GRICE E FISISCHELLA: CONTRATTO

 Whoever has glanced through the pages of  any text-book on Mercantile Law will hardly deny  that Contract is the handmaid if not actually the  child of Trade. Merchants and bankers must have  what soldiers and farmers seldom need, the means  of making and enforcing various agreements with  ease and certainty. Thus, turning to the special  case before us, we should expect to find that when  Rome was in her infancy and when her free  inhabitants busied themselves chiefly with tillage  and with petty warfare, their rules of sale, loan,  suretyship, were few and clumsy. Villages do not  contain lawyers, and even in towns hucksters do  not employ them. 'Poverty of Contract was in fact  a striking feature of the early Roman Law, and can  be readily understood in the light of the rule just  stated. The explanation given by Sir Henry Maine  is doubtless true, but does not seem altogether  adequate. He points out' that the Roman house-  hold consisted of many families under the rule of a   ' Ancient Law, p. 312.   B. E. 1   Digitized by Microsoft®     2 INTRODUCTION.   paternal autocrat, so that few freemen had what we  should call legal capacity, and consequently there  arose few occasions for Contract. This may indeed  account for the non-existence of Agency, but not  for that of all other contractual forms. For if the  households had been trading instead of farming  corporations, they must necessarily have been more  richly provided in this respect. The fact that their  commerce was trivial, if it existed at all, alone  accounts completely for the insignificance of Con-  tract in their early Law.   The origin of Contract as a feature of social life  was therefore simultaneous with the birth of Trade  and requires no further explanation. It is with the  origin and history of its individual forms that the  following pages have to deal. As Roman civilization  progresses we find Commerce extending and Contract  growing steadily to be more complex and more  flexible. Before the end of the Roman Republic  the rudimentary modes of agreement which sufficed  for the requirements of a semi-barbarous people  have been almost wholly transformed into the  elaborate system of Contract preserved for us in  the fragments of the Antonine jurists.     Digitized by Microsoft®     CHAPTER I.   THE REGAL PERIOD: EARLY AGREEMENTS.   At the most remote period concerning which  statements of reasonable accuracy can be made,  and which for convenience we may call the Regal  Period, we can distinguish three ways of securing  the fulfilment of a promise. The promise could  be enforced either (1) by the person interested,  or (2) by the gods, or (3) by the community. When  however we speak of enforcement, we must not think  of what is now called specific performance, a con-  ception unknown to primitive Law. The only kind  of enforcement then possible was to make punish-  ment the alternative of performance.   I. Self-help, the most obvious method of re-  dress in a societj' just emerging from barbarism, was  doubtless the most ancient protection to promises,  since we find it to have been not only the mode by  which the anger of the individual was expressed, but  also one of the authorised means employed by the  gods or the community to signify their displeasure.  This rough form of justice fell within the domain of  Law in the sense that the law allowed it, and even   1 2   Digitized by Microsoft®     4 THE EEGAL PERIOD : EARLY AGREEMENTS.   encouraged men to punish the delinquent, whenever  religion or custom had been violated. But as people  grew more civilized and the nation larger, sdf-help  must have proved a difficult and therefore inade-  quate remedy. Accordingly its scope was by degrees  narrowed, and at last with the introduction of surer  methods it became wholly obsolete.   II. Eeligious Law, as administered by the  priests, the representatives of the gods, was another  powerful agency for the support of promises. A  violation of Fides, the sacred bond formed between  the parties to an agreement, was an act of impiety  which laid a burden on the conscience of the delin-  quent and may even have entailed religious disabili-  ties. Fides was of the essence of every compact,  but there were certain cases in which its violation  was punished with exceptional severity. If an  agreement had been solemnly made in the presence  of the gods, its breach was punishable as an act  of gross sacrilege.   III. The third agency for the protection of  promises was legal in our sense of the word. It  consisted of penalties imposed upon bad faith by  the laws of the nation, the rules of the gens, or the  by-laws of the guild to which the delinquent  belonged. What the sanction was in each case we  are left to conjecture. It may have been public  disgrace, or exclusion from the guild, or the paying  of a fine. And as some promises might be strength-  ened by an appeal to the gods, so might others by  an invocation of the people as witnesses.   Agreements then might be of three kinds corre-   Digitized by Microsoft®     EARLY PACTA. 5   spending to the three kinds of sanction. They  might consist of (1) an entirely formless compact,  (2) a solemn appeal to the gods, or (3) a solemn  appeal to the people.   I. A formless compact is called pactum in the  language of the twelve Tables. It was merely a  distinct understanding between parties who trusted  to each other's word, and in the infancy of Law  it must have been the kind of agreement most  generally used in the ordinary business of life.  Such agreements are doubtless the oldest of all,  since it is almost impossible to conceive of a time  when men did not barter acts and promises as freely  as they bartered goods and without the accompani-  ment of any ceremony. Compacts of this sort were  protected by the universal respect for Fides, and  their violation may perhaps have been visited with  penalties by the guild or by the gens. But intensely  religious as the early Romans were, there must have  been cases in which conscience was too weak a  barrier against fraud, and slight penalties were  ineffectual. Fear of the gods had to be reinforced  by the fear of man, and self-help was the remedy  which naturally suggested itself. In the twelve  Tables pactum appears in a negative shape,  as a compact by performing which retaliation or  a law-suit could be avoided ^ If this compact was  broken the offended party pursued his remedy.  Similarly where a positive pactum was violated, the  injured person must have had the option of chastising   1 Gell. XX. 1. 14. Auct. ad Her. ii. 13. 20.  Digitized by Microsoft®     6 THE BEGAL PERIOD: EARLY AGREEMENTS.   the delinquent. His revenge might take the form  of personal violence, seizure of the other's goods,  or the retention of a pawn already in his possession.  He could choose his own mode of punishment, but if  his adversary proved too strong for him, he doubtless  had to go unavenged ; whereas if the broken agree-  ment belonged to either of the other classes, the  injured party had the whole support of the  priesthood or the community at his back, and  thus was certain of obtaining satisfaction. It is  therefore plain that though formless agreements  contained the germ of Contract, they could not  have produced a true law of Contract, because by  their very nature they lacked binding force. Their  sanction depended on the caprice of individuals,  whereas the essence of Contract is that the breach  of an agreement is punishable in a particular way.  A further element was needed, and this was supplied  by the invocation of higher powers.   II. At what period the fashion was introduced  of confirming promises by an appeal to the gods  it would be idle to guess. Originally, it seems,  the plain meaning of such appeals was alone con-  sidered, and their form was of no importance.  But under the influence of custom or of the priest-  hood, they assumed by degrees a formal character,  and it is thus that we find them in our earliest  authorities.   Since Eeligion and Law were both at first the  monopoly of the priestly order, and since the religious  forms of promise have their counterpart in the  customs of Greece and other primitive peoples,   Digitized by Microsoft®     PUBLIC AGREEMENTS. 7   whereas the secular forms are peculiarly RomanS  the religious forms are evidently the older, and  formal contract has therefore had a religious origin.  Fides being a divine thing, the most natural means  of confirming a promise was to place it under divine  protection. This could be accomplished in two  ways, by iusiurandum or by sponsio, each of which  was a solemn declaration placing the promise or  agreement under the guardianship of the gods.  Each of these forms has a curious history, and as  they are the earliest specimens of true Contract,  we may discuss them in the next chapter.   III. Another method, and one peculiar to the  Romans, which naturally suggested itself for the  protection of agreements, was to perform the whole  transaction in view of the people. Publicity ensured  the fairness of the agreement, and placed its ex-  istence beyond dispute. If the transaction was  essentially a public matter, such as the official sale of  public lauds, or the giving out of public contracts,  no formality seems ever to have been required, so  that even a formless agreement was in that case  binding. The same validity could be secured for  private contracts by having them publicly witnessed,  and, the nexuTn was but one application of this  principle. In testamentary Law it seems probable  that the public will in comitiis calatis was also  formless, whereas in private the testator could only  give effect to his will by formally saying to his  fellow-citizens " testimonium, mihi perhibetote."   Thus the two elements which turned a bare  1 See p. 22.   Digitized by Microsoft®     8 THE REGAL PERIOD: EARLY AGREEMENTS.   agreement into a contract were religion and publicity.  The naked agreements (pacta) need not concern us,  since, their validity as contracts never received  complete recognition. But it will be the object of  the following pages to show how agreements grew  into contracts by being invested with a religious or  public dignity, and to trace the subsequent process  by which this outward clothing was slowly cast ofif.  Formalism was the only means by which Contract  could have risen to an established position, but  when that position was fully attained we shall find  Contract discarding forms and returning to the state  of bare agreement from which it had sprung.     Digitized by Microsoft®     CHAPTER II.   CONTRACTS OF THE EEGAL PERIOD.   Art. 1. IvsiVRANDVM is derived by some  from louisiurandum^, which merely indicates that  Jupiter was the god by whom men generally swore.  To make an oath was to call upon some god to  witness the integrity of the swearer, and to punish  him if he swerved from it. This appears from the  wording of the oath inLivy^ where Scipio says: "Si  sciens /alio, turn me, luppiter optime maxime, domum  familiam remque meam pessimo leto afficias," and  from the oath upon the luppiter lapis given by  Polybius and Paulus Diaconus, where a man throws  down a flint and says : " Si sciens folio, turn me  Dispiter saliia urbe arceque bonis eiiciat, uti ego hunc  lapidem." A promise accompanied by an oath was  simply a unilateral contract under religious sanction.  And it would seem that the oath was in fact used for  purposes of contract. Cicero remarks^ that the oath  was proved by the language of the XII Tables to  have been in former times the most binding form of  promise ; and since an oath was still morally binding   1 Of. Apul. de deo Socr. 5. = xxii. 53.   3 Off. III. 31. 111.   Digitized by Microsoft®     10 CONTRACTS OF THE REGAL PERIOD.   in the time of Cicero, though it had then no legal  force, the point of his remark must be that in  earlier times the oath was legally binding also.  From Dionysius we know that the altar of Hercules  (called Ara Maxima) was a place at which solemn  compacts (a-vvOrJKai) were often made', while Plautus  and Cicero inform us that such compacts were  solemnized by grasping the altar and taking an  oath''- It would seem probable that the gods were  consulted by the taking of auspices before an  oath was made. Cicero says that even in private  affairs the ancients used to take no step without  asking the advice of the gods*; and we may safely  conjecture that whenever a god was called upon to  witness a solemn proniise, he was first enquired of,  so that he might have the option of refusing his  assent by giving unfavourable auspices. The terms  of the oath were known as concepta uerba, at least  in the later Republic, and like the other forms of the  period they were strictly construed*. Periuriwm did  not mean then, as now, false swearing. It meant  the breach of an oath', the commission of any act at  variance with the uerba concepta'^.   There is some dispute as to what were the exact  consequences of such a breach. Voigt' thinks that  it merely entailed excommunication from religious  rites, but Danz^ is clearly right in maintaining that  its consequences in early times were far more serious ;   1 Dion. 1. 40. 2 piaut. Rud. 5. 2. 49. Cic. Flace. 36. 90.   3 Biv. 1. 16. 28. " Seru. ad Aen. 12. 13.   " i.e. sciens fallere, Plin. Paneg.d'i. Seneca, Ben. iii. 37. 4.  8 Off. III. 29. 108. ' lus Nat. in. 229. 8 j{g„i. ^(j_ „_ g 149     Digitized by Microsoft®     EFFECTS OF IVSIVSAJSfDVM. 11   they amounted in fact to complete outlawry.  Cicero says that the sacratae leges of the ancients  confirmed the validity of oaths. Now a sacrata lex  was one which declared the transgressor to be  sacer (i.e. a victim devoted) to some particular god^  and sacer in the so-called laws of Seruius Tullius^  and in the XII Tables' was the epithet of condem-  nation applied to the undutiful child and the  unrighteous patron. So likewise it seems highly  probable that the breaker of an oath became sacer,  and that his punishment, as Cicero hints'*, was  usually death. The formula of an oath given by  Polybius" is more comprehensive than that given  by Paulus Diaconus^ for in it the swearer prays  that, if he should transgress, he may forfeit not  only the religious but also the civil rights of his  countrymen. This shows that the oath-breaker was  an utter outcast; in fact, as the gods could not  always execute vengeance in person, what they did  was to withdraw their protection from the offender  and leave him to the punishment of his fellow-men'.  The drawbacks to this method of contract were the  same as those of the old English Law, which made  hanging the penalty for a slight theft ; the penalty  was likely to be out of all proportion to the injury  inflicted by a breach of the promise. So awful  indeed was it, that no promise of an ordinary kind  could well be given in such a dangerous form, and  consequently the oath was not available for the   1 Festus, p. 318, s.u. sacratae. - Fest. p. 230, s.u. plorare.   » Seru. ad Aen. 6. 609. ^ Leg. ii. 9. 22. ^ ni. 25.   5 p. 114, s.u. lapideni. ' Liu. v. 11. 16.   Digitized by Microsoft®     12 CONTRACTS OF THE REGAL PERIOD.   common affairs of daily life. The use of the oath  therefore disappeared with the rise of other forms of  binding agreement, the severity of whose remedies  was proportionate to the rights which had been  violated; while at the same time the breaking  of an oath came to be considered as a moral, instead  of a legal, offence, and by the end of the Republic  entailed nothing more serious than disgrace (dedecus).  In one instance only did the legal force of the oath  survive. As late as the days of Justinian, the  services due to patrons by their freedmen were still  promised under oath'. But the penalty for the  neglect of those services had changed with the  development of the law. At and before the time of  the XII Tables, the freedman who neglected his  patron, like the patron who injured his freedman'',  no doubt became sacer, and was an outlaw fleeing  for his life, as we are told by Dionysius'. But in  classical times the heavy religious penalty had  disappeared, and the iurisiurandi ohligatio was en-  forced by a special praetorian action, the actio  operarum*. By the time of Ulpian the effects of  the iurata operarum promissio seem indeed to have  been identical with those of the operarum stipu-  lation, though the forms of the two were still quite  distinct.   We may then summarise as follows our knowledge  as to this primitive mode of contract :   The form was a verbal declaration on the part of  the promisor, couched in a solemn and carefully   1 38 Dig. 1. 7. = Seru. ad Aen. 6. 609. s n, iq.   * 38 Big. 1. 2 and 7. = of. 33 Dig, 1. 10.   Digitized by Microsoft®     THE EARLY SP0N8I0. 13   worded^ formula (concepta uerba), wherein he called  upon the gods (testari deosY, to behold his good faith  and to punish him for a breach of it.   The sanction was the withdrawal of divine  protection, so that the delinquent was exposed to  death at the hand of any man who chose to slay  him.   The mode of release, if any, does not appear. In  classical times it was the acceptilatio^, but this was  clearly anomalous and resulted from the similar  juristic treatment of operae promissae and operae  iuratae.   Art. 2. Sponsio. Though the point is contested  by high authority, yet it scarcely admits of a doubt  that there existed from very early times another  form, known as spon^io, by which agreements could  be made under religious sanction. This method,  as Danz has pointed out, was originally connected  with the preceding one. It was derived from the  stern and solemn compact made under an oath to  the gods. But Danz goes too far when he identifies  the two, and states that sponsio was but another  name for the sworn promise^. The stages through  which the sponsio seems to have passed tell a  different story. The word is closely connected with  (Tirovhrj, a-rrevSeiv, and hence originally meant a  pouring out of wine'*, quite distinct from the con-  vivial Xot^T) or lihatio^, so that " libation " is not its  proper equivalent. The other derivation given by   1 38 Dig. 1. 7, fr. 3. ^ Plaut. Rud. 5. 2. 52.   5 46 Dig. 4. 13. '' Danz, Sacr. Schutz, p. 105.   5 Featus-p. 329 s.u. spondere. ^ Leist, Greco-It. B. G. p. 464, note o.   Digitized by Microsoft®     14 CONTRACTS OF THE REGAL PERIOD.   Varro' and Verrius^ from spons, the will, whence  according to Girtanner' spmsio must have meant a  declaration of the will, savours somewhat too strongly  of classical etymology.   I. This pouring out of wine, as Leist* has  ■ shown, was in the Homeric age a constant accom-  paniment to the conclusion of a sworn compact of  alliance (opKia iriaTo) between friendly nations.  The sacrificial wine seems originally to have added  force to the oath by symbolising the blood which  would be spilt if the gods were insulted by a breach  of that oath. In this then its original form sponsio  was nothing more than an accessory piece of cere-  monial.   II. The second stage was brought about by the  omission of the oath and by the use of wine-pouring  alone as the principal ceremony in making less  important agreements of a private nature. In the  Indian Sutras for instance a sacrifice of wine is  customary at betrothals ^ and comparison shows that  the marriage ceremonies of the Romans, in connec-  tion with which we find sponsio and sponsalia applied  to the betrothal and sponsa to the bride °, were very  like those of other Aryan communities'. We may  therefore clearly infer that at Rome also there was a  time when the pouring out of wine was a part of the  marriage-contract; and thus our derivation of the  word receives independent confirmation.   III. In the third and last stage sponsio meant   ^ L. L. VI. 7. 69. ° Festus, s. u. spotidere. ' Stip. p. 84.  •* Greco-It. B. G. § 60. = Leist, Alt-Ar. I. Civ. p. 443.   » Gell. IV. 4. Varro, L. L. vi. 7. 70. ' Leist, loc. cit.     Digitized by Microsoft®     PECULIARITIES OF SPONSIO. 15   nothing more than a particular form of promise, and  it is easy to see how this came about. At first the  verbal promise took its name from the ceremony of  wine-pouring which gave to it binding force ; but in  course of time this ceremony was left out as taken  for granted, and then the promise alone, provided  words of style were correctly used, still retained its  old uses and its old name. Sponsio from being a  ceremonial act became a form of words. Such was  the final stage of its development.   The importance attached to the use of the words  spondesne ?, spondeo in preference to all others' thus  becomes clear. Spondesne ? spondeo originally meant  " Do you promise by the sacrifice of wine ? " "I do so  promise," just as we say, "I give you my oath,"  when we do not dream of actually taking one.   Another peculiarity of sponsio, noticed though  not explained by Gaius^, was the fact that it could  be used in one exceptional case to make a binding  agreement between Romans and aliens, namely, at  the conclusion of a treaty. Gains expresses surprise  at this exception. But if, as above stated, a sacrifice  of pure wine ((nrovBal aKprjToi) was one of the early  formalities of an international compact (opKia iria-Ta),  it was natural that the word spo'ndeo should survive  on such occasions, even after the oath and the wine-  pouring had long since vanished.   Sponsio being then a religious act and subse-  quently a religious formula, its sanctity was doubtless  protected by the pontiffs with suitable penalties.  What these penalties were we cannot hope to know,  1 Gai. HI. 93. ^ m. 94.   Digitized by Microsoft®     16 CONTRACTS OF THE REGAL PERIOD.   though clearly they were the forerunners of the  penal sponsio tertiae partis of the later procedure.  Varro^ informs us that, besides being used at be-  trothals the sponsio was employed in money (pecunia)  transactions. If pecunia includes more than money  we may well suppose that cattle and other forms of  property, which could be designated by number and  not by weight, were capable of being promised in  this manner. Indeed it is by no means unlikely^  that nesBum was at one time the proper form for  a loan of money by weight, while sponsio was the  proper form for a loan of coined money (pecunia  numerata). The making of a sponsio for a sum  of money was at all events the distinguishing feature  of the actio per sponsionem, and though we cannot  now enter upon the disputed history of that action,  its antiquity will hardly be denied.   The account here given of the origin and early  history of the sponsio is so different from the views  taken by many excellent authorities that we must  examine their theories in order to see why they  appear untenable. One great class of commentators  have held that the sponsio is not a primitive institu-  tion, but was introduced at a date subsequeat to the  XII Tables. The adherents of this theory are  afraid of admitting the existence, at so early a period,  of a form of contract so convenient and flexible  as the sponsio, and they also attach great weight to  the fact that no mention of sponsio occurs in our  fragments of the XII Tables. While it would  doubtless be an anachronism to ascribe to the early  1 L. L. VI. 7. 70. 2 Karsten, Stip. p. 42.     Digitized by Microsoft®     THEORIES AS TO ORIGIN OF SP0N810. 17   sponsio the actionability and breadth of scope which  it had in later times, still it may very well have  been sanctioned by religious law, in ways of which  nothing can be known unless the pontifical Com-  mentaries of Papirius' should some day be discovered.  As to the silence of the XII Tables on this  subject, we are told by Pomponius that they were  intended to define and reform the law rather than  to serve as a comprehensive code". Therefore they  may well have passed over a subject like sponsio  which was already regulated by the priesthood. Or,  if they did mention it, their provisions on the  subject may have been lost, like the provisions as to  iusiurandmn, which we know of only through a  casual remark of Cicero's '>-   The early date here attributed to the sponsio  cannot therefore be disproved by any such negative  evidence. Let us see how the case stands with  regard to the question of origin.   (a) The theory best known in England, owing  to its support by Sir H. Maine, is that sponsio was a  simplified form of nexum, in which the ceremonial  had fallen away and the nuncupatio had alone been  left^. This explanation is now so utterly obsolete  that it is not worth refuting, especially since Mr  Hunter's exhaustive criticism^ One fact which in  itself is utterly fatal to such a theory is that the  nuncupatio was an assertion requiring no reply".     1 Dion. III. 3(5. ^ 1 Dig- 2. 2. 4.   3 Off. m. 31. 111. * Maine, Anc. Law, p. 326.   5 Hunter, Bovian Law, p. 385. " Gai. ii. 24.   B. E. 2   Digitized by Microsoft®     18 CONTRACTS OF THE REGAL PERIOD.   whereas the essential thing about the sponsio was a  question coupled with an answer.   (6) Voigt follows Girtanner in maintaining that  spondere signified originally " to declare- one's will,"  and he vaguely ascribes the use of sponsiones in  the making of agreements to an ancient custom  existing at Rome as well as in Latium'. He agrees  with the view here expressed that the sponsio was  known prior to the XII Tables, but thinks that  before the XII Tables it was neither a contract  (which is strictly true if by contract we mean an  agreement enforceable by action), nor an act in the  law, and that its use as a contract began in the  fourth century as a result of Latin influenced In  another place' he expresses the opinion that its  introduction as a contract was due to legislation, and  most probably to the Lex Silia. The objections to ■  this view are (1) that the etymology is probably  wrong, and (2) that the inference drawn as to the  original meaning of spondere involves us in serious  diflSculties. An expression of the will can be made  by a formless declaration as well as by a formal one.  And if a formless agreement be a sponsio, as it must  be if sponsio means any declaration of the will,  how are we to explain the formal importance  attaching to the use of the particular words '' spon-  desne ? spondeo." (3) This view ignores the religious  nature of the sponsio, which I have endeavoured to  establish, and (4) it forgets that sponsio, being part  of the marriage ceremonial, one of the first subjects   1 Bom. EG. 1. p. 42. ' lb. p. 43.   