for in this, as well as in cognita succurrebatur, si lapsus other cases, in which aid was given on juventute fuerat, ita et in hac causa good ground for it being proved, it was