3 lus Nat. §§ 33-4.     Digitized by Microsoft®     THEORIES AS TO ORIGIN OF SPONSIO. 19   to be regulated by the laws of Romulus \ is most  probably one of the oldest Roman institutions.  Again (5), as Esmarch has observed^ the legislative  origin of the sponsio is a very rash hypothesis. We  only know that the Lex Silia introduced an improved  procedure for matters which were already actionable,  and had a new formal contract been created by such  a definite act we should almost certainly have been  informed of this by the classical writers.   (c) Danz also derives sponsio from spans, the  vvill; but he takes spondere to mean sua sponte  iurare, and thinks that the original sponsio was  exactly the same as iusiurandum, i.e. nothing more  than an oath of a particular kind^. His chief argu-  ment for this view is to be found in Paulus Diaconus,  who gives consponsor = coniurator. But why need  we suppose that Paulus meant more than to give a  synonym ? in which case it by no means follows that  spondere = iurare. For such a statement as that we  have absolutely no authority. Moreover, as we saw  above, iusiurandum was a one-sided declaration on  the part of the promisor only. How then could the  sponsio, consisting as it did of question and answer,  have sprung from such a source ? especially since  the iusiurandum, though no longer armed with  a legal sanction, was still used as late as the days of  Plautus alongside of the sponsio and in complete  contrast to it ?   {d) Girtanner, in his reply to the "Sacrale  Schutz" of Danz^, maintains that sponsio had nothing   1 Dion. n. 25. ^ ^. y_ far q. u. R. W. ii. 516.   ^ Sacr. Schutz, p. 149. *' Ueber die Sponsio, p. 4 ft.   2—2   Digitized by Microsoft®     20 CONTRACTS OF THE REGAL PERIOD.   to do with an oath, but was a simple declaration of  the individual will, and that stipulatio had its origin  in the respect paid to Fides. This view however  is even less supported by evideiice than that of  Danz'. Arguing again from analogy Girtanner  thinks that, as the Roman people regulated its  affairs by expressing its will publicly in the Comitia,  so we may conjecture that individuals could validly  express their will in private affairs, in other words  could make a binding sponsio. But this, as well  as being a wrong analogy, is a misapprehension of a  leading principle of early Law. For, as we have  seen, no agreement resting simply upon the will of  the parties (i.e. pactwn) was valid without some  outward stamp being affixed to it, in the shape  of approval expressed by the gods or by the people.  In the language of the more modem law, we may  say that such approval, tacit or explicit, religious or  secular, was the original caiisa ciuilis which dis-  tinguished contractus from pactiones. Now a popular  vote in the Comitia bore the stamp of public  approval as plainly as did the nexum. But the  sponsio, requiring no witnesses, was clearly not  endorsed by the people ; therefore the endorsement  which it needed in order to become a contractus  iuris ciuilis must have been of a religious nature,  and that such was the case appears plainly if we  admit that sponsio originated in a religious cere-  monial such as I have described.   To recapitulate the view here given, we mav  conclude that sponsio was a primordial institution  1 See Windsoheid, K. Y. fiir G. u. R. W. i. 291.   Digitized by Microsoft®     GROWTH OP SPONSION 21   of the Roman and Latin peoples, which grew into its  later form through three stages, (a) It was originally  a sacrifice of wine annexed to a solemn compact of  alliance or of peace made under an oath to the gods.  (b) Next it became a sacrifice used as an appeal to  the gods in compacts not jtnade under oath such as  betrothals. Just as iusiurandum for many purposes  was sufficient without the pouring out of wine, so for  other purposes sponsio came to be sufficient without  the oath, (c) Lastly it became a verbal formula,  expressed in language implying the accompaniment  of a wine-sacrifice, but at the making of which no  sacrifice was ever actually performed. In this final  stage, which continued as late as the days of Justi-  nian,   Its form was a question put by the promisee,  and an answer given by the promisor, each using  the verb spondere. " Filiam mihi spondesne ? "  " Spondeo." " Centum dari spondes ? " " Spondeo."  Throughout its history this was a form which Roman  citizens alone could use, in which fact we clearly see  religious exclusiveness and a further proof of religious  origin. Why they used question and answer rather  than plain statement is a minor point the origin  of which no theory has yet accounted for. The  most plausible conjecture seems to be that the  recapitulation by the promisee was intended to  secure the complete understanding by the promisor  of the exact nature of his promise.   Its sanction in the early period of which we  are treating was doubtless imposed by the priests,  but owing to our almost complete ignorance of the   Digitized by Microsoft®     22 CONTRACTS OF THE REGAL PERIOD.   pontifical law we cannot tell what that sanction  was.   Having now examined the ways in which an  agreement could be made binding under religious  sanction, let us see how binding agreements could  be made with the approval of the community.  There is reason to believe that this secular class  of contracts is less ancient than the religious class,  because nexum, and mancipium were peculiar to the  Romans, whereas traces of iusiurandum and sponsio  are found, as Leist has shown, in other Aryan  civilizations'.   Art. 3. NEXVM. There is no more disputed sub-  ject in the whole history of Roman Law than the  origin and development of this one contract. Yet the  facts are simple, and though we cannot be sure that  every detail is accurate, we have enough information  to see clearly what the transaction was like as  a whole. We know that it was a negotium per aes  et libram, a weighing of raw copper or other  commodity measured by weight in the presence of  witnesses^; that the commodity so weighed was  a loan' ; and that default in the repayment of a loan  thus made exposed the borrower to bondage* and  savage punishment at the hands of the lender. We  know also that it existed as a loan before the XII  Tables, for it is mentioned in them as something  quite different from mancipivjn^. To assert, as Bech-  mann does, that since nexum included conveyance as   1 Alt Ar. I. Civ. !•" Abt. pp. 435-443.   2 Gai. III. 173. 3 Mucins in Varro, L. L. 7. 105.  " Varro, L. L. vi. 5. 5 Clark, B. E. L. § 22.   Digitized by Microsoft®     THEORIES AS TO ORIGIN OF NEXVM. 23   well as loan " mancipiuvique " must therefore be an  interpolation into the text of the XII Tables S is an  arbitrary and unnecessary conjecture. The etymology  of nexum and of mancipium shows that they were  distinct conceptions. Mancipium implies the transfer  of manus, ownership ; nexum implies the making of  a bond {cf. nectere, to bind), the precise equivalent  of obligatio in the later law. It is true that both  nexum and mancipium required the use of copper  and scales, to measure in one case the price, in the  other the amount of the loan. But this coincidence  by no means proves that the two transactions were  identical. A modem deed is used both for leases and  for conveyances of real property, yet that would be  a strange argument to prove that a lease and a  conveyance were originally the same thing. Here  however we are met by a difficulty. If, as some  hold " and as I have tried to prove, we must regard  mancipium as an institution of prehistoric times  distinct from the purely contractual nexum, how  are we to explain the fact that nexum is used  by Cicero' and by other classical writers' as equi-  valent to mancipium, or as a general term signifying  omne quod per aes et libram geritur, whether a loan,  a will, or a conveyance ? Now first we must notice  the fact that nexum had at any rate not always been  synonymous with mancipium, for if it had been so,  there could have been no doubt in the minds of   1 Kauf, p. 130. ^ Mommsen, Hint. 1. 11. p. 162 n.   3 ad Fam. 7. 30; de Or. 3. 40; Top. 5. 28; Farad. 5. 1. 35.; pro  Mur. 2.   * Boethius lib. 3 ad Top. 5. 28 ; Gallua Aelius in Festus, s.u.  nexum ; Manilius in Varro, L. L. 7. 105.   Digitized by Microsoft®     24 CONTRACTS OF THE REGAL PERIOD.   Scaeuola and Varro that a res nexa was the same  thing as a res mandpata. This Scaeuola and Varro  both deny, and we must remember that Mucins  Scaeuola was the Papinian of his day. ManiUus* on  the other hand, struck perhaps by the likeness in  form of the obsolete nexum to other still existing  iwgotia per aes et Ubram, seems to have made nexum  into a generic term for this whole class of trans-  actions. In this he was followed by Gallus Aelius'.  The new and wider meaning, given by them to that  which was a technical term at the period of the  XII Tables, apparently became general in literature,  partly for the very reason that nexum no longer had  an actual existence, partly because neon liberatio,  the old release of nexum, had been adopted by  custom as the proper form of release in matters  which had nothing to do with the original nexum,  namely in the release of judgment-debts and of  legacies per damnationem^. One pecuUarity men-  tioned by Gains in the release of such legacies  seems altogether fatal to the theory that mandpium  was but a species of the genus nexum. Gains says  that nexi liberatio could be used only for legacies of  things measured by weight. Such things were the  sole objects of the true nexum, whereas res mancijri  included land and cattle. Therefore if mandpivm  were only a species of nexum we should certainly  find nexi liberatio applying to legacies of res mandpi,  but this, as Gaius shows, was not the case.   The view that nexum was the parent gestum per   1 Varro, L. L. vii. 105. ' Festus, p. 165, s. u. nexum.   s Gai. III. 173-5.     Digitized by Microsoft®     NBXVM DISTINCT FROM MANCIPIVM. 25   aes et libram, and that mancipium was the name  given later to one particular form of nexum, is worth  examining at some length, because it is widely  accepted S and because it fundamentally affects our  opinion concerning the early history of an important  contract. Bechmann^ thinks it more reasonable to  suppose that nexum narrowed from a general to a  specific conception. But it is scarcely conceivable  that nexum should have had the vague generic  meaning of quodcumque per aes et libram geritur^  when it was still a living mode of contract, and the  technical meaning of obligatio per aes et libram  when such a contractual form no longer existed.  What seems far more likely is that nexum had a  technical meaning until it ceased to be practised  subsequently to the Lex Poetilia, and that its loose  meaning was introduced in the later Republic, partly  to denote the binding force of any contract*, partly  as a convenient expression for any transaction per  aes et libram'^. Even in Cicero we find the word  nexum used chiefly with a view to elegance of style"  in places where mandpatio would have been a  clumsy word and where' there could be no doubt as  to the real meaning. But when Cicero is writing  history, he uses nexum in its old technical sense and  actually tells us that it had become obsolete'.   1 See Beohmann, Kauf, i. p. 130 ; Clark, E. R. L. § 22.   2 lb. p. 131. " Varro, I. c. — Pestus, s.u. nexum.  ■» Cf. ''nexu uenditi " in Ulpian, 12 Dig. 6. 26. 7.   5 Cio. de Or. iii. 40. 159.   6 Har. Eesp. vii. 14; ad Fam. vii. 30. 2; Top. 5. 28.  ' As in pro Mur. 2; Parad. v. 1. 35.   8 de Rep. 2. 34 and cf. Liu. viii. 28. 1.   Digitized by Microsoft®     26 CONTRACTS OF THE REGAL PERIOD.   Rejecting then as untenable the notion that  neseum denoted a variety of transactions, let us  see how it originated. The most obvious way of  lending com or copper or any <other ponderable  commodity, was to weigh it out to the borrower,  who would naturally at the same time specify by  word of mouth the terms on which he accepted  the loan. In order to make the transaction binding,  an obvious precaution would be to call in witnesses,  or if the transaction took place, as it most likely  would, in the market-place, the mere publicity of the  loan would be enough. Thus it was, we may  believe, that a nexum was originally made. It was  a formless agreement necessarily accompanied by  the act of weighing and made under public super-  vision. It dealt only with commodities which could  be measured with the scales and weights, and did  not recognize the distinction between res mancipi  and res nee mancipi, — a strong argument that  neoeum and mancipium were, as above said, totally  distinct affairs. Its sanction lay in the acts of  violence which the creditor might see fit to commit  against the debtor, if payment was not performed  according to the terms of his agreement. Personal  violence was regulated by the XII Tables, in the  rules of manus iniectio, but before that time it is safe  to conjecture that any form of retaliation against the  person or property of the debtor was freely allowed.   The fixing of the number of witnesses at five',  which we find also in mancipium, is the only  modification of nexum that we know of prior to  ' Gai. III. 174.   Digitized by Microsoft®     FUNCTION OF NEXAL WITNESSES. 27   the XII Tables. Bekker^ suggests that this change  was one of the reforms of Seruius Tullius, and that  the five witnesses, by representing the five classes of  the Servian census, personified the whole people.  This is a mere conjecture, but a very plausible one.  For we are told by Dionysius^ that Seruius made  fifty enactments on the subject of Contract and  Crime, and in another passage of the same author',  we find an analogous case of a law which forbade the  exposure of a child except with the approval of five  ■ witnesses. But here a question has been raised as to  what the witnesses did. The correct answer, I  believe, is that given by Bechmann*, who maintains  that the witnesses approved the transaction as a  whole, and vouched for its being properly and fairly  performed. Huschke, on the other hand, claims that  the function of the witnesses was to superintend the  weighing of the copper, and that before the intro-  duction of coined money some such public supervision  was necessary in order to convert the raw copper  into a lawful medium of exchange^. This view  is part of Huschke's theory, that neosum had two  marked peculiarities: (1) it was a legal act per-  formed under public authority, and (2) it was the  recognised mode of measuring out copper money by  weight.   The first part of Huschke's theory may be  accepted without reserve, but the second part seems  quite untenable. We have no evidence to show  that neooum was confined to loans of money or of   1 Akt. I. 22 ff. 2 jy_ IS -J jj. 15.   * Kauf, I. p. 90. ^ Nex-um, p. 16 ff.   Digitized by Microsoft®     28 CONTRACTS OF THE REGAL PERIOD.   copper. Indeed we gather from a passage of Cicero  that far, corn, may have been the earliest object of  neooum', while Gains states that anything measurable  by weight could be dealt with by nexi solutio'. No  inference in favour of Huschke's theory can be  drawn from the name negotium per aes et lihram,  for this phrase obviously dates from the more recent  times when the ceremony had only a formal signifi-  cance, and when the aes {rauduscidum) was merely  struck against the scales. If then we reject the  second part of Huschke's theory, and admit, as ,  we certainly should, that nescum could deal with any  ponderable commodity, it is evident that his whole  view as to the function of the witnesses must  collapse also. The very notion of turning copper  from merchandise into legal tender is far too subtle  to have ever occurred to the minds of the early  Romans. As Bechmann* rightly remarks, the  original object of the State in making coin was  not to create an authorised medium of exchange,  but simply to warrant the weight and fineness of  the medium most generally used. The view of  Huschke seems therefore a complete anachronism.  There is also another interpretation of neivum  radically different from the one here advocated, and  formerly given by some authorities^ but which  has few if any supporters among modern jurists.  This view was founded upon a loosely expressed  remark of Varro's in which nexus is defined as   1 Cio. de Leg. Agr. ii. 30. 83. ^ in. 175. » Xauf, i. p. 87.  * See Sell, Soheurl, Niebuhr, Christiansen, Puohta, quoted in  Danz, BSm. RG. ii. 25.     Digitized by Microsoft®     NEXVM A LOAN BY WEIGHT. 29   a freeman who gives himself into slavery for a debt  which he owes\ The inference drawn from this  remark was that the debtor's body, not the creditor's  money, was the object of nexvm, and that a debtor  who sold himself by mancipium as a pledge for the  repayment of a loan was said to make a newum'K  Such a theory does not however harmonize with the  facts. The evidence is entirely opposed to it, for  Varro's statement, as will be seen later on, admits of  quite another meaning. Neither nexum nor Tnan-  cipium is ever found practised by a man upon  his own person. Nor could nexum have applied to a  debtor's person, for the idea of treating a debtor like  a res mmicipi or like a thing quod pundere numero  C07istat, is absurd. Again, if neccu/m = mancipium, the  conveyance of the debtor's body as a pledge must  have taken effect as soon as the money was lent,  therefore (1) by thus becoming nexus he must have  been in mancipio long before a default could occur,  which is too strange to be believed, and (2) being in  mancipio he must have been capita deminutus^, which  Quintilian expressly states that no nexal debtor ever  was*. Clearly then mancipium was under no cir-  cumstances a factor in nexum,.   Thus it would seem that the theory which  regards nexum as a loan of raw copper or other goods  measurable by weight, is the one beset with fewest  difficulties. Such goods correspond pretty nearly  to what in the later law were called res fungihiles.   1 Varro, L. L. vii. 105 and see page 52.   2 nexum inire, Liu. vii. 19. 5.   " Paul. Diao. p. 70, s. u. deminutus. * Decl. 311.   Digitized by Microsoft®     30 CONTRACTS OF THE REGAL PERIOD.   The borrower was not required to return the very  same thing, but an equal quantity of the same kind  of thing. And this explains why neancm, the first  genuine contract of the Eoman Law, should have  received such ample protection. A tool or a beast of  burden could be lent with but little risk, for either  could be easily identified ; but the loan of corn or of  metal would have been attended with very great  risk, had not the law been careful to ensure the  publicity of every such transaction. lusiurandum  or sponsio might no doubt have been used for  making loans, but they both lacked the great  advantage of accurate measurement, which necmm  owed to its public character. It was the presence of  witnesses which raised neocum from a formless loan  into a contract of loan.   This general sketch of the original neooum is  all that can be given with certainty. The details  of the picture cannot be filled in, unless we draw  upon our imagination. We do not know what verbal  agreement passed between the borrower and the  lender, though it is fairly certain that payment  of interest on the loan might be made a part of the  contract. We cannot even be quite sure whether the  scale-holder (libripens) was an official, as some have  suggested, or a mere assistants   Our description of the contract may then be  briefly recapitulated as follows:   The form consisted of the weighing out and  delivery to the borrower of goods measurable by  weight, in the presence of witnesses, (five in number,  ' See page 52.     Digitized by Microsoft®     EARLY FORM OF NEXVM. 31   probably since the time of Seruius Tullius), whose  attendance ensured the proper performance of the  ceremony. The ownership of the particular goods  passed to the borrower, who was merely bound to  return an equal quantity of the same kind of goods,  but the terms of each contract were approximately  fixed by a verbal agreement uttered at the time.   The sanction consisted of the violent measures  which the creditor might choose to take against a  defaulting debtor. Before the XII Tables there  .seems to have been no limit to the creditor's power  of punishment. Any violence against the debtor  was approved by custom and justified by the noto-  riety of the transaction, so that self-help was more  easily exercised and probably more severe in the case  of nexum than in that of any other agreement.   The release (neooi solutio) was a ceremony pre-  cisely similar to that of the neocum itself, the amount  of the loan being weighed and delivered to the lender,  in presence of witnesses '.   Art. 4. We have now examined three methods  by which a binding promise could be made in the  earliest period of the Roman Law. The next  question which confronts us is whether there existed  at that time any other method. The other forms of  contract, besides those already described, which are  found existing at the period of the XII Tables, were  fiducia, lex mancipi, uadimoniv/m, and dotis dictio.  Did any of these have their origin before this time ?  Fiducia is doubtful, and lex mancipi, as we shall  see, owed its existence to an important provision  1 Gai. III. 174.   Digitized by Microsoft®     32 CONTRACTS OF THE REGAL PERIOD.   of that code. As to the origin of uadimonium,  we cannot fee certain, but judging from a passage  in Gellius* we are almost forced to the conclusion  that uadimonium also was a creation of the XII  Tables. Gellius speaks of " uades et subuades et XX V  asses et taliones...omnisque ilia XII Tabularum  antiquitas." We know that twenty-five asses was the  fine imposed by the XII Tables for cutting down  another man's tree, therefore it would seem from the  context that uades had also been introduced by that  code. The point cannot be settled, but since the  XII Tables were at any rate the first enactments  on the subject of which anything is known, we may  discuss uadimonium in treating of the next period.  The only contract of which the remote antiquity is  beyond dispute is the dotis dictio.   Art. 0. DOTIS DICTIO. Dionysius^ informs us  that in the earliest times a dowry was given with  daughters on their marriage, and that if the father  could not afford this expense his clients were bound  to contribute. Hence it is clear not only that dos  existed from very early times, but that custom even  in remote antiquity had fenced it about with strict  rules. From Ulpian' we know that dos could be  bestowed either by dotis dictio, dotis promissio, or  dotis datio. The promissio was a promise by stipu-  lation, and the datio was the transfer by mancipation  or tradition of the property constituting the dowry ;  so that these two are easy to understand. But dotis  dictio is an obscure subject. It is diflBcult to know  whence it acquired its binding force as a contract,  1 xTi. 10. 8. 2 II. 10. 3 Reg. vi. 1.     Digitized by Microsoft®     THEORIES AS TO DOTIS DICTIO. 33   since in form it was unlike all other contracts  with which we are acquainted. Its antiquity is  evidenced not only by this peculiarity of form, but  also by a passage in the Theodosian Code which  speaks of dotis dictio as conforming with the ancient  law'. An illustration occurs in Terence^ where the  father says, "Dos, Pamphile, est decern talenta,"  and Pamphilus, the future son-in-law, replies,  " Accipio " ; but we need not conclude that the  transaction was always formal, for the above Code°,  in permitting the use of any form, seems rather  to be restating the old law than making a new  enactment. A further peculiarity, stated by Ulpian*  and by Gaius^ was that dotis dictio could be validly  used only by the bride, by her father or cognates on  the father's side, or by a debtor of the bride acting  with her authority. Dictio is a significant word, for  Ulpian'' distinguishes between dictum and promis-  sum, the former, he says, being a mere statement,  the latter a binding promise. This distinction should  doubtless be applied in the present case, since dotis  dictio and dotis promissio were clearly different.  The following theories seem to be erroneous :  (a) Von Meykow' holds that dictio was adopted  as a form of promise instead of sponsio for this family  affair of dos, in order not to hurt the feelings of the  biide and of her kinsmen by appearing to question  their bona fides. That theory would be a plausible  explanation, if dictio could ever have meant a   1 C. Th. 3. 12. 3. 2 And. 5. 4. 48. ■' 3. 13. 4.   * Reg. VI. 2. ^ Epit. ii. 9. 3. « 21 Dig. 1. 19.   ' Diet. d. Rom. Brautg. p. 5 ff.   B. E. 3   Digitized by Microsoft®     34 CONTRACTS OF THE REGAL PERIOD.   promise, but from what Ulpian says, this can hardly  be admitted.   (6) Bechmann^ again, connects dotis dictio with  the ceremony otsponsio at the betrothal of a daughter.  The dos, he thinks, was promised by a sponsio made  at the betrothal, so that the peculiar form known as  dotis dictio was originally nothing more than the  specification of a dowry already promised. The dotis  dictio would therefore have been at first a mere  pactum adiectam, which was made actionable in  later times, while still preserving its ancient form.  The objection to this theory is that it lacks evidence :  indeed the only passage (that of Terence) in which  dotis dictio is presented to us with a context goes to  show that this contract was in no way connected  with the act of betrothal.   (c) Another explanation is given by Czylharz^  i.e. that dotis dictio was a formal contract. His  view is based on the scholia attached to the  passage of Terence, which say of the bridegroom's  answer : " ille nisi diodsset ' accipio ' dos non esset."  Czylharz therefore looks upon the contract as an  inverted stipulation. The offer of a promise was  made by the promisor, and when accepted by the  promisee became a contract. Though such a process  is quite in harmony with modern notions of Contract,  it would have been a complete anomaly at Rome.  And we cannot believe that, if acceptance by the  promisee had been a necessary part of the dotis  dictio, we should not have been so informed by  Gaius, when he has been so careful to impress  1 ESm. Dotalrecht. 2 Abt. p. 103. 2 Z. f. B. G. vn. 243.     Digitized by Microsoft®     THEORY OF DANZ. 35   upon US that the dotis dictio could be made nulla  interrogatione praecedente. Thus the view of  Czylharz besides being in itself improbable is  almost entirely unsupported by evidence. Even the  scholiast on Terence need not necessarily mean that  " accipio " was an indispensable part of the trans-  action. He may merely have meant that the bride-  groom at this juncture could decline the proffered  dos if he chose, and this interpretation is borne out  by lulianus" and Marcellus^ who give formulae  of dotis dictio without any words of acceptance.   A satisfactory solution of the problem seems  to have been found by Danz'. He looks upon  dos as having been due from the father or male  ascendants of the bride as an officium, pietatis*,  and quotes passages from the classical writers in  which they speak of refusing to dower a sister  or a daughter as a most shameful thing'. The  source of the obligation lay in this relationship  to the bride, not in any binding effect of the dotis  dictio itself. But in order that the obligation might  be actionable its amount had to be fixed, and this  was just what the dictio accomplished. It was an  acknowledgment of the debt which custom had  decreed that the bride's family must pay to the  bridegroom. In this respect the dos was precisely  analogous to the debt of service which a freedman  owed as an officium to bis patron, and which he  acknowledged by the iurata operarum promissio. The  dos and the operae were both officia pietatis, but   1 23 Dig. 3. 44. ^ 23 Dig. 3. 59. ' Rom. BG. 1. 163.   ^ See 23 Dig. 3. 2. ' piaut. Trin. 3. 2. 63 ; Cic. Quint. 31. 98.   .3—2   Digitized by Microsoft®     36 CONTEACTS OF THE REGAL PERIOD.   it became customary to specify their nature and  their quantity. In the one case this was done by an  oath, in the other by a simple declaration, and in  both cases the law gave an action to protect these  anomalous forms of agreement. What kind of  action could be brought on a dotis dictio is not  known. Voigt^ states it to have been an actio  dictae dotis, for which he even gives the formula,  but formula and action are alike purely conjectural.  We can only infer that the dotis dictio was action-  able since it constituted a valid contract. How or  when this came to pass we cannot tell.   A further advantage of Danz' theory, and one not  mentioned by him, is that it explains the capacity  of the three classes of persons by whom alone dotis  dictio could be performed. (1) The father and male  ascendants of the bride were bound to provide a dos  under penalty of ignominia^ ; (2) the bride, if sui  iuris, was bound to contribute to the support of her  husband's household for exactly the same reason';  and (3) a debtor of the bride was bound to carry  out her orders with respect to her assets in his posses-  sion, and supposing her whole fortune to have con-  sisted of a debt due to her, it is evident that  a dotis dictio by the debtor was the only way in  which this fortune could be settled as a dos at all.  Thus the hypothesis that the dos was a debt  morally due from the father of the bride, or from  the bride herself, whenever a marriage took place,  completely explains the curious limitation with   1 XII Taf. II. § 123. 2 24 Dig. 3. 1. 3 Cio. Top. i. 23.   Digitized by Microsoft®     FORM OF DOTIS DICTIO. 37   regard to the parties who could perform dotis  dictio. The nature of the transaction may then be  summarized as follows :   Its form was an oral declaration on the part  of (1) the bride's father or male cognates, (2) of the  bride herself, or (3) of a debtor of the bride, setting  forth the nature and amount of the property which  he or she meant to bestow as dowry, and spoken  in the presence of the bridegroom. Land as well as  moveables could be settled in this manner'. No  particular formula was necessary. The bridegroom  might, if he liked, express himself satisfied with the  dos so specified ; but his acceptance does not seem  to have been an essential feature of the proceeding.  Most probably he did not have to speak at all.   Its sanction does not appear, though we may be  sure that there was some action to compel perform-  ance of the promise. This action, whatever it may  have been, could of course be brought by the bride's  husband against the maker of the dotis dictio.  Perhaps in the earliest times the sanction was a  purely religious one.   Art. 6. Now that we have seen the various  ways in which a binding contract could be made in  the earliest period of Eoman history, we may con-  sider briefly the general characteristics of that primi-  tive contractual system. The first striking point  is that all the contracts hitherto mentioned are  unilateral : the promisor alone was bound, and he  was not entitled, in virtue of the contract, to  any counterperformance on the part of the promisee.  1 Gai. Ep. 3. 9.   Digitized by Microsoft®     38 CONTRACTS OF THE REGAL PERIOD.   The second point is that the consent of the parties  was not sufficient to bind them. Over and above  that consent the agreement between them was  required to bear the stamp of popular or divine  approval. Even in dotis dictio, as we have just seen,  a simple declaration uttered by the promisor was  invested with the force of a contract merely because  the substance of that declaration was a transfer of  property approved and required by public opinion.  Thirdly we notice that the intention of the con-  tracting parties was verbally expressed, but that the  language employed was not originally of any impor-  tance (except in the one case of sponsio), provided the  intention was clearly conveyed. We must therefore  modify the statement so commonly made that the  earliest known contracts were couched in a particular  form of words. For how did each of these particular  forms originate and acquire the shape in which  we afterwards find it ? By having long been used  to express agreements which were binding though  their language was informal, and by having thus  gradually obtained a technical significance. Conse-  quently the formal stage was not the earliest stage  of Contract. The most primitive contract of all was  not an agreement clothed with a form, but an agree-  ment clothed with the approval of Church or  State.     Digitized by Microsoft®     CHAPTER III.   THE TWELVE TABLES.   Art. 1. The causes leading to the enactment  of the great Reform Bill known as the XII Tables  were chiefly social, and the indefinite state of the  law was the grievance which called most loudly  for a remedy. Contracts and conveyances were but  little respected, the powers of the nexal creditor  were sorely abused, and legal procedure in general  was most uncertain. Yet more than all else the law  of torts and crimes needed radical reform : so that  though we possess but few actual fragments of the  XII Tables we have enough to tell us that very  little space was devoted to reforms in the law  of Contract. This fact ought not to surprise us,  knowing as we do that commerce was still in a  very backward state.   We hear nothing of any provision in the  XII Tables with respect to sponsio, but we know  from Cicero that iusiurandwn was recognised and  enforced'. Botis dictio was not mentioned, so far  as we can discover. A new form, the lex mancipi,   1 Off. HI, 31. 111..  Digitized by Microsoft®     40 THE TWELVE TABLES.   was created by one provision of this code, though  its creation was not apparently intended by the  Decemvirs, but was rather the result of juristic  interpretation. Vadimoniitm,, a contract which we  have not yet examined, was either created or  considerably modified by the XII Tables, and con-  stituted the earliest form of suretyship.   As the hard condition of nexal debtors was one  of the evils which led most directly to the secession  of the plebs and to the consequent enactment of the  new code, we should naturally expect to find laws  passed for their protection. Accordingly it is with  nexum that the contractual clauses of the XII Tables  are principally concerned.   Art. 2. NEXVM. I. The first provision as to  this contract was embodied in the famous words  which Festus has transmitted to us: CVM nexym   FACIET MANCIPIVMQVE VTI LINGVA NVNCVPASSIT   ITA ivs ESTO^ This was equivalent to saying that  the language used by the party making a nexum  was to be strictly followed in determining what  his rights and liabilities should be. The fact that  such a declaratory law was needed discloses two  features of the primitive nexum. We can see  (1) that the act of weighing, not the words which  accompanied that act, was the essence of the original  transaction, so that the scales must have been  used actually, and not symbolically as they were  in later days : (2) that the terms of a nexal loan  must often have been disobeyed; if, for instance,   ' Festus, p. 171, s.u. nuncupata pecunia.     Digitized by Microsoft®     CHANGES IN NEXVM. 41   the debtor had agreed to pay at the end of one  year, it might happen that a harsh creditor would  enforce payment at the end of six months. This  shows that the people were not feared as witnesses  to the same extent as were the gods who presided  over msiurandum and sponsio. The fact of the  loan was proved beyond question by the witnesses  present, but there was evidently no sacred virtue in  the words which went with the loan, and these were  not therefore binding simply because spoken in the  people's hearing. This defect was what the XII  Tables aimed at correcting. They thenceforth  placed the verbal terms of nexum on as strong a  footing as the words of sponsio. Conditions as to  the amount of interest payable, the date of maturity  of the loan, the security to be given by the debtor,  could all now be inserted in the verbal nuncupatio.  And still more important was the fact that the sum  or amount of the loan itself could be verbally  announced at the ceremony, so that if the debtor  said " I hereby receive and am bound to repay  fifty asses," this speech was as binding upon him as  if the fifty asses had been actually weighed out to him  in copper. As long as the money or corn was really  weighed in the scales, nexum continued to be a  natural and material method of loan ; but when by  the introduction of coined money it became possible  to count instead of weighing a given quantity of  copper, then nexum tended to become an artificial  and symbolical operation. The reason obviously is  that counting is far more simple than weighing.  Thus when a loan of 100 asses was being made.   Digitized by Microsoft®     42 THE TWELVE TABLES.   it became customary to name this sum in the  nuncupatio without weighing it at all. The scales  and witnesses appeared as before, but the scales  were not used. The borrower, instead of taking 100  asses out of the scale-pan, simply struck it with a  piece of copper so as to conform with the outward  semblance of the transaction. Though the weighing  had been dispensed with, yet by this rule of the  XII Tables he was as much bound in the sum of  100 asses as though they had actually been weighed  out to him. Hence the important efifect of the  clause which I have quoted. Given a proper coinage  that clause transformed the loan of money into  a datio imaginana and the release of such a loan  into an imaginana solutio. The outward form of  neacum remained the same, but the actual process  was greatly simplified. This change was doubtless  not intended when the rule was made by the  Decemvirs. It was the result of a more or less  unconscious and probably gradual development.  The genuine weighing and the fictitious weighing  doubtless existed side by side. But it seems fairly  certain that the introduction of coined money was  another of the Decemviral reforms', and if so, we may  assume that nexum changed from a ceremony  perfoi-med with the scales into one performed with  copper and scales (negotium per aes et libram) not  long after the Decemviral legislation.   II. Another important provision relating to  nescum modified the harsh remedy hitherto appUed  by the creditor against the delinquent debtor.  1 Mommsen, Som. Munzw. p. 175.     Digitized by Microsoft®     RESTRICTIONS ON POWER OF CREDITOR. 43   The words of the XII Tables have been fortu-  nately preserved by Gellius', and run as follows:   AERIS CONFESSI REBVSQVE IVRE IVDICATIS XXX DIES  IVSTI SVNTO. POST DEINDE MANVS INIEGTIO ESTO.  IN IVS DVCITO. NI IVDICATVM FACIT AVT QVIS ENDO  EO IN IVRE VINDICIT SECVM DVCITO VINCITO AVT  NERVO AVT COMPEDIBVS XV PONDO NE MINORE AVT  SI VOLET MAIORE VINCITO. SI VOLET SVO VIVITO.  NI SVO VIVIT QVI EVM VINCTVM HABEBIT LIBRAS  FARRIS ENDO DIES DATO. SI VOLET PLVS DATO.   There are two knotty points in the above passage.  (1) What is the exact distinction between ac-  knowledged money debts {aes confessum) and judg-  ments obtained by regular process of Law (res iure  iudicatae) ? (2) To what class of delinquents did  the punishment apply ?   (1) It can hardly be doubted^ that aes con-  fessuTn included a debt contracted by nexum, as  well as any other kind of debt the existence of which  was not denied by the debtor. For example, a  debt incurred by formless agreement or by sponsio  would be an instance of aes confessum, provided  the debtor admitted his liability. But in nexum  this liability had already been admitted solemnly  and before witnesses; to deny the existence of a  nexal debt was impossible. Therefore aes confes-  sum seems to be a term quite applicable to a  debt contracted by nexum. The words aeris nexi  were probably not used in the context because  aeris confessi had a wider meaning, and this law   1 XX. 1. 43. ^ Ihering, G. d. R. B. i. 156, note.   Digitized by Microsoft®     44 THE TWELVE TABLES.   was apparently intended to cover much more than  the one case of nexal indebtedness.   The other class of debts here described as res  iure iudicatae are no donbt judgment-debts. Where  damages had been judicially awarded to one of the  parties to an action, some means had to be provided  of compelling payment from the other party. The  executive in those early times was too weak to  enforce its decisions, and self-help, as we have seen,  was the usual resource of aggrieved persons. The  only way in which the law could assist judgment  creditors was by declaring what extent of retalia-  tion they might lawfully take. And this brings us  to the second question :   (2) In what cases was the above mentioned  manus iniectio to be exercised ? Voigt^ remarks  that the XII Tables never mention manus iniectio  as being a means of punishing default in a case of  nexum. He then proceeds to state that the remedy  for nexum was an actio pecuniae nuncupatae. Not  only is this statement purely fanciful, as there is  no mention of actio pecimiae nuncupatae in any of  our authorities, but Voigt has surely ignored the  evidence before him. Admitting, as we must, that  nexum is included among the cases named at the  beginning of the above clause, we can scarcely  avoid the further conclusion long ago reached by  Huschke that the rest of the clause, with its 30  days of grace, manus iniectio, ductio in ius, and all  the consequences of disregarding the iudicatum, is a  description of the punishment to which a breach of  1 XII Taf, I. 169.     Digitized by Microsoft®     JUDICIAL RECOGNITION OF NEXVM. 45   nexum might lead, as well as of that annexed to the  other kinds of aes confessum and to res iure iudi-  catae. The whole clause is one continuous state-  ment, and to hold that the latter part of it, beginning  at Ni IVDICATVM FACIT, provides a penalty solely  for the case of judgment-debts, seems a very  strained and unnatural interpretation. Why ex-  plain iudicatum as referring only to judgment  indebtedness ? Just before it in the text we find  the direction IN ivs DVCITO, so that a nexal debtor  after manus iniectio evidently had to be brought  into court. The precaution was probably a new  restraint upon the violence of creditors, in order  that the justice of their claims and the propriety of  manus iniectio might be judicially determined. But  if a judge had to pronounce upon the validity of  such proceedings, surely his decree might be de-  scribed by the term iudicatum, as found in the  above passage. It is no answer to say that the  nature of aes confessum precludes the possibility of  a judicial decision, and that therefore iudicatum  can only refer to a res iure iudicata, that is, a  judgment-debt. For in spite of this alleged dis-  tinction we find here that debtors of aes confessum  and judgment-debtors were treated in exactly the  same way. Each of them was at first seized by his  creditor and brought into court. Now why should  this have been necessary in the case of a iudicatus  more than in that of a nexus 1 For a judgment-  debt seems to need judicial recognition just as  little as a nexal debt. And yet we find that ductio  in ius was prescribed in both cases. The only     Digitized by Microsoft®     46 THE TWELVE TABLES.   rational way of explaining the difficulty, seems  to he to take iudicatum in the sense not of a  judgment-debt but of a judicial decree, and to  translate the passage as follows: "Let the creditor  bring the debtor into court. Unless the debtor  obeys the decree of the court or finds meanwhile  a champion of his cause^ in the court, let the  creditor lead him off into private custody, and  fetter him" etc. etc. Thus the ductio in ius, the  iudicatum, the domum ductio, and the directions as  to the right kind of fetters and the proper quantity  of food, must all have applied equally to aes con-  fessum (including nexum) and to res iure iudicatae.  This view is confirmed by the passage in which  Livy '^ describes the abolition of the severe penalties  of nexum,. The bill by which this was done or-  dained, so Livy tells us, " nequis, nisi qui noxam  meruisset, donee poenam lueret, in convpedibus aut in  neruo teneretur . . .ita nexi soluti, cautumque in pos-  teru/m ne necterentur." This law, the Lex Poetilia,  was evidently passed for the relief of nexi, and  relief was given by abolishing the use of compedes  et neruum. Now as this was the very description of  fetters given by the XII Tables in our text, it  seems certain that the language of the Lex Poetilia  referred to this clause of the Decemviral Code.  Hence it follows that the punishment provided by  this code was nexum, which is the view already  deduced from the words of the XII Tables them-  selves. The contrary interpretation, which is there-   1 PestuB, p. 376, s.u. uindex. ^ viii. 28.     Digitized by Microsoft®     FURTHER RESTRICTIONS. 47   fore probably erroneous, has strong supporters in  Muirhead^ and Voigt^   But even though a iudicatum was thus necessary  in order to permit the nexal creditor to lead off his  debtor into custody, we may agree with Muirhead that  the preliminary manus iniectio was within the power  of the nexal creditor without any judicial proceed-  ings. The nexum being a public transaction, a debt  thereby contracted was so notorious as to justify  summary procedure. Before the XII Tables, when  self-help was subject to no regulations that we  can discover, this summary procedure could be  carried to all lengths in the way of severity and  cruelty. But when the XII Tables had interposed  the ductio in ius for the protection of nexal debtors,  no other precaution against injustice was needful,  and a preliminary trial before the manus iniectio  would have been so superfluous that we cannot  believe it to have ever been required.   The elaborate provisions for the punishment of  debtors did not end with the text which has come  down to us and which has been quoted above.  The substance, though not the actual wording, of  the remainder of the law has fortunately been  preserved by Gellius'. As far as our text goes,  the proceedings consist of (1) manus iniectio, the  arrest or seizure of the debtor by the creditor;  (2) ductio in ius, the bringing of the debtor into  court, that is, before the praetor or consid ; (3) iudi-  catum, a decree of the praetor recognising the  creditor's claim as just and the proceedings as  ' B. L. p. 158. ^ XII Taf. i. 629. ' xx. 1. 45-52.     Digitized by Microsoft®     48 THE TWELVE TABLES.   properly taken. At this stage a uindex may step  in on the debtor's behalf. What was the exact  nature of his intervention we cannot know, but from  Festus' definition he seems to have been a friend of  the debtor, who denied the justice of his arrest and  stood up in his defence. By the XII Tables he had  to be of the same class as the debtor whom he  defended^ and if his assertions proved to be false he  was liable to a heavy fine^. If on the other hand  his defence was satisfactory to the Court, further  proceedings were doubtless stayed. But if no satis-  faction was given either by the uindex or by the  debtor, then (4) the creditor was entitled to lead  home his debtor in bondage, though not in slavery,  and to bind him with cords or with shackles of not  less than 15 lbs. weight. Meanwhile the law as-  sumed that the debtor would prefer to live upon his  own resources. This shows that a nexal debtor was  not always a bankrupt, and that it must often have  been the will and not the power to pay which was  wanting in his case. As there existed in those days  no means of attaching a man's property, the only  alternative was to attach his person. If however  the debtor was really a ruined man and could not  afford to support himself, the law bade the creditor  to feed him on the barest diet by giving him a pound  of corn a day, or more at the creditor's option.   Here our textual information leaves off and we   have to depend on Gellius' account. He says^   that this stage of domum duetto and uinctio lasted   sixty days, and that during that period a com-   ' Gell. XVI. 10. 5. 2 Festus, s. u. uindex. ' xx. 1. 46.     Digitized by Microsoft®     THEORIES AS TO NEXAL PENALTY. 49   promise might be arranged which would stay further  proceedings. Meanwhile (5) on three successive  nundinae, or market-days, the debtor had to be  brought into the comitiuni before the praetor, and  there the amount of his debt was publicly pro-  claimed. This was a second precaution intended to  protect the debtor by giving thorough publicity to  the whole affair. At last (6) on the third market-  day, and at the expiration of the sixty days, the full  measure of punishment was meted out to the un-  fortunate delinquent: he was addictus^ by the praetor  to his creditor, and thus passed from temporary  detention into permanent slavery.   The extreme penalty is said by Gellius to have  been either death or foreign slavery, and the words  in which the former was enacted are given by him  as follows: Tertiis nvndinis partis secanto. Si   PLVS MINVSVE SECVERVNT SE FRAVDE ESTO. The   meaning of these words has been much disputed,  for ever since the beginning of the century many  attempts have been made to soften their literal  sense. We should a priori translate them thus :  " On the third market-day let the creditors cut up  and divide the debtor's body. If any should cut  more or less than his proper share, let him not  suffer on that account." That this is how the  ancients understood the passage, we know from the  testimony of Gellius, Quintilian^ and Tertullian^  But Gellius and Dio Cassius, though they had no  doubts as to the meaning of the law, both say that   1 Gell. XX. 1. 51. ^ Inst. or. iii. 6. 64. ^ Apol. 4.   B. E. 4   Digitized by Microsoft®     50 THE TWELVE TABLES.   this barbarous practice of cutting a debtor in pieces  was never carried out, so far as they knew, even in  ancient times'. The law was therefore practically a  dead letter. Some commentators, whose views are  ably summed up by Muirhead'', make the most  of this admission, and hold that the interpretation  of "partis secanto" should be entirely different.  They regard the division of the debtor's body  between the creditors as too shocking a practice  to have ever existed at Rome, and they take  Secare to refer (as in the later phrase bonorwm sectio)  to a sale and division of the debtor's property.  In the event of his property being insuflScient  to cover the debt, the debtor would then, as  Gellius informs us, be sold into slavery "beyond  the Tiber." The objections to this theory have  been well pointed out by Niebuhr^. Not only is it  opposed to all the ancient authorities, who knew at  least the traditional meaning of the XII Tables as  handed down to them through many generations,  but it also conflicts with a well recognised principle  of early Law. That principle was that the goods of  a debtor were not responsible for his debts. His  person might be made to suffer, but his property  could not be touched. As we have seen, it was by  no means unusual for a nexal debtor to support  himself while in bondage. This can only be ex-  plained on the supposition that neither his property  nor his earnings were attachable by the creditor.  It is this exemption of property which accounts for '   > Gell. XX. 1. 52. Dio Cass, fragm. 17. 8.   2 R. Law, p. 208—9. ^ B. G. i. 630.     Digitized by Microsoft®     EXTREME PENALTY WAS DEATH. 51   the severity of the nexal penalties. Now a sale and  partition of the debtor's goods would have been  quite inconsistent with the whole system of personal  execution so plainly set before us in the rest of the  law, whereas the killing of the debtor was but a  fitting climax to his cruel fate. The inhumanity of  the proceeding is not likely to have been perceived by  men who tolerated such barbarities as the lex talionis  and the killing of a son by his paterfamilias. When  our classical authorities express their astonishment  at the cruelty of the law, we must remember that  they lived in a gentler age, in which the powers  even of the paterfamilias were much curtailed ; and  when they confess that they never knew of an  instance in which the law was literally executed, we  may discount their testimony by recollecting that  the nexal penalties of the XII Tables were abolished  centuries before they wrote.   Comparative jurisprudence furnishes another  argument in favour of accepting the literal sense of  the phrase "partis secanto." Kohler^ has collected  from different quarters various instances of customs  which closely correspond with this harsh treatment  of the Roman debtor. Unless therefore we dis-  regard analogy, probability, and the whole of the  classical evidence, we must clearly take the words  literally and understand that the creditor could  choose between selling his debtor into slavery  "beyond the Tiber," or putting him to death.  In the latter case, if there were more than one   ' Shakesp. v. dem Forum der Jurisp.   4—2  Digitized by Microsoft®     52 THE TWELVE TABLES.   creditor, they might cut up the body and each  carry off a piece.   III. There is a third clause of the XII Tables  in which neim/m. is mentioned, but it does not alter  the form of the contract. As far as we can make  out, it simply declares that certain persons mys-  teriously described as forcti et sanates shall have  an equal right to the advantages of neaymn\   IV. Lastly there is a clause of the XII Tables  intended to secure truthful testimony, that most  essential safeguard to Tieocum: Qui SE SIEEIT tes-   TARIER LIBRIPENSVE PVERIT NI TESTIMONIVM FATI-  ATVR IMPROBVS INTESTABILISQVE ESTO. That is,   whoever had been testis or libripens at the perform-  ance of a nexum or mancipiwm was bound to give  his testimony as to the fact of the transaction  or as to its terms under penalty of permanent  disqualification. This passage goes to show what  we also gather from other authorities ^ that the  libripens was a mere witness and not as some  have supposed a public official. The phrase "qui  libripens fuerit" would imply that any citizen might  fill the position ; and since we find that the libripens  was treated like any other witness it seems clear  that he could not have been a public personage.   We are now able to understand the meaning of  Varro's remark : " liber qui suas operas in seruitutem  pro pecwnia quam debet dat dum solueret nexus  uocatur." This merely means that a man who  had contracted a neooum, if unable to repay the   ^ See Pestus s. u. sanates, Bruns Font. p. 364.  2 Gai. II. 107 ; Ulp. Eeg. xx. 7.     Digitized by Microsoft®     RESULTS OF LEGISLATION. 53   loan and therefore subject to an addictio, was  obliged to serve like a slave, and retained the  epithet of nexus till the debt was paid.   On the whole then the legislation of the XII  Tables produced two results:   (1) By increasing the importance of the verbal  part of the ceremony it increased the flexibility of  the contract, and eventually changed it from a real  into a symbolical transaction. The culminating  point of the change was reached when the money  constituting the loan was not weighed out, but  merely named in the nuncupatio, while the borrower  struck the scale-pan with a piece of copper.   (2) By fixing certain limits to the violence of  the creditor it softened the hardships endured by  the nexal debtor. Though the extreme penalty of  death was finally permitted, yet this could not be  inflicted till the debtor had had many opportunities  and ample time to clear himself   The formula of neooum having now acquired  great importance, its wording was doubtless soon  reduced to a definite shape running somewhat as  follows : " Quod ego tibi M lihras hoc aere aeneaque  libra dedi, eas tu 7nihi...post annum... cum semissario  foenore. . .dare damnas esto." This is the formula  adopted by Huschke^ and modified by Rudorff.  The words "damnas esto" appear to be wrongly  rejected by Voigt, who disregards the analogy of  the solutio though that seems our safest guide.   The formula of nsad solutio is given by Gaius^ as  follows, though Karlowa's reading differs consider-  1 Nexum, p. 49, etc. ^ iii. 174.   Digitized by Microsoft®     54 THE TWELVE TABLES.   ably from that of Huschke: "Quod ego tihi tot  mill'ihus condemmatus sum, me eo nomine a te soluo  ' liberoque hoc aere aeneaque libra: hanc tibi libram  primam postremximque expendo secunduTn legem pvh-  licam."   Art. 3. The XII Tables did not, as far as we  know, contain any clauses affecting sponsio or dotis  dictio. The existence of those forms at such an  early period has to be inferred from other sources,  and we have seen that there is reason to assert  their great antiquity, which the silence of the  XII Tables cannot disprove. lusiurandum is known  to have been approved by the XII Tables', but to  what extent we cannot tell. We may therefore  at once proceed to examine one of the most impor-  tant innovations of the decemviral Code, namely  the contract which despite its ambiguous name is  known as the lex mancipi.   Art. 4. Lex mancipi. This form, as its  name indicates, was a covenant annexed to the  transaction known as mandpiMm (later as mMnd-  patio). Let us see first what mancipium was.  Ulpian^ says that it was the mode of transferring  property in res mancipi. Gains describes its use  shortly as a fictitious sale', "imaginaria uenditio,"  and states that it could only be performed between  Roman citizens, and applied only to res mancipi*.  He describes the ceremony thus : — The parties meet  in the presence of five witnesses and of a person  (called libripens), who holds a pair of scales. The   1 Cic. Off. III. 31 and see above, p. 39. ^ Beg. xix. 3.   8 I. 113. ■> I. 119-20.     Digitized by Microsoft®     ORIGIN OF THE LEX MANCIPI. 55   object of the transfer Gaius supposes to be a  slave. The alienor remains passive, but the alienee,  grasping the slave, solemnly declares aloud that  he owns him by right of purchase ; then he strikes  the scales with a piece of copper, and hands the  piece to the alienor as a symbol of the price paid.  Such is our meagre evidence as to the nature  of mandpium. On this slender foundation of fact  a vast amount of controversial theory has been  heaped up. One certainty alone can be deduced  from the evidence, that Tnancipium was not origi-  nally a general mode of conveyance, as Gaius and  XJlpian found it in their day, but that it began  by being a genuine sale for cash, in which the price  paid by the alienee was weighed in the scales and  handed over to the alienor. The nuncupatio, or  declaration made by the alienee, was merely explana-  tory of his right of ownership, while the grasping of  the object by the alienee and the acceptance of the  price by the alienor were no doubt originally the  essential elements in the transfer. The words spoken  by the alienee probably had at first no more binding  effect than the words of the borrower in nexum. We  may be sure that in such a state of the law disputes  would often arise as to the terms of the sale. And  it was probably to prevent such disputes that the  XII Tables made their famous rule: CVM NExyM   FAOIET MANCIPIVMQVE VTI LINGVA NVNGVPASSIT ITA   IVS ESTO. The extraordinary emphasis (not nuncu-  passit but lingua mmcupassit) which is here laid on  the verbal part of the ceremony is very striking.  Bechmann rightly argues that it would be wrong to   Digitized by Microsoft®     56 THE TWELVE TABLES.   take this rule as referring only to the leges mandpi,  but it would seem that it was to the language as  ' distinct from the acts used in the ceremony that  the XII Tables meant to give force and validity.  The legal results which followed from seizing the  object of sale in the presence of witnesses, and  from weighing out the price to the seller, had  long since been thoroughly well recognised. What  the XII Tables now introduced was the recog-  nition of the oral statement which accompanied  those outward acts. We can hardly accept the  sense which Bechmann has given to these words^.  He notes the contrast between words and acts which  is implied in the phrase lingua nuncupassit, but he  thinks that the object of the rule was to reconcile  the language of the transaction with its real nature.  His view is based on the assumption that even  before the XII Tables mancipium had changed from  a genuine into a fictitious sale. In other words  he assumes that while the alienee professed to buy  the object with money weighed in the scales, he  really weighed no money, but simply handed to the  alienor a piece of copper, "quasi pretii loco." In  fact the imaginaria uenditio of classical times was,  according to Bechmann^, already in vogue. The  purpose of the XII Tables was therefore to confirm  this change, by declaring that the words and not the  acts of the parties should henceforth have legal  effect. It was as if this law said : " Pay no attention  to the acts of the alienee, but listen to his oral  statement. He merely delivers a piece of copper,  1 Kauf, I. p. 197. ■■' lb. p. 167.     Digitized by Microsoft®     CHANGES IN MANCIPIUM. 57   but do not imagine that this is the whole price due.  In his declaration, the alienee states that the price  is such and such. Let that be considered the real  price of the object, and let the outward ceremony be  regarded as a mere fiction." All this appears to be  a very far-fetched interpretation of lingua nuTwupassit,  and the assumption on which Bechmann has based  it seems unwarranted, for two reasons :   (1) We do not know that mancipium had  already turned into an imaginaria uenditio. There  is not one shred of evidence to prove that such a  change had occurred before the XII Tables. So far  indeed from preceding the XII Tables, the change  would seem to have been directly caused by them.  Until coin was introduced the weighing of the  purchase-money was clearly necessary. If, as there  is good reason to believe, coinage was first instituted  by the Decemvirs^, the actual weighing must have  continued till their time. If on the other hand we  suppose that coined money was a much older  institution (Cornelius Nepos de uir. ill. 7. 8. attri-  butes its invention to Seruius Tullius), so that the  actual weighing had long been dispensed with, man-  cipium could still not have been an imaginaria  uenditio, because   (2) We can imagine no way in which a sale on  credit could have been practised before the XII  Tables. How could a vendor have permitted his  property to be conveyed to a purchaser for a nominal  and fictitious price, when the nuncupatio was as yet  devoid of legal force ? After the uti lingua nuncu-  ' See above, p. 42.   Digitized by Microsoft®     58 THE TWELVE TABLES.   passit of the XII Tables the nuncupatio doubtless  specified the exact amount of the purchase-money,  and this the alienor might lawfully claim. Moreover  before the Decemviral reforms mancipium would  have transferred full ownership to the purchaser,  and the seller might have clamoured in vain for his  money, unless he had previously taken security by  means of vxidvmoniwm or sponsio. For since a well  known provision of the XII Tables' was that no  property should pass in things sold till the purchase-  money was either paid or secured, we are bound to  infer that before this the very reverse was the case/  and that property did pass even when the price had  not been paid. Such having been the early law,  how can we hold, as Bechmann does^, that the cash  payment of the purchase-money was frequently not  required, though the forms of weighing etc. were  carried out in the original manner ? He urges' that  credit, not cash, must often have been employed,  because we caimot reasonably suppose that cash  payment was possible in every case. But the force  of this argument is weakened by the fact that  mancipation was only practised to a limited extent.  Tradition was the most ordinary mode of transfer  employed in every-day life. And in a solemn affair  such as mancipium, where five witnesses and a  scale-holder had to be summoned before anything  could be done, it cannot have been a great hardship  for the purchaser to be obliged to bring his purchase-  money and weigh it on the spot. Instead of credit  purchases having been usual before the XII Tables,  1 2 Inst. 1. 41. , 2 j[^uf, I. p. 160. s ib. p. 1S8.     Digitized by Microsoft®     STATUTOPY OEIGIN OP LEX MANCIPI. 59   it seems likely that the XII Tables virtually intro-  duced them. For by enacting that no property  should pass until the price was paid or secured to  the vendor, the Decemvirs made it possible for the  conveyance and the payment of the price to be  separately performed. Mancipium was thus made to  resemble in one respect a modern deed. The vendor  who has executed a deed, before receiving the  purchase-money, has a vendor's lien upon the  property for the amount of the price still owing to  him ; and similarly the mancipio dans who had not  received the full price, retained his ownership of the  property until that full price was paid to him, or  security given for its payment.   We may therefore reject Bechmann's idea that  the words lingua nuncupassit referred principally  to the fixing of price in the nuncupatio. They  simply gave legal force to the solemn oral state-  ment made in the course of mancipium. On the  one hand they bound the seller to abide by the  price named, and to deliver the object of sale in the  condition specified by the buyer. On the other  hand they compelled the buyer to pay the full  price stated in the nuncupatio, and to carry out all  such terms of the sale as were therein expressed.  In short, every lex mancipi embodied in the 7iun-  cupatio became henceforth a binding contract.   It is natural to inquire next what kind of   agreement might constitute a lex mancipi. The   nwncupatio placed by Gaius^ in the mouth of the   purchaser runs thus: " Hunc ego hominem ex iure   I 1. 119.   Digitized by Microsoft®     60 THE TWELVE TABLES.   Quiritium meum esse aio, isque mihi emtus esto hoc  aere aeneaqiie libra." To this might no doubt be  annexed various qualifications, and these were the  leges in question. Voigt' indeed considers that  these leges might contain every conceivable pro-  vision, but Bechmann seems to come nearer to the  truth in stating that no provision conflicting with  the original conception of mancipiwm as a sale for  cash could be inserted in the nuncupatio. For  instance, Papinian states that no suspensive con-  dition could be introduced into the formula of  mancipiwm^. The reason of this obviously was that  suspensive conditions are inconsistent with the  notion of a cash sale. The purchaser could not  take the object as his own and then qualify this  proceeding by a condition rendering the ownership  doubtful, A resolutive condition was also out of the  question, for when the mancipium had transferred  the ownership and the price was paid, it would have  been absurd to say that the occurrence of some  future event would rescind the sale. The transfer  was in theory instantaneous, so that future events  could not affect it.   The following then are a few cases in which the  lex mancipi could or could not be properly used:   (a) The creation of an usufruct by reservation  could be thus made', and the formula is given to us  by Paulus : " Emtus mihi esto pretio dedvxito usu-  frtijctu*."   (b) Property could thereby be warranted free   1 XII Taf. II. 469. ^ y^t. Frag. 329.   3 Vat. Frag. 47. * Vat. Frag. 50.     Digitized by Microsoft®     USES OF LEX MANCIPI. 61   from all servitudes by the addition to the nuncupatio  of the words "uti optimus matvimiisque sit^." The  means by which the vendor was punished if the  property failed to reach this standard of excellence  will be presently examined.   (c) The contents and description of landed  property might be inserted in the nuncupatio, and if  they were so inserted the vendor was bound to  furnish as much as was agreed upon. Failing this,  the deceived purchaser, so Paulus tells us^ could  bring against the vendor an actio de modo agri,  which entailed damages in duplum.   (d) The accessories of the thing sold, destined  to be passed by the same conveyance, would also  doubtless be mentioned.   (e) We might naturally have supposed that  the quality of slaves or of cattle could have been  described just as well as the content of an estate.  Cicero says : " cum ex XII Tabulis satis erat ea  praestari quue essent lingua nuncupata^," as though  descriptions of all kinds might be given in the  nuncupatio. Nevertheless Bechmann* has shown  that such was not the case, inasmuch as we find no  traces of any action grounded upon a false description  of quality. The only actions which we find to  protect mancipium are the actio auctoritatis and the  actio de modo agri. There is no authority for  supposing, as Voigt does^ that the actio de modo  agri was not a technical but a loose term used by  Paulus. According to Voigt, there was an action   1 18 Dig. 1. 59. ^ Sent. i. 19. 1. ^ Off. iii. 16. 65.   « Eauf, I. p. 249. ^ XII Taf. 120.     Digitized by Microsoft®     62 THE TWELVE TABLES.   (the name of which has perished) to enforce all the  terms of a nuncupatio of whatever kind. The so-  called actio de modo agri would then have been only  a variety of this general action. This theory is  inadmissible: for in making his solemn list of  the actiones in dztpZwm ^Paulus would hardly have  used the clumsy phrase actio de modo agri, if there  had been a comprehensive term including that  very thing. Consequently, the description of slaves  or cattle in the nuncwpatio does not seem to have  been in practice allowed. The greater protection  thus afforded to a purchaser of land than to one  of other res mancipi may probably be explained by  the fact that land was not and could not be con-  veyed inter praesentes, whereas oxen or slaves could  be brought to the scene of the mancipiwrn and their  purchaser could see exactly what he was buying.   (/) Provisions as to credit and payment  by instalment might also be embodied as leges in  the nwncupatio. This has been denied by Bechmann",  Keller', and Ihering', but their reasons seem far from  convincing. We may indeed fully admit their view  for the period prior to the XII Tables, since there  was then no coinage, and mancipium was an absolute  conveyance of ownership. But when coinage had  been introduced, when mancipium was capable of  transferring dominium only after payment of the  price, and when the oral part of mancipium had  received legal validity from the XII Tables, the  whole situation was changed.   1 Sent. I. 19. 1. 2 j^auf, i. p. 42. 3 Imt. 33.   •> Geist d. R. R., ii. 530.     Digitized by Microsoft®     ORIGIN OF CREDIT IN MANCIPIUM. 63   If it be said that credit is inconsistent with the  notion of mancipium as an unconditional cash transac-  tion, we may reply that this exceptional lex was  clearly authorised by the XII Tables, since its use is  implied in the legislative change above mentioned'.  If it be urged that no action can be found to enforce  any such lex, the obvious answer is that no action  was needed, inasmuch as the ownership did not vest  in the vendee till the vendor's claims were satisfied,  and therefore if the vendee never paid at all the  vendor's simple remedy was to recover his property  by a rei uindicatio. Nor is there much force in the  argument that clauses providing for credit would  have been out of place in the nuncupatio because  inconsistent with the formula " Hanc rem meam esse  aio, mihique emta esto." On the one hand it is  probably a mistake to suppose that this fixed form  was always used, for the expression uti lingua  nuncupassit seems clearly to imply that the oral part  of mancipium and nexum was to be framed so as  best to express the intentions of the parties, and the  same conclusion may be drawn from the comparison  of the formulae of mancipatio given in Gains I On  the other hand, admitting that " hanc rem meam esse  aio, etc." was a necessary part of the nuncupatio, it  must have been used in mancipations made on  credit, which by the XII Tables could not convey  immediate ownership, and the existence of which in  classical times no one denies. We are forced then  to conclude either that "hanc rem meam esse aio"  was not the phrase used at a sale on credit, or else  1 2 Inst. 1. 41 and see p. 58. '■' i. 119 and ii. 104.   Digitized by Microsoft®     64 THE TWELVE TABLES.   that it became so far a stereotyped form of words  that it could be used not only in its literal sense  but also as applying to credit transactions which the  Decemviral Code so clearly contemplated. It is  indeed inconceivable that if the price was, as every  one admits, specified in the mmcupatio, the terms of  payment should not have been specified also.   It is worth while to notice how the legal  conception of mandpium was indirectly altered by  the XII Tables. That very important clause which  prevented the transfer of ownership in things sold,  until a full equivalent was furnished by the vendee^,  had the effect of separating the two elements of  which mancipimn consisted. Delivery of the wares  and receipt of the price had at first been simul-  taneous ; they now could be effected singly. Thus  mancipium became a mere conveyance, and after a  while, as was natural, the notion of sale almost  completely disappeared, so that mancipium came to  be what it was in Gains' system, the universal mode  of alienating res mancipi.   The lex mancipi, as we have now considered it,  was an integral part of the formula of viancipium  which the vendee or alienee solemnly uttered.  Gains and Ulpian give us no hint that the vendor or  alienor played any part beyond receiving the price  fi:om the other party. But was this really so ?  Could the vendee have known how to word his  formula if the vendor had remained altogether  silent ? We have therefore to enquire next  (1) what share the vendor took in framing the   1 2 Inst. 1. 41.     Digitized by Microsoft®     THE vendor's dicta. 65   leges mancipi, and (2) how the lex mancipi was  enforced against him.   1. The part played by the vendor is denoted  in many passages of the Digest^ by the word  dicere. In others the word praedicere^ or commemo-  rare^ expresses the same idea, and we find that the  vendor sometimes made a written and sealed decla-  ration^. The object of such dicta was to describe  the property about to be sold^ and they necessarily  preceded the mancipium, or actual conveyance. They  were thus no part of the mancipatory ceremonial and  were quite distinct from the nuncupatio uttered by  the vendee, which explains their not being mentioned  by Gaius in his account of mancipatio^. It is to such  dicta that Cicero doubtless alludes', when he says  that by the XII Tables the vendor was bound to  furnish only "quae essent lingua nimcupata" but  that in course of time " a iureconsultis etiam reticen-  tiae poena est constituta." The reticentia here  mentioned was evidently not that of the vendee,  but was a concealment by the vendor of some defect  in the object which he wished to sell, and hence  this passage is useful as showing the contrast  between nuncupatio and dictu/m. The former might  repeat the statements contained in the latter, thus  turning them into true leges mancipi, and this ex-  plains the fact that lex mancipi (or in the Digest  lex uenditionis^), is sometimes used in the secondary   1 e.g. 21 Big. 1. 33, and 18 Dig. 1. 59.   2 19 Dig. 1. 21. fr. 1. » 19 Dig. 1. 41. * 19 Dig. 1. 13. fr. 6.  5 19 Dig. 1. 6. fr. 4. « i. 119.   =■ Off. III. 16. 8 19 Dig. 1. 17. fr. 6.   B. E. 5,   Digitized by Microsoft®     6,6 THE TWELVE TABLES.   sense of the vendor's dictum, as well as with the  primary meaning of the vendee's nwncupatio. The  leges embodied in the nuncupatio were thus binding  on the vendor, whereas his dictum was at first of no  legal importance. But in course of time the dicta  Came also to be regulated, and though their terms  were not formal and were never required to be  identical with those of the nwncupatio, yet it was  essential that the vendor in making them should  not conceal any serious defects in the property. The  dictum itself produced no obligation ; that could only  be created by incorporating the dictum, into the nun-  cupatio. The only function of dictum seems to have  been to exempt the vendor from responsibility and  from all suspicion of fraud. This is well illustrated  by a case to which Cicero' refers, where Gratidianus  the vendor had failed to mention, " nominatim dicere  in lege mancipi " (here used in the secondary sense),  some defect in a house which he was selling, and  Cicero remarks that in his opinion Gratidianus was  bound to make up to the vendee any loss occasioned  by his silence. Bechmann^ questions whether the  action brought against Gratidianus was the ocii'o  eniti or the actio auotoritatis. But from the way in  which Cicero speaks, it seems almost certain that he  had been trying to bring a new breach of bona fides  under the operation of the actio emti, and had not been  pleading in a case of actio auctoritatis, which would  scarcely have been open to such freedom of inter-  pretation. We cannot therefore agree with Bech-  mann that dicta not embodied in the nv/ncupatio  1 Or. 1. 89. 178. 2 Kauf, i. p. 257.     Digitized by Microsoft®     NVNCVPATIO AND DIOTIO DISTINGUISHED. 67   could be treated as nuncupata and made the ground  for an actio auctoritatis, though we know that in  later times they could be enforced by the actio emti.  The distinction between the formal nuncupata and  the informal dicta was never lost sight of, so far as  we can discover from any of our authorities, nor is  dictum ever said to have been actionable until long  after the actio emti was introduced. The matters  contained in the dicta of the vendor were descrip-  tions : (i) of fixtures or of property passing with an  estate', (ii) of servitudes to which an estate was  subject^, (iii) of servitudes enjoyed by the estate^. It  is noticeable that these are all mere statements of  fact and that they exactly agree with the definition  given by Ulpian*, who expressly excludes from dictum  the idea of a binding promise. Thus the distinction  between nuncujpatio and dictio may be briefly sum-  marized as follows :   Nwmupatio belonged only to mancipium,, whereas  dictio might appear in sales of res nee mancipi as well  as in mancipatory sales ^.   Nuncupatio was a solemn and binding formula;  dictio was formless and, until the introduction of the  actio emti, not binding.   Nuncupatio, as we have seen, did not touch  upon the quality of the thing sold, whereas dictio  might give, and eventually was bound to give, full  information on this point.   We must notice in conclusion what Bechmann   1 19 Big. 1. 26. = 21 Big. 2. 69. fr. 5.   3 Cio. Or. I. 39. 179. * 21 Big. 1. 19.   « 19 Big. 1. 6.   5—2   Digitized by Microsoft®     68 THE TWELVE TABLES.   has pointed out\ that lex, besides meaning a condi-  tion embodied in a sale or mancipation, signified  also a general statement of the terms of a sale or  hire. This sense occurs in Varro", Vitruvius', Cicero*  &c., and should be borne in mind, in order to avoid  confusion and to understand such passages correctly.   2. The methods by which the true leges nuneit-  patae could be enforced were two :   (a) Actio de modo agri. Of this we only know  that it aimed at recovering double damages from the  vendor who had inserted in the nuncupatio false state-  ments as to the acreage of the land conveyed^   (6) Actio auctoritatis (so called by modern civil-  ians'). This was an action to enforce auctoritas, an  obligation created by the XII Tables', whereby the  vendor who had executed a mancipatory conveyance  was bound to support the vendee against all persons  evicting him or claiming a paramount title. Auctor  apparently means one who supplies the want of legal  power in another, and thereby assists him to maintain  his rights. It is so used in tutela, of the guardian  who gives auctoritas to the legal acts of his ward.  In the present case, auctor means one who makes  good another man's claim of title by defending it;  and this explains why the obligation of auctoritas  varied in duration according to the nature of the  thing sold. Thus if the thing was a moveable (e.g.  an ox) the auctoritas of the vendor lasted only one  year, since the usucapio of the vendee made it un-   1 Eauf, I. p. 265. 2 £. ^ vi. 74. » i. 1. 10.   « Part. or. 31. 107. ^ Leuel, Z. d. Sav. Stift. E. A. in. 190.   s Lenel, Ed. perp. p. 424. ' Cic. Gaec. 19. 54.   Digitized by Microsoft®     SOURCE OF AV0T0RITA8. 69   necessary after that time. But if the thing sold was  land, usucapio could not, by the XII Tables, take  place in less than two years, and the avctoritas was  prolonged accordingly ^ The penalty for an un-  successful assertion of auctoritas was a sum equal  to twice the price paid^. This shows that at the  date of the XII Tables, as we have seen, mancipium  was still a genuine sale and involved the payment  of the full cash price. The same conclusion may  be drawn from Paulus' express statement that unless  the purchase money had been received no auctoritas  was incurred. This last rule was a logical sequence  of the enactment that no property vested until  payment was fully made, since it was impossible  that the vendee should need the protection of an  auctor before he had himself acquired title.   The question has been much debated whether  this liability of a vendor to defend his purchaser's  title arose ipso iure out of the mancipation, or  whether it was the product of a special agreement.  The latter view is held by Karlowa^, and Ihering*,  but the weight of evidence against it seems to be  overwhelming^   (a) Paulus* expressly states that warranty of  title was given in sales of res nee maiicipi by the  stipulatio duplae, but existed ipso iure in sales by  mancipation.   (6) Varro' says that if a slave is not conveyed   1 Cio. Top. i. 23. 2 Paul. Sent. ii. 17. 2-3.   3 L. A. 75. * Geist des R. R. m. 540.   5 See Girard, in N. E. H. de D. 1882. (6me Annge) p. 180.   6 Sent. II. 17. 1-3. ^ R. R. ii. 10. 5.   Digitized by Microsoft®     70 THE TWELVE TABLES.   by mancipation, his purchaser's title should be  protected by means of a. stipulatio smvplae uel duplae,  thus implying that in cases of mancipation such a  step was unnecessary.   (c) In recommending forms for contracts of  sale, Varro advises the use of the stipulatio in sales  of res nee mancipi'^, but gives no such advice and  mentions no stipulatory warranty in the case of res  mancipi.   (d) We find that there were two ways in which  the vendor could escape the liability of aitctoritas;  either (i) he could refuse to mancipate^, or (ii) he  could have a merely nominal price inserted in the  nuncupatio (the real price being a matter of private  understanding between him and the vendee), so that  the penalty for failing to appear as auctor would be a  negligible quantity. This we actually find in a man-  cipatio HS nummo uno, of which an inscription has  preserved the terms' where the object in mentioning  so small a sum must have been to minimise the  poena dupli in case the purchaser M'as evicted. Both  these expedients to avoid liability are absolutely  fatal to the theory of a special nwncupdtio as the  source of auctoritas. In short from all this evidence  we must conclude that after the enactment of  the XII Tables mandpium contained an implied  warranty of the vendee's title.   The origin of the heavy penalty for failing to  uphold successfully a purchaser's title has also been  much debated. Bechmann'' attributes its severity to   1 R. E. n. 2. 6, and 3. 8. " Plant. Pers. 4. 3. S7.   » Bruns, Font: 251. * Kauf, i. p. 121.     Digitized by Microsoft®     ORIGIN OF PENALTY IN AYCTOBITAS. 71   a desire to punish the vendor who had suffered his  vendee to say "hanc rem meam esse aio," when he  knew that such was not the case. But this would  have been to punish the vendor for reticentia, which  was not done till much later times, as we know from  Cicero; and moreover as we cannot be sure that  the phrase " hanc rem meam esse aio " was invariably  used in mancipium^, this view of Bechmann's comes  too near to the theory of the nuncupative origin of  auctoritas, not to mention the fact that it fails to  explain why the penalty was duphmi instead of sim-  plum. The best theory is probably that of Ihering-,  who sees in the poena dupli a form of the penalty  for furtum nee manifestum. It may be true, as  Girard has pointed out', that the actio auctoritatis  was not an actio furti in every respect. The sale of  land to which the seller has no good title lacks the  great characteristic of furtum, that of being com-  mitted inuito domino, since the real owner of the land  may often be entirely ignorant of the transaction.  Still it is plaia that the conscious keeping and selling  of what one knows to be another man's property is  a kind of theft ; and, in that primitive condition of  the law, it may have been thought unnecessary to  impose different penalties on the hona fide vendor  whose trespass was unconscious, and on the vendor who  was intentionally fraudulent. This poena dupli can  hardly be explained as a poena infttiationis, for if  such, would not Paulus have been sure to mention  it among his other instances of the latter penalty* ?   i See above, p. 63. ^ Geist des R. R. in. 229.   ' loc. eit. p. 216. " Paul. Sent. i. 19. 1.   Digitized by Microsoft®     72 THE TAVELVE TABLES.   Auctoritas had to be supplied by the vendor  whenever any third person, within the statutory  period of one or two years, attacked the ownership of  the vendee by a m uindicatio, or by a uindioatio  libertatis causa if the thing sold was a slave, or by  any other assertion of paramount title. Bechmann  seems to be right in holding that the warranty of  title also extended to all real servitudes enjoyed  by the property, and to any other accessiones which  had been incorporated in the nwncwpatio. To attack  the vendee's claim in that respect was to attack  a part of the res mancipata. Hence actio avctori-  tatis was the remedy mentioned above' in connection  with the true leges mancipi, and we may hold with  Bechmann and Girard" that the actio auctoritatis  and the actio de modo agri were the only available  methods of punishment for the non-fulfilment of a  lex mancipi.   How the vendor was brought into court as  aioctor is a question not easy to answer. But in  Cicero ° we find an action described as being in  auctorem praesentem, and apparently opening with  the formula : " Quando in iure te conspicio, quaero  anne fias auctor." The opening words do not lead us  to suppose that the vendor had been summoned, but  rather that he had casually come into court. This  formula was probably uttered by the judge*, in every  case of eviction, before the inauguration of the actio  avxytoritatis, in order to give the defendant an oppor-  tunity of answering and so of avoiding the charge.   ' See above p. 61. ^ loc. cit. p. 203.   3 Gaec. 19. 64 ; Mm: 12. 26. < Lenel, Ed. Perp. p, 427.     Digitized by Microsoft®     FUNCTION OF THE AVOTOR. 73   If no answer was made to this question, the  vendor was held to have defaulted, and the vendee  might properly proceed to bring his actio auctori-  tatis for punitive damages. But supposing that the  ■aiictor duly appeared to defend his vendee, what  were his duties ? It is not probable that he took  the place of the vendee as defendant, because the  word auctor does not seem to imply this, and because  the vendor having conveyed away all his rights had  no longer any interest in the property. The most  probable solution seems to be that which regards  the auctor simply as an indispensable witness. In  the XII Tables we know^ what severe penalties were  laid upon a witness who did not appear, as well as  upon one who bore false testimony. Now an atictor  who appeared but failed to prove his case was  clearly a false witness, while one who failed to  appear was an absconding witness. This was pro-  bably an additional reason for the severe punishment  inflicted on the auctor by the XII Tables. Thus  "the ingenious supposition of Voigt'', that the vendor  cannot possibly have incurred so heavy a penalty by  mere silent acquiescence in the nuncupatio of the  vendee, and must therefore have made a nuncupatio  of his own in which he repeated the words used by  the vendee, seems to be purely gratuitous as well  as wholly unsupported by evidence.   The last question to be considered is this: did   •auctoritas apply solely to the warranty of things   alienated by mancipium, or did it also apply to   things alienated by in iure cessio ? An answer in   1 See above p. 52. » XII Taf. ii. 120.   Digitized by Microsoft®     74 THE TWELVE TABLES.   the broader sense is given by Huschke^ who cites  Gaius^ as proving that mancipatio and in iure  cessio had identical effects. But this is at best a  loose statement of Gaius', and cannot prevail against  the stronger evidence which goes to prove that  auctoritas was a feature peculiar to mancipmm^  Bekker' points out that in iure cessio cannot have  produced the obligation of auctoritas, because the in  iure cedcTis took no part in the proceedings beyond  making default, and could not therefore have made  deceptive representations rendering him in any way  responsible. In iure cessio must then have been  from its very nature a conveyance without war-  ranty, and Paulus confirms this inference by stating*  that the three requisites of auctoritas were (i) man-  cipatio, (ii) payment of the price, (iii) delivery of  the res.   We may then sum up the foregoing remarks by  defining lex mancipi and auctoritas as follows :   Lex mancipi in its primary meaning, was a  clause forming part of the mmcupatio spoken by the  vendee in the course of mancipiimi, and constituting  a binding contract. It might embody descriptions  of quantity, specifications of servitudes whether  active or passive, conditions as to payment, and any  other provisions not conflicting with the original  conception of mancipium as a cash sale.   In its secondary meaning, which we must care-  fully distinguish, it referred to the dicta made by  the vendor.   ' Nexum, p. 9. ^ li. 22.   s Akt. I. p. 33, note 10. * Sent. ii. 17. 1-3.     Digitized by Microsoft®     THEORIES AS TO FIDVOIA. 75   Thirdly, we even find it applied to the terms  of sale as a whole, including nuncupatio, dicta, and  any other private agreement between the parties  respecting the sale.   The two means of enforcing leos mancipi in the  first sense were actio de modo agri and actio auc-  toritatis.   Auctoritas was an implied warranty of title intro-  duced by the XII Tables into every mancipatory con-  veyance, subject to the condition precedent that the  vendee must have received the goods and paid the  price. If the vendee was evicted, his proper remedy  was the actio auctoritatis (most probably an instance  of legis actio Sacramento'^), the object of which was  to recover punitive damages of double the amount of  the price paid, and which could be brought against  the vendor within two years, if the object sold  was an immoveable, and within one year, if a  moveable.   Since the lew mancipi is often credited with a  still wider function, we are next brought to consider  the agreement known as fidticia.   Art. 5. FIDVCIA. This agreement is thought by  many scholars to have been a species of lex mancipi,  and consequently a creation of the XII Tables.  Among those who thus regard fiducia as an agree-  ment contained in the nuncupatio are Huschke^,  Voigt', Eudorfif* and Moyle'. The first writer of  any weight who disputed the correctness of this view   1 Girard, I.e. p. 207. ^ Nexum, pp. 76, 117.   s XII Taf. II. 477. * Z. fur EG. xi. 52.   5 App. 2 to his ed. of the Inst.   Digitized by Microsoft®     76 THE ITVEtVE TABLES.   was Ihering^, and he has now been followed by Bek-  ker", Bechmami', and Degenkolb*. The view held by  these writers would seem to be the only tenable one.  They assert that fiducia never was a part of manci-  pium, but was simply an ancillary agreement tacked  on to mancipium and couched in no specific form.  The arguments againsb the former theory are :   (1) That fiducia might exist in cases of in iure  cessio as well as in cases of mancipium. Now in  iure cessio gave no opportunity for the introduction  of nuncupative contract. How then could a nuncu-  patio containing a fiducia have been introduced  among the formalities of the uindicatio ?   (2) We know that the actio fiduciae was bonae  fidei, and ionae fidei actions were of comparatively  late introduction ; how then is this fact to be  reconciled with the theory which derives fiducia from  the nuncupatio of the XII Tables ? Voigt" states that  the actio fidiuiiae was but one form of the ordinary  action on a lex mxmcipi (it must be remembered  that he regards every lex mancipi as having been  actionable), but he gives no explanation of the  surprising fact that fiducia alone of all the species of  lex mancipi should have been provided with an actio  bonae fidei.   (3) If we admit, as we have done', that the  only actions based upon mancipium are the actio  auxitoritatis and the actio de modo agri, how can  the actio fiduciae be classed with either ?   1 Geist des R. R. ii. p. S56. = Akt. i. 124.   3 Kauf, i. p. 287. « Z. fur RG. ix. p. 171.   " XII Taf. II. p. 475. « supra, p. 68.     Digitized by Microsoft®     THE FWVOIAE INSTBVMBNTVM. 77   (4) The strongest piece of evidence which we  possess in favour of Ihering's theory has appeared  since he wrote. It consists of a bronze tablet in-  scribed with the terms of a pactum fiduciae^ which  Degenkolb" has carefully criticised and which seems  to be conclusive in favour of our view. It contains,  not a copy of the words used in mancipation, but a  report of the substance of a fiduciary transaction.  The mancipation is said to have taken place first,  fidi fiduciae causa, and then the terms of the fiducia  are said to have been arranged in a pactum conuen-  tum between the parties, Titius and Baianus. It is  evident from the language of the tablet that this  fiduciary compact was independent of the mancipatio  and informally expressed, so that any attempt, such as  those made by Huschke and Rudorff, to reconstruct  the formula of fiducia, and to fit such a formula into  the nuncupatio of mancipium, is necessarily futile.  Voigt' has even taken pains to give us the language  used in the arbitrimn by which, according to him,  fiducia was enforced. This bold restoration is a good  instance of Voigt's method of supplementing history,  but it cannot be said materially to advance our  knowledge.   We are nowhere told that fiducia could not be  applied to cases of traditio, and a priori there  is no reason why this should not have been the  case. Yet all our instances of its use connect it  solely with mancipatio or in iure cessio*, and all the   1 Printed in C. I. L. No. 5042 and Bruns, Font. p. 251.   2 Z. filr EG. IX. pp. 117—179. '' XII Taf. ii. p. 480.   * Isid. Orig. v. 25. 23 ; Gai. ii. 59 ; Boeth. ad Gic. Top. iv. 10, 41.     Digitized by Microsoft®     78 THE TWELVE TABLES.   modem authorities, except Muther', are agreed in  thus limiting its scope. If indeed we could extend  fiducia to cases of traditio, it would be very hard to  see why there should not have been a contractibs  fiduciae as well as a contraxitus cotnmodati, depositi or  pignoris. We know from Gains' that fiducia was  often practised with exactly the same purpose as  pignut or depositum, and we may reasonably infer  that it was the presence of mancipaiio or in iure  cessio which caused the transaction to be described,  not as pigrms or depositum, but as fiducia. If we  admit that fiducia was never connected with traditio,  we can readily see why it never became a distinct  contract. Bechmann' points out that in iure cessio  or mancipatio was naturally regarded as the prin-  cipal feature in such transactions as adoptions,  emancipations, coemtiones, etc. The solemn transfer  of ownership was in all these cases so prominent,  that fiducia was always regarded as a mere pactum  adiectum.   If then we cannot admit fiducia to any higher  rank than that of a formless pactum, it follows that  the actio fiduciae, being borme fidei, and therefore  most unlikely to have existed at the period of the  XII Tables, must have originated many years later  than fidvMa itself, which as a modification of  mancipatio probably dated from remote antiquity;  This may serve as an excuse for discussing ^tfcia in  this place, although the XII Tables do not actually  mention it. But it must have existed soon after  that legislation, since it was the only mode of accom-   1 Sequestration, p. 337. " ii. 60. s Kauf, i. p. 293.     Digitized by Microsoft®     ARGUMENT FROM VSVBECEPTIO. 79   plishing the emancipation of a filiusfamilias as based  upon the XII Tables.   The theory that fiducia originated long before  the actio fiduciae is corroborated by the account  which Gaius gives' of the peculiar form of usucapio  called usureceptio. This was the method by which  the former owner of property which had been man-  cipated or ceded by him subject to a fiducia could  recover his ownership by one year's uninterrupted  possession. It diflfered from ordinary usucapio only  in the fact that the trespass was deliberate, and that  immoveable as well as moveable things could be thus  reacquired in one year instead of in two. This  peculiarity as to the time involved may perhaps be  explained by supposing that the objects of fiducia  were originally persons and therefore res mobiles, or  else consisted of whole estates which, like hereditates,  would rank in the interpretation of the XII Tables as  ceterae res. Now ii fiducia had been incorporated, as  some think, in the formula oi mancipium, and had been  actionable by means of an actio fiduciae based on the  lex mancipi, could not the owner have recovered the  value of his property by bringing this action, instead  of having been forced to abide the tedious and doubtful  result of a whole year's possession ? The fact noted  by Gaius that where no money was paid no usureceptio  was necessary, simply follows from the well-known rule  that an in iure cedens as well as a mancipio dans did  not lose his dominium until the price had been fully  paid to him. We may therefore conclude that man-  cipatio fiduciae causa resembled in its effect any  1 II. 59-60.     Digitized by Microsoft®     80 THE TWELVE TABLES.   other mancipatio. If this be the case, then fduda,  as we have already said, must for many years have  been an informal and non-actionable pactum, sup-  ported by fides and by nothing else. Bechmann  holds that' the object of the fiduciary mancipation  was expressed in the nuncupatio by the insertion of  the words fidi fiduciae causa, but this is a minor  point which it is impossible to determine with  certainty.   Fiducia then may be briefly described as a  formless pactum, adiectwm, annexed to Tmrndpatio or  in iure cessio, but not originally enforceable by action,  and therefore having no claim at this early date to  be considered as a contract.   Art. 6. VADIMONIVM is a contract which we  know to have been mentioned and perhaps intro-  duced by the XII Tables^. Gellius, however, speaks  of the ancient uades' as having completely passed  away in his time, so that in the opinion of Karlowa*  we can scarcely hope to discover the original form  of the institution. The most thorough inquiry into  the question is that made by Voigt', who has treated  the authorities and sources with the minutest care,  but whose conclusions do not always seem to be well  founded.   Let us first examine the essence of the trans-  action, a point as to which there is no doubt.  Vas meant a surety, and uadimonium the contract  by which the surety bound himself. Thus uadem   1 Kauf, I. p. 294. " Gell. xvi. 10. 8.   » ibid. * L.A. p. 324.   ^ Phil. Hist. Abhandl. der k. S. Ges. d. Wiss. viii. 299.     Digitized by Microsoft®     NATURE OF VADIMOS'irM. 81   poscere^ meant to require a surety, vadem dare to  provide a surety, uadem accipere to take a man  as surety for another man^, and uadari either to give  surety or to be a surety*. From the point of view  of the principal (uadimonium dans) uadimonium  sistere meant to appear in due course ^ uadimonium  deserere, to make default, while uadivionium differre  meant to postpone the obligation which the ims had  undertaken. The penalty for nonperformance was  the payment (depen^io) by the uas of the sum pro-  mised by his principal, who however was bound to  repay him**. There might be more than one uas,  and Voigt is probably right in stating that the  svbuas was a surety for the performance of the  obligation by the original uas''.   There were two kinds of luidimonium, (i) that  which secured the performance of some contract';  (ii) that which secured the appearance of the party  in court, =bail'. Under the first of these heads  Voigt places the satisdatio secundum mancipium  which is found in the Baetic Fiduciae Instrumentumi  as well as in Cicero", but whether or not this satis-  datio was given in the form of a uadimonium must  remain undetermined ; though, if it had been so  given, we might perhaps have expected Cicero to  use the technical phrase.   1 Cio. Rep. II. 36. 61; Var. L. L. vi. 8. 74.   ' Cio. Fin. ii. 24. 79. ^ Cic. Brut. i. 18. 3.   " Prise. Gram. i. 820. ^ Cic. Quint. 8. 29.   6 Cic. ad Brut. i. 18. 3. ; Plaut. Bud. 3. 4. 72.   ' I. c. p. 307. ^ Varro, L. L. vi. 7. 71.   » Cio. Off. IV. 10. 45. " ad Att. v. 1. 2.   B. E. 6   Digitized by Microsoft®     82 " THE TWELVE TABLES.   Next comes the question, in what form was  uadimonium origiQally made ?   The verbal nature of the primitive contract seems  to be proved by the passages that Voigt quotes^  while he also completely denrolishes the old view  which regarded uadimonium as having always been  a kind of stipulation, and points out Varro's^ ex-  press statement that uas and sponsor were not the  same thing. On the other hand it is plain that  uadimonium had come by Cicero's time to denote  a mere variety of the stipulation, a fact which may  be gathered from his language' and that of Varro*,  as well as from the frequent use of promittere in  passages describiag the contract. The later aspect  of uadimonium, need not however detain us, and  we may occupy ourselves solely with its primitive  form.   (a) Leist seems to think that both uadi-  monium and praediatura were binding, like the  spon^sio, in virtue of a sacred " word-pledge," or in  other words that " Vas sum" " Praes swm'' had a  formal value analogous to that of " Spondeo." This  view he bases on the etymology of vms, praes and  their cognates in the Aryan languages, but an ex-  amination of Pott^ Curtius' and Dernburg' serves  to show how entirely obscure that etymology is. If  we cannot be sure whether uas is derived from fari,   1 Gic. ad Qu. fr. ii. 15. 3. ; Ovid, Am. i. 12. 23 : uadimmia  garrula; etc.   a L. L. VI. 7. 71. 3 Q„int. 7. 29. * loc. cit.   6 Etymol. Forsch. iv. p. 612. « Civ. Stud. iv. 188.   ' Pfdr. I. 27..     Digitized by Microsoft®     PRIMITIVE FOEM OF VADIMONIVM. 83   to speak, uadere, to go, or from an Indo-Germanic  root meaning to bind, it is clearly impossible to  build any theory on so iasecure a foundation. More-  over, whatever the true etymology of uas may  ultimately be proved to be, we can find in the above  derivations no suggestion of a binding religious  significance such as we discover in sponsio.   (b) Voigt boldly assumes a knowledge of the  ancient ceremony, and assigns- to the iwtdimonium  connected with the sale of a farm the following  formula : " Ilium fundum qua de re agitur tihi habere  recte licere, haec sic recte fieri, et si ita faMum non  erit, turn x aeris tihi dare promitto." This is not  only purely imaginary, like many of Voigt 's recon-  structed formulae, but the unilateral form in which  it is expressed has no justification from historical  sources. The scope of promittis? promitto in a  stipulation is well established, but how can pro-  mitto in an unilateral declaration have had any  binding effect ? Voigt justifies his view by a com-  parison with dotis dictio and iurata operarum pro-  missio'^, but in both of these there was, as we have  seen, a binding power behind the verbal declaration.  The word promitto alone could never have produced  the desired effect, unless we admit the principle laid  down by Voigt^ that an unilateral promise was suffi-  cient to create a binding obligation, which is merely  to beg the question. If indeed we take promittere in  its ordinary sense, we cannot doubt that uadimonium  in Cicero's time was contracted by sponsio or stipu-   1 loc. cit. p. 315. ' lusNat. in. 178.   6—2   Digitized by Microsoft®     84 THE TWELVE TABLES.   latio, but on the other hand it is equally certain that  the ancient uadimonium, whatever it was, disappeared  soon after the Lex Aebutia.   The old form known to the Decemvirs cannot  then be stated with the absolute certainty which  Voigt seems to assume, but we may hazard one  theory as to its nature which appears not im-  probable, or at least far less so than that of an  unilateral promissio. Gains' tells us that there  were several ways of making uadimonia, and that  one of them was the ancient method of iusiurandwm.  That this was an exceptional method is proved by  our rarely finding it in use^ and its adoption is  almost inconceivable, except in the earliest times  when the oath was fairly common as a mode of  contract. We may be sure that the old uadimonium  was embodied in some particular form of words, else  it is hard to imagine how the penalty could have  been specified. But if so, and if we exclude sponsio,  as we are bound to do, what form of words could  have had such binding force as an oath ? The rarity  of this oath in Gellius' time may have induced him  to state that it had quite disappeared', while Gaius  may have mentioned it in order to make his list  of vadimonia complete.   Further, on examining the remedies for a breach  of iitsiurandum*, we find that self-help was resorted  to, just as it was in cases of neooum. And when  self-help began to be restrained by law, the natural     ' IV. 185. 2 e.g. 2 Dig. 8. 16.   3 See above p. 32. « See above p. 11.     Digitized by Microsoft®     POSSIBLE USE OF IV8IVRANDVU. 85   substitute would have been manus iniectio. Now  there is good reason to believe that the early  iwbdimonium was enforced by the legis actio per  maniis iniectionem'^, and as Karlowa rightly says^, we  cannot imagine such a severe penalty to have been  entailed by an ordinary sponsio. lusiurandum, on  the contrary, may easily have had this peculiarity,  since it is the only form of verbal contract which  we know to have been protected by means of self-  help.   Again, nanus iniectio seems to have been employed  not only by the principal against the uas, but also  by the uas against the principal. When Gaius states  that sponsores were authorized by a Lex Puhlilia  to proceed by manus iniectio against a principal  on whose behalf they had spent money (depensum),  he seems to show that facts and circumstances  were sometimes recognized as a source of legal  obligation. But we are bound to reject this ex-  planation, since no obligation ex re was recognized  until much later in the Roman jurisprudence. It  is far more likely that, as Muirhead suggests^, the  Lex Puhlilia merely extended to sponsores the  remedy already available to nodes; so that sponsio  became armed with the manus iniectio simply on  the analogy of its older brother uadimonium. The  theory here put forward as to the early form of  uadim.oniu/ni must remain a pure conjecture in the  absence of positive evidence; but its connection  with iusiurandum is at least a possibility.   1 Karlowa, L. A. p. 325 : Voigt, XII Taf. ii. 495.   2 L. A. p. 324. 3 R. L. p. 166.   Digitized by Microsoft®     86 THE TWELVE TABLES.   This vexed question may then be summed up as  follows :   (i) In the legal system of the XII Tables  uadimonium was a contract of suretyship, possibly  entered into by iusiurandwm, and probably entailing  manus iniectio, (a) if the surety (uas) failed to fulfil  his obligation, or (b) if the principal (uadimonium  dans) failed to refund to his surety any money  expended on his behalf   (ii) In later times uadimonium was clothed  in the ordinary sponsio and its old form had  completely disappeared.   Art. 7. There are a few other fragmentary  provisions in the XII Tables, which relate to  contracts and require a brief notice.   I. Paulus^ speaks of an actio in duplimi as  given by the XII Tables ex causa depositi. This  cannot have had any connection with the actio  depositi of the Institutes and Digest, for the latter  was an invention of the Praetor {honoraria), and  therefore could not have appeared till towards the  end of the Kepublic, while its usual penalty was  simplum, not duplum. Voigt explains^ this action  of the XII Tables as an instance of actio fduciae  based upon a fiducia cvrni amico. But we cannot  admit that fiducia at such an early period was  actionable at all', and still less can we base on  Voigt's assumption the further theory that every  breach of fiducia must have had a penalty of du-  plum annexed to it. The conjecture made by   1 Sent. II. 12. n. ^ XII. Taf. ii. 4. 79.   ' See above, page 78.     Digitized by Microsoft®     ACTIO EX CAV8A DEPOSIT!. 87   Ubbelohde' that the actio ex causa depositi of the  XII Tables was an actio de perfidia seems still more  rash than that of Voigt, and has deservedly met with  but little favour.   There are two points to be noted in this state-  ment of Paulus :   (i) He states that the action was ex causa  depositi: he does not call it actio depositi.   (ii) He does not say how the depositum was  made, but implies that it might be made by traditio  as well as by Tnancipatio, which also goes against  Voigt 's theory.   It was an ancient rule^ that if a man used the  property of another in a manner of which that other  did not approve, he was guilty of common theft, and  was punishable in duplum like any other fur nee  manifestus. It seems therefore quite reasonable  to suppose that the XII Tables mentioned this  kind o{ furtumi as arising ex causa depositi. If so,  the penalty of duplum mentioned by Paulus is no  mystery. It was merely the ordinary penalty as-  signed to furtum nee manifestum, and depositum as  a contract had nothing to do with it. Hence this  actio ex causa depositi does not properly belong to  our subject at all.   II. Gaius° says that by the pignoris capio of,  the XII Tables (a) the vendor of an animal to be'  used for sacrifice could recover its value if the  purchaser refused to pay the price, and (6) a man  who had let a beast of burden in order to raise  money for a sacrifice could recover the amount of   1 Gesch. der ben. R. G. p. 22. ^ gai. iii. 196. » iv. 28.     Digitized by Microsoft®     88 THE TWELVE TABLES.   the hire. Hardly anything is known of the legis  actio per pignoris capionem, but it was evidently  some proceeding in the nature of a distress, through  which the injured party could make good his claim  by seizing the property of the delinquent. The  only points in which this passage of Gains is in-  structive are these. First, we are here shewn what  were evidently exceptional instances of the legal  liability of a man's property, as distinguished from  his person, for his breaches of agreement. Secondly,  we here have conclusive proof that the consensual  contracts of sale and hire were unknown at the  period of the XII Tables : these two special in-  stances in which the contracts were first recognised  were both of a religious nature, and the makers of  the XII Tables do not seem to have dreamt that  other kinds of sale or hire needed the least protec-  tion. Thus for many years to come the most  ordinary agreements of every-day life, such as hire,  sale or pledge, were completely formless, depended  solely on the honesty of the men who made them,  and were not therefore, properly speaking, contracts  at all. The principle of the old Roman law that  neither consent nor conduct could create an obliga-  tion ex contractu, but that every contract must be  clothed in a solemn form, appears in the fullest  force throughout the XII Tables.     Digitized by Microsoft®     CHAPTER IV.   THE DEVELOPMENT OF CONTRACT.   At the threshold of a new period we may pause  to review briefly the ground already covered, and to  observe the very different aspect of our future field  of inquiry.   We find the legal system of the XII Tables to  have possessed five distinct forms of contract,  iusiurandum (including uadimonium ?), sponsio, dotis  dictio, neooum, and leoc mancipi. But though the  list sounds imposing enough, these forms were still  primitive and subject to many serious limitations :   (i) Roman citizens only were capable of using  them, and hence they were useless for purposes of  foreign trade.   (ii) They all alike required the presence of  the contracting parties, and were therefore available  only to persons living in or near Rome.   (iii) They all required the use of certain formal  words or acts, so that, if the prescribed formula or  action was not strictly performed, the intended  contract was a nullity.   (iv) The remedies for a breach of contract,  except in the case of nexum and lex mancipi, were  probably of the vaguest description, and may have  consisted only of self-help carried out under certain  pontifical regulations.     Digitized by Microsoft®     90 THE DEVELOPMENT OF CONTRACT.   A system with so many flaws was plainly  incapable of meeting the many needs which grew  out of immense conquests and rapidly extending  trade. Accordingly by the end of the Republic we  find that the law of contract had wholly freed itself  from every one of these four defects :   (i) Contracts had been introduced in which  aliens as well as Romans could take part.   (ii) Means had been devised for making con-  tracts at a distance.   (iii) Forms had by degrees been relaxed or  abolished.   (iv) Remedies had been introduced by which."  not only the old contracts but all the many new.  ones were made completely actionable.   The question now before us is: how had this  wonderful development been achieved ?   It is customary in histories of Roman Law to  subdivide the period from the XII Tables to the  end of the Republic into two epochs, the one before  the Lex Aebutia, the other subsequent to that law.  The reason for this subdivision is that the Lea:  Aebutia is supposed to have abolished the legis  actio procedure and to have introduced the so-called  formulary system, which enabled the Praetors to  create new forms of contract by promulgating  in their Edict new forms of action.   Such a division doubtless has the merit of giving  interest and definiteness to our history, but it has two  great drawbacks : First, that we do not know what  the Lex Aebutia did or did not abolish ; and secondly,  that its date is impossible to determine.     Digitized by Microsoft®     OBSCURITY OF LEX AEBVTIA. 91   As to its provisions, the two passages in which  the law is mentioned by Gains ^ and Gellius''' merely  prove that the legis actio system of procedure and  various other ancient forms had become obsolete as  a result of the Lex Aebutia. But that these were  not suddenly abolished is proved by the well-known  fact that Plautus and Cicero refer more often to the  procedure by legis actiones than they do to that per  formulas. The most plausible theory seems to be  that which regards the Lex Aebutia as having  merely authorized the Praetors and Aediles to  publish new formulae ia their annual Edicts. But  even this is nothing more than a conjecture.   The date of the Lex Aebutia (probably later than  A. V. C. 500) is also involved in obscurity, as is proved  by the fact that scarcely two writers agree upon the  question".   It seems clear that a law about which so  little is known is no proper landmark. The plan  here adopted will therefore be a different one. We  shall content ourselves with a detailed examination  of each of the kinds of contracts which we know  to have existed at Rome between the XII Tables  and the beginning of the Empire, treating in a  separate section of each contract and its history  down to the end of the period. By this means  we may avoid confusion and repetition, though the  period in hand, extending as it does over nearly five  hundred years, is perhaps inconveniently large to  be thus treated as a whole.   1 IV. 30. ' XVI. 10. 8.   ' A. V. c, 584 according to Poste and Moyle ; 513 aecording  to Voigt ; 507 according to Muirhead ; etc.     Digitized by Microsoft®     CHAPTER V.   FORMAL CONTRACTS OF THE LATER REPUBLIC.   Art. 1. Nexvm. The severity and unpopu-  larity of nexum did not prevent its continuance for  at least one hundred years after the modifications  made in it by the XII Tables. Its character  remained unchanged, until at last the Roman  people could suffer it no longer. In A. v. c. 428'  a certain nesous was so badly treated by his credi-  tor that a reform was loudly demanded. The Lex  Poetilia Papiria was the outcome of this agitation.  Cicero', Livy' and Varro* have each given a short  account of the famous law, and from these it  may be gathered that its chief provisions were as  follows :   (i) That fetters should ia future be used only  upon criminals.   (ii) That all insolvent debtors in actual bondage  who could swear that they had done their best to  meet the claims of their creditors °, should be set  free.   1 According to Liyy, but Dionysius makes it 452.   2 Bep. II, 30. 40. 59. s viii. 28. * L. L. vii. 5. 101.  ' Next qui bonam copiam iurarent : cf. Lex lul. Mun. 113,     Digitized by Microsoft®     LEX POETILIA PAPIRIA. 93   (iii) That no one should again be neccus for  borrowed money, i.e. that manus iniectio and the  other ipso iure consequences of nescum should  henceforth cease.   Varro is the one writer who mentions the  qualification that it was only nexi qui honam copiam  iurarent who were set free. But Cicero and Livy  may well have thought this an unnecessary detail,  considering what an immense improvement had  been made by the statute in the condition of all  future borrowers. A clause of the Lex Coloniae luliae  Genetiuae^ shows that imprisonment for debt was  still permitted, but that the effects of ductio were  much softened, the uinctio neruo ant compedibus  and the capital punishment being abolished along  with the addictio. But diici inhere was still within  the power of the magistrate^, and Karlowa" seems to  be right in holding that this was not a new kind of  ductio originating subsequently to the Lecc Poetilia.  The Praetor doubtless always had the power to  order that a iudicatus should be taken and kept in  bonds. But this was a very different thing from  the utterly abject fate of the nexus under the XII  Tables. It was only therefore the special severities  consequent upon nexum that can have been abolished  by the Lex Poetilia. Nexum itself was not abro-  gated, for the way in which later authors speak of it  shows that there still survived, if only in theory, a  form bearing that name and creating an obligation.  But as soon as its summary remedies were taken   1 cap. 61; Bruna, Font. p. 119.   2 Lex Bubr. cap. 21 ; Bruns, Font. p. 98. ^ L. A. p. 165.     Digitized by Microsoft®     94 FORMAL CONTRACTS OF THE LATER REPUBLIC.   away, neocum became less popular as a mode of  contract and gave way to the more simple obligatio  uerbis. Another reason for its being disused, wlien  it no longer had the advantage of entailing capital  punishment, was that the introduction and wide-  spread use of coinage made the use of scales  unnecessary. Stipulatio, which required no acces-  sories and no witnesses, was now the easiest mode  of contracting a money loan. We shall see in the  next section that it came to have still further  points of superiority, and thus it was certain to  supersede newum, when neoswii ceased to have  special terrors for the delinquent debtor.   The solutio per aes et libram which we find in  Gaius, as a survival of solutio nesd, was not  the release of nexii/m, but the similar release used  for discharging a legacy per darrmationem or a  judgment debt. Its continued existence is no proof  that neam/rn survived along with it, for in later days  it had nothing to do with the release of borrowed  money. But though nexum proper certainly died  out before the Empire, we have seen' how the  meaning of the word became more vague and com-  prehensive. By the end of the Republic we find  neocum used to describe essentially different trans-  actions, and simply denoting any negotiwm per aes  et libram.   Art. 2. Sponsio and stipvlatio. The origin and   early history of sponsio have already been considered.   There is no authority for Bekker's opinion that sponsio   was enforceable before the XII Tables by the legis   1 See above p. 24.     Digitized by Microsoft®     THREE USES OF SPOHiSIO. 95   actio Sacramento^, nor do we know that it gave  rise to any action, but notwithstanding this fact we  have seen good reason for concluding that it existed  at Rome from the earliest times. As we found that  its origin was religious, and as the XII Tables do  not mention it, we may regard the remedies for a  breach of sponsio as having been regulated by  pontifical law, down to the time when condictiones  were introduced. In the law of this last period  sponsio appears in three capacities :   (1) As a general form of contract adapted to  every conceivable kind of transaction.   (2) As a form much used in the law of pro-  cedure.   (3) As a mode of contracting suretyship.   Its binding force was the same in all these three  adaptations, but its history was in each case different.  Thus sponsio was used as a general form of contract  down to the time of Justinian, though it had then  long since disappeared as a form of suretyship. And  there were statutes affecting the sponsio of surety-  ship which had nothing to do with the sponsio of  contract or of procedure. It will therefore be con-  venient to treat, under three distinct heads, of the  three uses to which sponsio became adapted, remem-  bering always that in form, though not in all its  remedies, it was one and the same institution.   I. Sponsio as a general form of contract.   We have seen that the form of sponsio consisted  of a question put by the promisee and answered  by the promisor, each of whom had to use the   1 AU.i. p. 147.     Digitized by Microsoft®     96 FORMAL CONTRACTS OF THE LATER REPUBLIC.   word spondere. For example : Qu. : " Sponden ticam  gnatam filio uxorem meo ? " Ans. : " Spondeo^." Qu. :  "Centum dari spondes?" Ans.: " Spondeo^." This  form was available only to Roman citizens. But  there subsequently came into existence a kindred  form called stipulatio, which could be used by  aliens also, and could be expressed in any terms  whatsoever, provided the meaning was made clear  and the question and answer corresponded.   The connection between sponsio and stipulatio  is the first question which confronts us. There is no  doubt that sponsio was the older form of the two,  because (i) it alone required the use of the formal  word spondere, (ii) it was strictly iuris ciuilis, where-  as stipulatio was iuris gentium^, and (iii) it had to be  expressed in the present tense (e.g. dari spondes?)  whereas stipulatio admitted of the future tense (e.g.  dabis ? fades ?), which Ihering^ has shown to be a  sign of later date. Since the rise of the tits gentivm,  was certainly subsequent to the XII Tables, we are  justified in ascribing to the stipulatio a comparatively  late origin, though the precise date cannot be fixed  with certainty.   Though stipulatio was a younger and a simpli-  fied form, yet it is always treated by the classical  jurists as practically identical with sponsio. Both  were verbal contracts ex interrogatione et responsione,  and their rules were so similar that it would have  been waste of time and useless repetition to discuss  them separately.   1 Varro, L. L. vi. 7. 70. ^ Qaius in. 92.   3 Gaius loc. cit. * Geist d. B. B. ii. 634.     Digitized by Microsoft®     ORIGIN OF 8TIPVLATI0. 97   The derivation of stipulatio has been variously  given. Isidorus^ derived it from stipula, a straw ;  Paulus Diaconus^ and Varro" from stips, a coin;  and the jurist Paulus*, followed by the Institutes,  from stipulus, firm. The latter derivation is doubt-  less the correct one^ but it does not help us much.  What we wish to know is the process by which a  certain form of words came to be binding, so that  it was distinctively termed stipulatio, the firm trans-  action. Now if we conclude, as Voigt does', that  the stipulatio and the sponsio were both imported  from Latium, their marked difference with respect  to name, age and form must remain a mystery.  Whereas we may solve, or rather avoid, this diffi-  culty by acknowledging that sponsio was the parent  of stipulatio, and that the latter was but a further  stage in the simplification of sponsio which had  been steadily going on since the earliest times.  We have already reviewed the three stages through  which sponsio seems to have passed. Stipulatio in  all probability represents a fourth and wider stage  of development. The binding force of a promise  by question and answer, apart from any religious  form, at last came to be realized after centuries of  use', and as soon as the promise became more  conspicuous than the formal use of a sacred word,  the word spondere was naturally dropped, and with   1 Orig. 5. 24. - s. u. Stipem.   3 L. L. VI. 7. 69-72. * Sent. v. 7. 1.   ^ See Ihering, Geist ii. § 46, note 747, who compares the  German Stab, Stift, bestatigen, bestiindig.   6 lus Nat. II. 238. '' Ihering, Geist ii. p. 585.   B. E. 7     Digitized by Microsoft®     98 FORMAL CONTRACTS OF THE LATER REPUBLIC.   it fell away the once descriptive name sponsio, to  make way for that of stipulatio, now a more correct  term for the transaction. Thenceforward, as a matter  of course, stipulatio became the generic name, while  sponsio was used to denote only the special form spon-  desne? spondeo.   The precise date of the final change is a matter  of guess-work. But as stipulatio was the form avail-  able to aliens^ it was probably the influx of strangers  which made the Romans perceive that their old  word spondere, only available to Roman citizens,  was inconvenient and superfluous. Unless contracts  with aliens had become fairly common, the need of  the untrammelled stipulatio would hardly have been  felt. Therefore it seems no rash conjecture to suppose  that the stipulatio was flrst used between Romans  and aliens, and first introduced about A.V.C. 512*,  the date generally assigned to the creation of the  new Praetor qui inter peregrinos ius dicebat.   As to the form of the stipulatio :   (a) Ihering* and Christiansen* have expressed  the opinion that originally the promisor did not  merely say spondeo, faciam, daho, etc., as in most of  the known instances, but repeated word for word all  the terms of the promise as expressed in the question  put by the promisee. This view is based upon the  passages in Gaius^ and the Digest*, which lay great  stress upon the minute correspondence necessary  between the question and the answer in a vaHd   ' Gai. III. 93. 2 Liu ^^j-^ ^ix.   » Geist II. 582. * Inst, des B. B. p. 308.   •^ in. 92. « 45 Dig. 1. 1.     Digitized by Microsoft®     VARIOUS STIPULATORY FORMULAE. 99   stipulation. It is hard to see how such a rule could  have arisen unless there had been some danger of  a mistake in the promisor's reply, and if this reply  had been confined to the one word spondeo,  promitto, or faciani, a mistake would hardly have  been possible. Hence this view seems highly pro-  bable.   (b) Voigt"^ has given the following account of  the origin of the various formulae.   (i) The form spondesne ? spondeo is the oldest  of all, and dates back into very early times ^ which  is probably quite correct. But in a more recent  work' this view expressed in "lus Naturale" is unfor-  tunately abandoned, and Voigt regards sponsio as a  Latin innovation dating from the fourth century of  the City. This seems surely to place the birth of  sponsio far too late in Roman history.   (ii) The looser form dabisne ? dabo is found in  Plautus*, and was no doubt, as Voigt says^ a product  of the ius gentium and first introduced for the benefit  of aliens.   (iii) Lastly, the origin of the forms promittis ?  promitto, and fades? faciam^, is placed by Voigt  not earlier than the beguming of the Empire. But  his reasons for so doing seem most inadequate. If  the form dabisne? dabo occurs in Plautus, the form  fades? fadam, which is essentially the same, can  hardly be attributed to a later period. And since   1 Ius Nat. IV. 422 ft.   2 See Liu. iii. 24. 5, A.v.c. 295, and iii. 56. 4, A.v.c. 305.   3 Bom. RG. i. p. 43. ■• Pseud. 1. 1. 112, A.v.c. 663.  5 /. N. IV. 424. « Of. Gaius, in. 92. 116.   7—2     Digitized by Microsoft®     100 FORMAL CONTRACTS OF THE LATER REPUBLIC.   prondttam is used by Cicero as a synonym for  spondea/m}, and fidepromittere was an expression  used in stipulations, as Voigt admits, two centuries  before the end of the Republic'-', it seems rash to  affirm that promittere, the shortened phrase, was  not used in stipulations until the time of the  Empire. We may therefore attribute both of these  forms to republican times.   (c) The admissibility of condicio and dies as  qualifications to a stipulation must always have  been recognized, since a promise deals essentially  with the future and requires to be defined.   (d) The insertion of a conventional penalty into  the terms of the contract was probably practised  from the very first, whenever facere and not dare  was the purport of the promise, because the candictio  certi was older than the condictio incerti, and there-  fore for many years an unliquidated claim would  have been non-actionable unless this precaution had  been taken.   We have now seen that verbal contract by ques-  tion and answer, whether called sponsio or stipulatio,  existed long before it became actionable. When it  finally became so is uncertain, though we know  what forms the action took.   (a) Condictio certae pecuniae.   Gains' speaks of a Lex Silia as having introduced  the legis actio per condictionem for the recovery of  certa pecunia credita. This law is mentioned nowhere  else, and its date can only be approximately fixed.   1 Cic. pro Mur. 41. 90. ^ I. N. iv. 424, note 77.   -' IV. 19.     Digitized by Microsoft®     ORIGIN OF PECTNIA CBEDITA.   We know from Cicero^ that pecwnia credita, a re"  money loan, might in his time originate in  ways, by datio (mutuum), expensilatio, or stipulatio.  But we cannot infer from this that the Lex Silia  made all those three forms of loan actionable'', for  mutuum and expensilatio, as will presently be seen,  were certainly of more modern origin than the  condictio certae pecuniae. It appears indeed that  stipulatio was the original method of creating pecunia  credita^: consequently the Lex Silia must have  simply provided for the recovery of loans made by  sponsio or stipulatio. It is noticeable, moreover,  that Gaius speaks as though by this law money  debts had merely been provided with a new action :  he does not imply that stiptdatio or sponsio was  thereby introduced, as Voigt'' and Muirhead' have  ventured to infer. Their view is surely an un-  warrantable inference, for if the Lex Silia had  created so new and important a contract as stipu-  latio, Gaius would hardly have expressed so much  surprise at the creation of a new form of action to  protect that contract. His language seems clearly  to imply that pecunia credita was already known,  and was merely furnished by this law with a new  remedy. We may conclude then that pecunia  credita must have existed before the Lex Silia, and  can only have been created by stipulatio. Stipulatio   ' Rose. Com. 5. 14. ^ Puohta, Imt. 162.   3 Cf. the dare, credere, expensum ferre of the Instrumentum  fiduciae in Bruns, p. 2-51, with the dare, gtipulari, and expensum  ferre of Rose. Com. 5. 13-14, and see Voigt, lus Nat. it. 402.   * Ills Nat. II. 243. ■' R. L. p. 230.     Digitized by Microsoft®      102 FORMAL CONTRACTS OF THE LATER REPUBLIC.   cannot, therefore, have been introduced by this law,  though it probably was thereby transferred from the  religious to the secular code.   The age of the Lex Silia has been variously  given', but there are no trustworthy data, and any  attempt to fix it must be somewhat conjectural.  The only thing we do know is that this law must  have been enacted a considerable time before the  Lex Aquilia of A.V.C. 467, for the latter law pun-  ished" the adstipulator who had given a fraudulent  release, and as this release must have applied to the  stipulatio certae rei of the Lex Galpurnia', it is evident  that the Lex Aquilia must have been younger than  the Lex Calpurnia, which, as we shall see, was itself  younger than the Lex Silia.   We may perhaps approximate even more closely  to the date of the Lex Silia. Muirhead^ has con-  jectured with much plausibility that the introduction  of the condictio certae pecmviae was a result of the  abolition of the nexal penalties, or in other words  that the Lex Silia followed soon after the Lex  Poetilia of A.v.c. 428. There are several strong  points in favour of this hypothesis :   (i) It explains Gaius' difiiculty as to the reason  why condictio was introduced. For when the terrors  of nexum were abolished, it was natural to substitute  some penalty of a milder description and not to let  defaulting debtors go entirely unpunished. Now   1 A.V.C. 311 to 329, according to Voigt, I. N. iv. 401.  " Gai. III. 215.   ' Of. quanti ea res est in Gai. loc. cit. with 13 Dig. 3. 4.  * R. L. p. 230.     Digitized by Microsoft®     PROBABLE OBJECT OF LEX SILIA. 103   this is just what the condictio certae pecuniae,  with its sponsio poenalis tertiae partis, presumably  accomplished, for like neocum it dealt only with  pecunia.   (ii) This hypothesis helps us also to understand  why the condictio certae pecuniae should have been  introduced before the cmidictio certae rei, thus  making a stipulation of certa pecunia actionable,  while a stipulation of res certa had not this protec-  tion. As we found above', the introduction of coin  must have made the stipulatio certae pecuniae a very  convenient substitute for nexiom. It was therefore  natural to give a remedy to this stipidatio and so to  make it take the place of nexum as a binding  contract of loan ; while certa res, never having had  and therefore not immediately requiriag a remedy,  was not protected by condictio until several years  later.   (iii) We can also see why the condictio ceiiae  pecuniae should have been the only condictio fur-  nished with so severe a penalty as the sponsio  poenalis. It was because money loans had been  jealously guarded in the days of nexum, and it was  therefore thought proper to protect the money loan  by stipulation far more carefully than the promise of  a res certa.   All these seem strong points in confirmation  of Muirhead's hypothesis. By connecting stipulatio  and condictio with the downfall of nexum and of its  manus iniectio, we not only get a plausible date for  the Lex Silia, but what is far more important, we  1 p. 94.     Digitized by Microsoft®     104 FORMAL CONTRACTS OF THE LATER REPUBLIC.   obtain a satisfactory explanation of the curious fact  that, while stipulationes were made actionable, they  were not all made so at once.   The forms of condictio under the legis actio system  are not known, but under the formulary system, this  condictio had the following formula: Si paret N^  N'egidium A" Agerio HS X dare oportere, iudesc, iV™  Negidium A" Agerio X condemna. s. n. p. a} Its  peculiar sponsio will be given in another place.  (b) Condictio triticaria or certae rei.   The Lex Calpurnia, which must have preceded  the Leoo Aquilia^ and must therefore have been  enacted earlier than A.v.C. 467, extended the legis  actio per condictionem to stipulations of triticum, corn,  {condictio triticaria) ; and this, being soon interpreted  by the jurists as including every debt of res certa,  gave rise to the condictio certae rei. This new kind  of condictio omitted, for the reason above '-stated, the  sponsio and restipulatio tertiae partis, in place of  which the defendant merely promised to the plaintiff  a numnvus wnus which was never exacted or paid*.  Therefore, as the severer law invariably precedes the  milder, we might be sure that the Lex Silia with its  heavy penalty was older than the Lex Calpurnia  with its nominal fine*, even if Gains had not clearly  led us to this conclusion by the order in which he  mentions the two laws'.   The formula ran thus : Si paret N'^ Negidiwm A"  Agerio tritici optimi X modios dare oportere, qvtanti   1 Gai. IV. 41. Lenel, Ed. Perp. 187. ^ See above, p. 102.   » p. 103. * Voigt, I. N. III. 792.   ' Keller, Civilp. 20. « Gains, iv. 19.     Digitized by Microsoft®     DEVELOPMENT OF OONDICTIO. 105   ea res est, tantam pecuniam, index, iV™ Negidium A"  Agerio condemna. s. n. p. a.   (c) Condictio incerti.   The above condictio triticaria, or certae rei, was  in course of time extended by the interpretation of  the jurists or by the Praetor's Edict to res incertae,  and gave rise to a condictio incerti, which was the  proper action on a stipulation involving facere or  praestare or some other object of indefinite value.  The thing promised might be defined as quanti in-  terest, or quanti ea lis aestimata erit etc.', and it is  plain how much this comprehensive mode of ex-  pression must have increased the adaptability and  general usefulness of the stipulation. In this way,  for instance, the cautio damni infecti and the stipu-  lations of warranty were doubtless always expressed.  The nature of this condictio may perhaps be best  understood from its formula, which was as follows :  Quod A^ Agerius de N" Negidio incertum stipulatus  est, quidquid paret oh earn rem N™ Negidium A"  Agerio dare facere oportere, eius iudex, N™ Negidium  A" Agerio condemna. s. n. p. aJ' This was so far  an advance upon the condictio certae rei that, the  condemnatio here left the damages entirely to the  discretion of the judge; but it was still a stricti  iuris action, in which no equitable pleas were ad-  mitted on the part of the defendant.  {d) Actio ex stipulatu.   We have seen that the condictiones certae pecuniae  and certae rei were due to legislation, and the con-  dictio incerti to juristic interpretation: it remains  1 Voigt, RG. I. pp. 601-2. 2 (jai. iv. 131, 136.     Digitized by Microsoft®     106 FORMAL CONTRACTS OF THE LATER REPUBLIC.   to inquire what was the origin of the actio ex  stiffulatu, i.e. the honae fidei action on a stipulation  for incertwm dare or for certwm facere^, which  completed this series of legal remedies. Its ap-  pearance was an event of great importance to the  subsequent history of Contract, since it applied ex-  clusively to stipulations containing a honae fidei  clausula, and it was by means of this action alone  that such stipulations were enforced I Voigt's ex-  planation of its origin is that the actio ex stipulatu  was devised as the proper remedy for fidepromissio  and for the cautio rei uxoriae introduced in A.V.C.  523'. But it is very doubtful if the date can be  fixed with such exactness. There is nothing to  show that the actio ex stipulatu did not exist earlier  than those particular forms of stipulation ; and if it  had been, as Voigt thinks, the original action on a  fideproTnissio, it would probably have been known as  actio ex fidepromisso or by some such descriptive  name.   The introduction of the doli clausula is the most  important event in the whole history of the stipulatio,  yet the exact moment at which this took place is  hard, if not impossible, to fix. Girard* attributes its  invention to C. Aquilius Gallus. But if this had  been the case, Cicero^ would hardly have overlooked  the fact. On the other hand Voigt, who rightly  identifies the actio ex stipulatu with the action on a   1 Bethmann-Hollweg, C. P. p. 267.   2 44 Dig. 4. 4. fr. 15-16.   3 I. N. IV. 407. Gellius iv. 1, 2.   * N. Rev. Hist, de Droit, xiii. 93. ^ Off. in. 14. 60.     Digitized by Microsoft®     THEORIES AS TO ACTIO EX STIPVLATV. 107   doli clausula, and regards the two as inseparable,  places the introduction of doli clausula earlier than  the time of Cicero, because that writer mentions the  actio ex stipulatu among the " indicia in quibus ad-  ditur ' ex fide bona^.' " The introduction of the first  clausida doli was, according to Voigt", made by the  words fides, in fidepromissio, and "quod melius aequius  sit" in the cautio rei uxoriae^. This conjecture is  unsupported by evidence ; for though we know that  cautio rei ihxoriae* and fidepromissio^ were both  actionable by the actio ex stipulatu, and therefore  must have contained doli clausulae, we have no  right to assume that they were the first of their  kind.   We cannot, moreover, follow Voigt in supposing  the actio ex stipidatu to have been expressly invented  for fidepromissio and cautio rei uxoriae. We have to  presuppose the existence of a condictio incerti before  the doli clausula could become actionable, since a  claim of damages for dolus was necessarily an in-  certum; and there is no reason why the actio ex  stipulatu should not have been developed from the  condictio incerti by mere interpretation. Its essential  connection with the stipulatio containing the clausula  doli may readily be admitted, but we cannot be  certain what were the first stipulations containing  clausulae of the kind.   The doli clausidae are well summarized by Voigt '^  as follows :   1 I. N. IV. 413. 2 I. N. IV. 407.   3 Boeth. ad Top. 17. 66. " 23 Dig. 4. 26.   s 45 Dig. 1. 122. « I. N. iv. 411.     Digitized by Microsoft®     108 FORMAL CONTRACTS OF THE LATER REPUBLIC.   (i) " Quod melius aequius erit," as in " cautio  rei uxoriae."   (ii) " Fide," in fidepromissio.   (iii) " Si quid dolo in ea re factum sit^."   (iv) "DoluTn Tnalum, huic rei abesse afuturuinque  esse spondesne^ ?"   (v) " Gui rei si dolus malus non abest, non  abfuerit, quanti ea res est tantam pecuniam, dari  spondes^ ? "   The date of each of these forms is, however,  impossible to determine. The cases of contracts by  stipulation in which doli clausulae are found have  been collected by Voigt*, but need not be enumerated  here.   The effect of the clausula was to convert the  action on the stipulation containing it from a stricti  iuris action into a bonaefidei action, in which equitable  defences might be entertained by the judge. This ex-  pansion was effected by introducing the words " dare  facer e oportere ex fide bona " in the intentio of the  action. If "ex fide bona " had not appeared in the  formula of an actio ex stipulatu, the action would  simply have been a condictio incerti. It seems there-  fore reasonable to suppose that the actio ex stipulatu  was nothing more than a development of the condictio  incerti, and that the words ex fide bona, perhaps  suggested by the actio emti, were inserted to suit the  liberal language of the stipulation.   In praetorian stipulations the doli clausula was     1 4 Dig. 8. 31. ^ 46 Dig. 7. 19, 50 Dig. 16. 69.   3 46 Dig. 1. 38. fr. 13. " I. N. iv. 416 ff.     Digitized by Microsoft®     EXCEPTIO DOLI UNCONNECTED WITH OLA VSVLA. 109   an usual part of the fonnula; e.g. in cautio legis  Falcidiae^, stipulatio iudicatum soltii', stipulatio ratam  rem haberi^, etc. But in conventional stipulations it  was purely a matter of choice whether the doli  clausula should be inserted or not.   We must not fancy that the actio de dolo and  the exceptio doli, which Cicero attributes to his  colleague C. Aquilius Gallus', had anything in com-  mon with the actio ex stipulatu based upon a  clausula doli^. The former remedies were a pro-  tection against fraud where no agreement of a  contrary kind had been made", whereas the action  on a stipulation containing the clausula doli was  available only when dolus maltts had been specially  excluded by agreement. Hence it follows that  where the stipulation had omitted the clausula doli  there can have been no remedy for dolus until the  great reform introduced by Aquilius Gallus.   As soon as stipulations of all kinds had thus  become actionable, and had probably passed out of  the hands of the Pontiffs into the far more popular  jurisdiction of the Praetor, the law of contract  received an extraordinary stimulus, and we find the  stipulation producing entirely new varieties of obli-  gation, though its form in each kind of contract re-  mained of course substantially the same. Here are  some of the purposes for which stipulatio was em-   1 35 Big. 3. 1. = 46 Big. 1. 33.   » 46 Big. 8. 22. fr. 7.   ' Off. in. 14. 60. Nat. B. in. 30. 74.   » Voigt, I. N. 3. 319.   ' See the case of Canius, in Cio. Off', in. 14. 58-60.     Digitized by Microsoft®     110 FORMAL CONTRACTS OF THE LATER REPUBLIC.   ployed, apart from its uses in procedure and surety-  ship.   (1) It produced a special form of agency by  means of adstipulatio^. The promisee who wished  a claim of his to be satisfied at some far-off period,  when he might himself be dead, had only to  get a friend to join with him in receiving the  stipulatory promise. This friend could then at any  time prosecute the claim with as good right as the  principal stipulator, and the law recognised him as  agent for the latter. Even a slave could in this way  stipulate on behalf of his master*.   (2) In consequence of its universal adaptability,  the stipulation gave rise to nmiatio. The reducing  to a simple verbal obligation of some debt or  obligation based upon different grounds (e.g. upon a  sale, legacy, etc.) was accomplished by stipulatio, and  known as expromissio debiti proprii.   (3) It created a rudimentary assignability of  obligations by virtue of delegatio, another form of  nouatio. In the one case, the debtor was changed,  and the creditor was authorised by the former  debtor to stipulate from the new debtor the amount  of the former debt : in the other case {expromissio  debiti alieni) the creditor was changed, and the new  creditor stipulated from the debtor the amount owed  by him to the former creditor.   (4) It also created the notion of correal obli-  gation, by which two or more promisors in a  stipulation made themselves jointly responsible for  the whole debt, and so gave additional security to   1 Gai. III. 117. = .? Inst. 17. 1.     Digitized by Microsoft®     FKUITS OF 8TIPVLATI0. Ill   the promisee. The effects of this will be seen in a  later section.   (5) It served to embody in a convenient shape  any special condition annexed to a separate contract  — e.g. a promise to pay the price agreed upon in  a sale', and the stipulationes simplae et duplae  annexed to sales of res nee mancipi^. Thus an  enforceable contractus adiectus could be made on the  analogy of a pactum adiectum.   (6) It clothed in an actionable form so many  different kinds of agreements that it would be  impossible to exhaust the list. For instance, agree-  ments as to interest^ wagers, the promise of a  dowry^, the making of a compromise^ the creation of  an usufruct, could all be thrown into stipulations  either single or reciprocal, and thus turned into  binding obligations.   (7) Most of the events in the history of this  immense development of stipulatio are impossible to  fix at any given period, though the attempt to do so  has been often made. Yet the invention of one  famous stipulation can be exactly dated, from its  bearing the name of Cicero's colleague, C. Aquilius  Gallus, and having therefore been invented by him  in the year of his Praetorship^. This Aquilian  formula, which operated as a general release of all  obligations, and which the Institutes' give us in full,  is an excellent instance of the usefulness of the  stipulation, and it also clearly shows what long and   1 Cato, R. R. 146. ^ Varro, R. R. ii. 3.   ' Plant. Most. 3. 1. 101. * See p. 32.   « Plant. Bacch. 4. 8. 76. « A.v.c. 688. ' 3 Inst. 29. 2.     Digitized by Microsoft®     112 FORMAL CONTRACTS OF THE LATER REPUBLIC.   elaborate forms this contract sometimes assumed  in later times, so that all kinds of terms, de-  scriptions or warranties might without difficulty be  incorporated in a single comprehensive formula.  It was probably this increasing length of stipu-  lations which caused them to be put in writing,  and induced lawyers to publish formulae in which  they should be expressed. Both of these results  had already taken place in the time of Cicero. He  not only speaks of written stipulations, but also  describes the composition of stipulatory formulae as  one of the chief literary occupations of a leading  lawyer'. We know from a constitution of the  Emperor Leo, which changed the law in this respect,  that the written stipulations of the Republic and  early Empire were merely put into writing for the  sake of evidence". The writing in itself constituted  no contract, and raised no presumption in favour of  the existence of a contract; but the written stipu-  lation had to conform with all the rules of the  ordinary spoken stipulation, since it was nothing  but a spoken stipulation recorded in writing.   The legislative changes of the period were mostly  devoted to modifications in the stipulations of  suretyship. But in a few cases the ordinary stipu-  lation was itself affected.   (i) By the Lex Titia of A.v.c. 416—426° stipu-  lations for the payment of money lost at gambling  were declared void.   (ii) Various laws against usury were enacted,   1 de leg. i. 4. 14. 2 3 Inst. 15. 1.   ' Voigt in Phil. Hist. Ber. der S. G. der W. xiii. 257.     Digitized by Microsoft®     SPONSIO IN PROCEDURE. 113   all of which affected the stipulation, since that was  the mode in which fenus was usually contracted.   (ui) The Lex Cinaia de mwieribus of A. v. c. 550,  the object of which was to restrain lavish gifts to  pleaders and public men, naturally limited all stipu-  lations between parties within range of the prohibi-  tion, and in the corresponding condictio gave rise to  the exceptio legis Ginciae, which probably ran thus :  ...si in ea re nihil contra legem Ginciam factum  sit...   (iv) The Praetor C. Aquilius Gallus, as above  mentioned^, instituted in his Edict the exceptio doli  mali, and thereby nullified stipulations which, how-  ever perfect ia form, had been procured by fraud.  This exceptio was of course inapplicable to cases in  which the stipulation contained a clausula doli.   II. Sponsio in the law of Procedure.   The original function of the processual sponsio  seems to have been that of helping to decide the  question at issue by expressing it in the form of a  wager. As a common feature of practice, sponsio  made its appearance in many other different connec-  tions, and sometimes developed into the more modern  stipulatio. We find it employed :   (i) As a means of obtaining a decision by a  wager, in which the contention of either party was  succinctly stated and so submitted to the judge.  This was known as sponsio praeitodicialis.   (ii) As a means of fixing a penalty, as well as  of obtaining a decision, in (a) the condictio certae   1 p. 109.  B. E. 8     Digitized by Microsoft®     114 FORMAL CONTRACTS OF THE LATER REPUBLIC.   pecuniae or (6) the interdicts, in which case it was  known as sponsio poenalis.   (iii) As a mode of giving security ; for instance  in the uindicatio, where we find the stipulatio pro  praede litis et uindiciarum.   Bekker's classification^ does not exactly correspond  with this one. He divides processual sponsiones into  (A) sponsiones made in the course of a trial,   (a) as to the chief question,   (6) as to conditions and incidental matters,  and (B) sponsiones made apart from a trial,   (a) with a view to some future trial,   (b) with no such view.   The objection to this classification seems to be  that the whole of class (B) were not properly pro-  cessual sponsiones at all.   1. Sponsio praeiudicialis' was a promise to pay  a fixed sum, made by the plaintiff to the defendant,  and conditioned upon the plaintiff's defeat. It was  accompanied by a similar promise (restipulatio) on  the part of the defendant, conditioned upon his defeat.  These mutual sponsiones were in fact nothing more  than a bet on the result of the action. They generally  involved a merely nominal sum, and were perhaps first  introduced in the actio per sponsionem in rem, as a  means of settling the question of ownership without  employing the larger and more costly sacramentum  of five hundred asses'. The date of their origin is  impossible to fix, but the custom of making such  sponsiones and having them decided by a judge   1 Akt. I. 257. 2 Gai. iv. 94. 165.   3 Baron, p. 403.     Digitized by Microsoft®     SPONSIO PRAEIVDIGIALIS. 115   seems to have been one of great antiquity, and  must have existed long before the sponsio became  armed with any condictio. The very notion of a  bet submitted to a judge as a means of deciding  rights of property seems, as Sir Henry Maine has  said ', to savour of the primitive time when the judge  was simply a man of wisdom called in to arbitrate  between two disputants. Moreover, it is hard to  imagine that the actio per sponsionem in rem could  have been introduced in any but the most ancient  times, when in Cicero's age there were the rei  uindicatio sacramento and the far simpler m uin-  dicatio per formulam petitoriam to accomplish the  same objects There is therefore every probability  that the actio per sponsionem was at least as old as  the legis actio sacramento. According to Voigt* the  procedure per sponsionem was the original form also  of the actio Publiciana introduced in A.v.C. 519. In  Cicero's time it was still a favorite method of pro-  cedure for all sorts of litigation^.   (a) In questions as to property the plaintiff  might choose whether he preferred to bring an actio  per formfublam, petitoriam, or one per sponsionem^.  If he chose the latter course, the defendant was  compelled sponsions se defenders.   (b) In really trivial praeiitdicia the question  was stated in the formula and sent straight to the  i^tdex without any condemnation, but the procedure   1 E.H. of I. 259.   2 KeUer, C. P. § 28. ^ j. j^. ly. 506. " e.g. Caec. 8.   5 Lex Ruhr. e. 21, 22; Cic. 2 Verr. i. 45. 115; Gaius, iv. 91.  ^ Gai. IV. 44.   8—2     Digitized by Microsoft®     116 FORMAL CONTRACTS OF THE LATER REPUBLIC.   in this case was not necessarily based upon a sponsio  praeiudicialis and might be a simple preliminary  inquiry ordered by the Praetor.   The sponsio praeiudidalis thus worked in a  peculiarly roundabout way; its penalty was nomi-  nal and not therefore its real object, and it brought  about a decision on the main question by treat-  ing that question as a thing of secondary im-  portance.   2. Sponsio poenalis (a) in the condictio, was pecu-  liar to the legis actio per condictionem introduced by  the Lex Silia. It was accompanied by a restipulatio,  so that either party to the action promised to the  other a penalty of one-third ' in the event of losing  his case. Eudorff" reconstructs the formula of this  sponsio as follows : Si pecuniam certam creditam qua  de re agitur mihi debes, earn pecuniam cum tertia  parte amplius dare spondes? But this seems in-  correct, since from Cicero's language' we gather  that the sponsio was for the tertia pars only; the  sum in dispute plus one-third is never mentioned.  The formula then was probably as follows: Si  pecuniam certam creditam qua de agitur mihi debes,  dus pecuniae tertiam partem dare spondes ? Hence  Rudorff* seems also wrong in stating that the con-  demnatio of the formula in the corresponding condictio  must have involved the principal sum plus one-third.  Voigt ^ more correctly holds that the condemnatio can  only have involved the summa sponsionis. We can   1 Cic. Base. Com. 5. 14. 2 Ed. Perp. p. 103.   '' " legititnae partis sponsio facta est." Rose. Com. 4. 10.  * Rom. RG. II. 142. ^ j_ j^ m 741^     Digitized by Microsoft®     SPON^SIO POENALIS. 117   see that, as Gains '■ implies, this sponsio was just as  much praeiudicialis as that of the actio per sponsio-  nem, giving as it did a ground for the decision of the  main question ; but it was also distinctly poenalis, be-  cause the sum which it involved was worth having  and worth extorting from the unsuccessful party,  and therefore the condemnatio was carried out in  the usual manner. The principal sum in dispute  was then no doubt quietly paid, since the decision as  to the sponsio tertiae partis had also settled to whom  the disputed sum belonged.   (b) In the private interdicts (possessoria and  restitutoria) if the party to whom the interdict was  addressed chose to dispute it, he might do so by  challenging the plaintiff to make a sponsio and  restipulatio, the rights of which should be deter-  mined by recuperatores. This sponsio differed from  the former (1) by being purely poenalis and having  no trace of praeiudicium for its object ; (2) by being  in factwm concepta ^.   The origin of these two uses of sponsio cannot be  dated, in the case of (a) because we do not know the  date of the Lex Silia, and in the case of (6) because  we do not know when the possessory interdict was  first granted by the Praetor. But it is fairly certain  that the sponsio poenalis of the interdict was more  modern than the sponsio poenalis of the condictio,  partly because it had no sort of connection with a  praeiudicium, which seems to have been the original  object of the processual sponsio, and partly because  it was in factum concepta.   1 IV. 93, 94. 2 Gai. iv. 166; Cic. Caec, 8. 23.     Digitized by Microsoft®     118 FORMAL CONTRACTS OF THE LATER REPUBLIC.   3. Another purpose for which the sponsio was  adopted in procedure was to give bond against pos-  sible losses. It thus furnished a substitute for the  old form of obligation contracted by the praes in  real actions. The stipulatio pro praede litis et uindi-  ciarum, accompanied by sureties ', was given by the  plaintiff who wished to bring an actio per sponsionem  in rem, or who disputed an interdict, and the amount  promised in the stipulation was double the value  of the property in dispute.   Another contract of the same kind was the  stipulatio ivdicatum solui ', by which the plaintiff in  an actio per formulam petitoriam obtained a promise  from the defendant that he would pay up the value  of the property in dispute and of its fructus, in the  event of being defeated in the action.   Voigt gives imaginary formulae for these two  stipulations", but in reality we do not know much  about them. Stipulations of this kind were not  peculiar to the law of procedure. They were simply  varieties of the cautio, a very common method of  securing future rights, and they had their counter-  part in the cautio damni infecti, cautio Muciatm,  cautio legis Falcidiae and all the praetorian stipula-  tions. The origin of the cautiones in general cannot  however be dated : we know merely that they must  have been invented subsequently to the introduction  of the condictio.   III. Sponsio as a means of Suretyship.   The introduction of the new idea of correal obli-   1 Cic. 2 Verr. i. 45. 115; Gai. iv. 91-94.   2 46 Dig. 7. 20 ; Gai. rr. 89. ' Im Nat. in. 588 and 820.     Digitized by Microsoft®     SPOJfSIO IN SURETYSHIP. 119   gation which resulted from the use of the stipulation,  naturally led to the use of the stipulation as a mode  of suretyship. For if three sponsores promised the  same sum to the same stipulator, the latter obviously  had three times as good security as if he had put  his question to one sponsor instead of to three.   1. The consequence was that sponsor soon  acquired the special meaning of a co-promisor or  surety, and this change probably took place soon  after the sponsio became actionable by the Lex Silia.  But if the surety -sponsor had had no recourse against  the principal-spojisor whose debt he had been com-  pelled to satisfj"^, his case would have been hard indeed.  To provide against this hardship, the Lex Publilia '  of A. V. c. 427 enacted :   (a) That the surety-spo?iso?' might make use  of an actio depensi against the principal debtor for  the amount spent on his behalf   (6) That the mode of procedure in this actio  depensi should be the legis actio per manus iniec-  tionem, and that the penalty should be duplum^.   (c) That the principal debtor should however  have six months' grace for the repayment of his  surety, but   (d) That a surety who paid a gambling-debt on  behalf of his principal should forfeit his right of  action.   This law is alluded to by Plautus, and was  clearly prior to the introduction of fidepromissio.   1 Voigt in Phil. Hist. Ber. der k. s. Ges. d. Wiss. xlii. p. 259.   2 Gai. IV. 22. 171.     Digitized by Microsoft®     120 FORMAL CONTRACTS OF THE LATER REPUBLIC.   In later times the surety had in the actio mandati  a further remedy against the principal sponsor.   2. About the beginning of the fifth century, as  new forms of stipulatio grew up alongside of the old  sponsio, another sort of suretyship was introduced  under the name oi fidepromissio. It was so called  because the sureties entered into a stipulation con-  taining the words : "Jide tua promittis ? fide mea pro-  mitto." The new form was no doubt devised for the  benefit of foreigners and marked the further growth  of ius gentium. It seems to have been treated as  exactly equivalent to sponsio, for sponsio as well as  fidepromissio could only be used to secure a verbal  obligation \ Since it is coupled with sponsio in the  Lex Apideia, and since the heirs of sponsores and  fidepromissores were both alike free from the obliga-  tion of their predecessors ^ it is fairly certain that  the actio depensi and inanus iniectio of the Leoo  Publilia must have been extended to fidepromissio  by interpretation '. The fidepromissor also had the  remedy of the actio mandati, but this was of later  origin.   The Lex Apuleia de sponsoribus et fide promis-  soribus of A.v.C. 525 ^ applying to both Italy and  the provinces, gave to any sponsor or fidepromissor  who had paid more than his aliquot share of the  principal debt a right to bring the severe actio  depensi against each of his co-promisors to recover  the amount overpaid. This law, giving as it did  protection to the sponsor against his co-sponsor, was   ' Gai. III. 119 ; iv. 137. 2 Gai. in. 120.   ' Gai. III. 127. " Voigt, I. N. iv. 424.     Digitized by Microsoft®     FIDEPROMISSIO. 121   the natural complement to the Lex Puhlilia which  had already secured him against the principal  debtor.   The object of the next law, Lex Furia de sponso-  ribus et fidepromissoribus of A.V.c. 536 \ is rather  obscure, but it seems to have re-enacted the Lex  Apuleia with reference to Italy only, and probably  provided the spmisor with a more thorough mode of  redress. What this mode was the language of Gains ^  does not make plain ; but Moyle is no doubt wrong  in asserting ' that it was the actio pro socio, unmis-  takably of much later origin. Its only clearly new  enactment was that sponsores or fidepromissores in  Italy, whose guarantee was for an unlimited period,  should be liable for two years only. This limited  liability Voigt thinks was perhaps borrowed from  the rules applying to the uas.   Lastly, the Lex Cicereia (Studemund) of uncertain  date, but which must have been passed before  A.V.c. 620, since it ignored fideiussio, gave further  protection to sureties by enacting :   (<x) That any creditor who secured his debt by  taking sponsores or fidepromissores must announce  the amount of the debt and the number of the  sureties before they gave their adpromissio.   (b) If he failed to do this, any surety might  within 30 days institute a praeiudicium to inquire  into his conduct ; and if the judge declared that the  required announcement had not been made, all the  sureties were freed from their liability*. This law   1 L. Furius Philue was Praetor in that year. Voigt, I. N. iv. 424.   2 ni. 122. 2 Inst. p. 411, note. * Gai. iii. 123.     Digitized by Microsoft®     122 FORMAL CONTRACTS OF THE LATER REPUBLIC.   was subsequently, we know, extended by interpreta-  tion to fideiussores.   3. A third form of suretyship was at last de-  vised, by which obligations other than verbal ones  could be similarly secured. This was done by a  stipulation containing the words "fide tua ivbes ? fide  mea ivheo" and it was hence known as fideiussio.  It must have been iuvented about the beginning of  the sixth century, and was doubtless needed, as Voigt  suggests^, in order to provide a form of suretyship  for the newly invented real and consensual con-  tracts ". Its chief points of difference from the other  two forms were that (a) it applied to all kinds of  contractual obligations ; (6) the heir of the fideiussor  was bound by the same obligation as his predecessor ;  and (c) the provisions of the foregoing legislation as  to sponsio and fidepromissio did not as a rule apply  to fideiussio. The only point of resemblance was  that the fideiussor, like the sponsor and fidepro-  missor, had the actio mandati^ against his principal,  whereas the sponsor and probably the fidepromissor  had the actio depensi of the Lex Puhlilia in addition  to the more modem remedy.   The Lex Cornelia mentioned by Gains * as affect-  ing all sureties alike, whether sponsores, fidepromis-  sores or fideiussores, has been shown by Voigt ' to be  a part of the Lex Cornelia swmtuaria of A.V.C. 673.  Two sections of this act provided :   (i) That no surety should validly become re-   1 I. N. IV. 425. 2 Gai. ni. 119.   » Gai. m. 127. » in. 124.   ° Phil. Hist. Ber. der k. s. Ges. der Wiss. xlii. p. 280.     Digitized by Microsoft®     BXPMNSILA TIO. 123   sponsible for more than two million sesterces > on  behalf of the same person in any given year. Except  in the case of dos^, whatever liability was contracted  over and above that amount was void.   (ii) That no suretyship of any sort should be  valid when given for a gambling debt I   In thus tabulating all the laws on this subject,  we must not omit to mention the rule applying to  all forms of suretyship alike, that if the surety had  guaranteed a lesser sum than the principal debt, his  guarantee held good, but if a larger sum or a differ-  ent thing, the guarantee became void.   In conclusion, it is very remarkable how largely  the law of suretyship was developed by means of  legislation. The reason was, that while sufficient  means existed for enforcing the mutual obligations of  debtor and creditor, there were no rules to regulate  the relations of debtor and surety, or of sureties  among one another. The old uadimonium was ap-  parently inadequate, while the newer uadimonium,  as we saw, was but a form of stipulatio, and the  ordinary condictio would clearly have been inapplic-  able to cases of this kind. Hence it became neces-  sary that legislation should intervene.   Art. 3. EXPENSILATIO. So many irreconcilable  statements have been made as to the nature of this  peculiarly Roman contract" that no one can hope  to describe it with perfect accuracy. Confident   1 20,000 according to Dauz, B. BG. ii. 83.   2 Gai. m. 124-5. ^ Voigt, Bom. BO. i. 616.   * See a full summary of the various opinions in Danz, B. BG.  II. pp. 43-60.     Digitized by Microsoft®     124 FORMAL CONTRACTS OF THE LATER REPUBLIC.   assertions on the subject serve only to show our  real ignorance, and ignorant we must be, owing to  the vagueness of the evidence. Yet it is only as to  the form of the contract that much controversy has  prevailed. Its operation and its history are tolerably  certain.   Form: Our ignorance respecting the mode in  which the contract was made is partly due to  the fact that tabulae, which meant account-books  in general, meant also a chirograph, or a written  stipulation, or an ordinary note-book'. We can  never be quite sure in what sense a technical term  of such ambiguity is used in any given passage.  Everyone agrees that the entry of a debt in the  creditor's account-book imposed a correspbnding  obligation upon the debtor, and the theory that  debts were entered for this purpose in separate  documents has been exploded ever since Savigny'''  refuted it. But the question so difficult to answer  is this : what sort of account-book was the codex in  which these binding entries were made ? We gather  from Cicero's speech for Roscius the actor that there  were in his day at least two principal books in general  use, (1) aduersaria ', and (2) codex or tabulae rationwm.  The former was a day-book, in which the details of  every-day business were jotted down, while the latter  was a carefully kept ledger, containing a summary  of the household receipts and expenditure, copied at  regular intervals from the aduersaria. These two   1 See Wunderlich, Liu. oblig. p. 19.   s Verm. Schrif. i. 211 ff.   ' Also called ephemeris. Prop. iii. 23. 20.     Digitized by Microsoft®     THEORIES OF BOOK-KEEPING. 125   books were also used by bankers (argentarii) ; and in  their codew or ledger were entered their accounts-  current with their different customers '. Similarly in  the codex of the householder there were probably  separate accounts, on separate folios, under such  heads as ratio praedii, ratio locitlorum, &c.^ There  was sometimes used a book known as (3) kalendanum,  in which the interest on loans was computed and  entered ', the making of loans at interest being  hence called kalendarium exercere.   (a) Some writers are of opinion that these  book -debts were entered by the creditor in the main  codex, and that this codex was a mere cash-book.  In that case, unless the debt was a loan actually  paid in cash, it must have been entered on both  sides of the account, debtor as well as creditor,  otherwise the book would not have balanced. This  twofold entry is said to have been called transcriptio;  and nomen transcripticium would accordingly have  been the name applied to an}' debt contracted in  that manner. The weakness of this theory lies in the  clumsiness of the alleged twofold method of entry;  we can scarcely believe that an imaginary receipt  would have been credited in the account simply  for the purpose of making both sides balance. More-  over it is unwise to assume, as these writers do  in support of their theory, that the Roman method  of keeping accounts was an easy matter and therefore  needed but few books ; for in a large town house, or  on a large estate with bailiffs, tenants and slaves to   1 2 Big. 13. 10 and 2 Dig. 14. 47. - 33 Dig. 8. 23.   3 12 Dig. 1. 41 and 33 Dig. 8. 23.     Digitized by Microsoft®     126 FORMAL CONTRACTS OF THE LATER REPUBLIC.   be provided for, it seems far more likely that the  accounts should have been elaborate and the account-  books numerous.   (6) According to Voigt, book-debts (nomina)  were entered in a (4) codex accepti et expensi  kept for the express purpose. Whether such a  fourth book existed, or whether the rationes accepti  et eccpensi were kept as a separate account in the  main codex rationum, is a question which our  authorities hardly enable us to answer. This  does not however seem very important, and it is  certainly impossible to tell in any given passage  whether the author is speaking of the main codex  (2), or of the codex accepti et expensi (4), which  Voigt supposes to have been a distinct book. His  theory is plausible, for codex accepti et expensi would  be a very natural name for a book containing only  expensa lata and accepta lata. But we may fairly  doubt the existence of this fourth book, partly be-  cause there is no passage which clearly distinguishes  it from the other account-books, and partly because  it is hard to see why the books of a Roman house-  hold, though clearly numerous, should have been  thus needlessly multiplied. Why should not 'no-  mina facere'-' have meant " to open an account"  with a man, and why could not such an account  have been opened as well on a folio of the prin-  cipal ledger as on a folio of the imaginary codex  accepti et expensi ? Perhaps a banker may have  found it worth his while to keep, as Voigt supposes,  a separate book for his loans and book-debts, but we  1 Cic. 2 Verr. i. 36. 92 ; Seneca, Ben. in. 15.     Digitized by Microsoft®     NATURE OF TRANSCRIPTIO. 127   cannot imagine that this would have been the common  practice of ordinary householders, when their codex  would have done equally well.   Eaypensilatio was the name of the transaction,  while the entry itself was called nomen; and the  term nomen transcripticium, which has been ex-  plained as the equivalent of nomen, because the  entry was transcribed from the aduersaria into the  codex, or because it was copied into both sides of the  account, seems rather to have denoted only a nomen  of a novatory character'. That nomen could produce  an original obligation is proved by the cases of Visel-  lius Varro" and of Canius' in which there is no  mention of transcriptio. Further Gaius clearly im-  pKes* that the nomen transcripticium was but one  instance of the use of expensilatio, and the cases  cited by him are purely novatory. Voigt therefore  is probably right in distinguishing the ordinary  nomen which created an obligation, from the nomen  transcripticium, which novated an obligation already  existent. If so, the name transcripticium comes from  the fact that   (a) a debt entered in one place as owed by Titius  might be transcribed into another part of the codex  as owed by Negidius (transcriptio a persona in per-  sonam), or   (h) a debt owed by Negidius, on account of (e.g.)  a sale, might be embodied in an expensilatio and  thus converted from a honae fidei into a stricti iuris   1 See Gaius in. 128. ^ Val. Max. vni. 2. 2.   ^ Cic. Off. III. 14. 59.   * " ueluti nominibus transcripticiis ," in. 130.     Digitized by Microsoft®     128 FORMAL CONTRACTS OF THE LATER REPUBLIC.   obligation by being entered in the codex {transcriptio  a re in personam).   Some passages are supposed to describe the entry  of book-debts in the books not only of the debtor and  creditor, but of third persons also' ; but it is difficult  to imagine that any man would have entered in the  midst of his own accounts a record of transactions  which did not actually concern him. Here again we  may believe that the ambiguity of the word tabulue  has led the commentators astray. What they have  taken for the account-books of a third party may  have meant simply his memorandum or note-book.  Salpius^ has endeavoured to explain away the  difficulty by asserting that these tabulae of third  parties really mean in every instance the tabulae of  either debtor or creditor. But the passages do not  seem to be capable of bearing such an interpretation,  and it appears far more likely that the word tabulae  has caused all the difficulty.   To summarise then this view of the Literal  Contract, we may believe it to have been made by  an entry written by the creditor on a separate folio  of the codex (2) or chief household ledger, and that  its form was very probably that given by Voigt' as  follows :   "HS X a Numerio Negidio promissa tfcc. expen-  sa Numerio Negidio fero in diem " ; whereupon the  debtor might, if he liked, make this corresponding  entry in his codex: "HS X Aulo Agerio promissa Jkc,  Aulo Agerio refero in diem,."   1 E.g. Cio. Att. IV. 18; Rose. Com. i.l; de Or. ii. 69. 280.   2 Novation, p. 95. 3 Bam. BG. i. 64.     Digitized by Microsoft®     FOKM OF ENTRY. 129   In cases of novation, the form would be as follows :   Creditor: "HS X a Lucio Titio dehita expensa  Numerio Negidio fero in diem" (transcriptio apersona  in personam), or else : "HS X a Numerio Negidio ex  emti causa dehita expensa Numerio Negidio fero in  diem," {transcriptio a re in personam). As in the  previous case, the debtor might make similar entries  in his codex.   Having thus opened an account, which could  only be done with the authorisation of the debtor,  the creditor would naturally enter on the same page  such items as payment of interest on the debt,  payment of the principal on account, &c. According  to Voigt, the entries showing repayment of the  principal would be made in the following form :  "HS X a Numerio Negidio dehita accepta Numerio  Negidio fero." Such an entry constituted a valid  release and went by the name of acceptilatio. Voigt'  thinks that the acceptilatio, as here given, was made  first by the debtor, and that the creditor followed him  with a corresponding accepti relatio. But the word  acceptum seems rather to imply that the release was  looked upon from the creditor's point of view. It is  therefore more likely to have been the creditor who  took the initiative in entering the acceptilatio, just  as he did in enteiing the expensilatio, while the debtor  perhaps followed him with an accepti relatio.   We know from Cicero^ that expensilatio could be  used to create an original obligation, while Gaius  tells us that it was much used for making an assign-  ment or a novation. Where however a loan made in  1 ib. p. 65. 2 Off. III. 14. 58-60.   B. E. 9   Digitized by Microsoft®     130 FORMAL CONTRACTS OF THE LATER REPUBLIC.   cash was entered in the creditor's book, the contract  was regarded as a case not of expensilatio but of  mutuum, and the entry was called nomen arcarium}.  This name seems to have come from the fact that  the money was actually drawn from the area or  money-chest^; and in such case the entry on the  creditor's books constituted no fresh obligation, but  served merely as evidence of the mutuum,.   History: The old theory of its origin, given by  Savigny and Sir Henry Maine, is that ecopensilaiio  was a simplified form of neacum. They argued that  the word expensum pointed clearly to the fiction  of a money -loan made by weight. But they never  succeeded in explaining how it happened that the  nexal loan should have produced a contract so  strangely difierent from itself.   The newer theory, which Voigt has ably set  forth ^ is far more intelligible and agrees with all  the facts. Its merit lies in recognising expensilatio  as a device first used by bankers and merchants  and subsequently adopted by the rest of the com-  munity. Nothing indeed could be plainer than the  commercial origin of expensilatio. Like the negoti-  able instrument of modem times it is a striking  instance of the extent to which Trade has moulded  the Law of Contract. This institution probably did  not originate at Rome, but the Greek bankers of  Southern Italy may have adopted and used it  centuries before we hear of its existence. It seems  to have been first iatroduced* by the Greek argen-   1 Gaius in. 131. ••' Cic. Top. 3. 16.   3 Z. N. II. 244 ft. * Voigt, mm. RG. i. 60.     Digitized by Microsoft®     ORIGIN OF EXPENSILATIO. 131   torn or tarpezitae (TpaTre^Tai), who came to Rome  about A. V. c. 410 — 440, and took the seven shops  known as tabernae ueteres^ on the East side of the  Porum^ Their numbers were subsequently increased,  when the tabernae nouae were also occupied by them.  Their business was extremely varied and their system  of book-keeping doubtless highly developed. They  made loans^, received deposits*, cashed cheques  {perscriptionesY, managed auctions', and exchanged  foreign monies for a commission (collybusy. They  also used codices accepti et expensi, in which, as we  have seen, accounts-current were kept with their  customers ^ We learn from Livy' that by A. v. C.  5.59 the expensilatio thus introduced by them had  become a common transaction among private in-  dividuals. It cannot have been long before the  conception of pecunia credita was extended so as  to cover book-debts as well as stipulations ; but  we do not know the exact date. From Cicero"  however we learn that pecunia expensa lata was a  branch of pecunia credita within the scope of the  Lex Silia, and that the proper remedy for its  enforcement was the condictio certae pecuniae with  its sponsio tertiae partis. As Voigt" has well  pointed out, the expensilatio presupposes the exis-  tence throughout the community of a high standard  of good faith. It was therefore ill adapted for   ' Liu. XXVI. 27. 2 Liu. vii. 21.   3 Plaut. Cure. 5. 2. 20. * ib. 2. 3. 66.   5 ib. 3. 62-65. « Cio. Caec. 6. 16.   ? Cio. Att. XII. 6. 1. 8 2 Dig. 14. 47.   ^ Liu. XXXV. 7. ^'' Rose. Com. 5. 14.  11 I. N. II. 420.   9—2   Digitized by Microsoft®     132 FORMAL CONTRACTS OF THE LATER REPUBLIC.   general use among the Greeks, whose bad faith was  proverbial'. The fact that it was at Rome, and at  Rome only, that this contract received full legal  recognition, is proved by Gains' doubts" as to  whether a peregrin could be bound by a nomen  transcripticiwn. By the end of the Republic eocpen-  silatio was at its height of favour, but it died out,  except among bankers, soon after the time of Gains,  for in Justinian's day it was unknown.   Art. 4. Chirographvm and Stngrapha were  forms of written contract borrowed, as their name  implies, from Greek custom, and chiefly used by pere-  grins, as Gaius informs us°. The distinction between  the two was purely formal, the one being signed by  the debtor (cAiro^rrop/i Mm), and the other being written  out in duplicate, signed by both parties, and kept by  each of them (syngraphay. These foreign instru-  ments at first produced nothing more than a pactum  nudrmi, for wherever we find syngrapha mentioned  in Plautus, it denotes a mere agreement (pactum),  the terms of which had been committed to writing  and which was certainly not actionable, while chiro-  graphum, never occurs in his plays. The Roman  magistrates, finding these instruments recognised by  aliens, ventured at length to enforce debts ew syn-  grapha, and thus their legal validity was secured^  They had received, some sort of recognition by the   1 Plaut. Asin. 1. 3. 47.   ■" m. 133. s III. 134.   * See Diet, thirteenth cent, in Heimbach, Greditum p. 520, and  Ascon. in Gic. Verr. i. 36.   s Cic. pro Rah. Post. 3. 6; Har. resp. 13. 29 ; Phil. ii. 37. 95 ;  ad Att. Yi. 1. 15 ; ii. v. 21. 10 ; ib. vi. 2. 7.     Digitized by Microsoft®     CHIROGRAPHVM. 133   time of Cicero, but when they were first enforced  does not appear, though it was certainly late in the  history of the Republic. Gneist^ has advanced the  theory that in Cicero's time neither chirographum  nor syngrapha was a genuine literal contract, but  only a document attesting the fact of a loan, which  could always be rebutted by evidence aliunde. This  theory is the more plausible because Gains himself  does not seem certain as to the binding nature of  these documents^   An interesting passage in Theophilus° is some-  times said to give the form in which litterarum  obligatio proper, i.e. expensilatio, was contracted.  This view is certainly wrong, for the context  shows that Theophilus meant to describe a contract  signed by the creditor and known as chirographum.  As a sample of how chirographa were made, the  Latin translation of this instrument may therefore  be quoted : " Centum aureos quos mihi ex caussa  locationis dehes tu ex conuentione et confessione lit-  terarum tuanrni dabis?" And to this the debtor  wrote the following answer: "Ex conuentione deheo  litterarum nuearutn." This was evidently not a nomen  transcripticium, but a chirographum or syngrapha,  since Gaius expressly states debere se aut daturum  se scribere to be the usual phraseology of such  instruments. Both parties also seem here to have  been present, whereas one of the chief advantages  of expensilatio was that it enabled debts (by expensi-  latio) and assignments (by transcriptio) to be validly  made without requiring the presence of the parties   1 Form. Vertr. p. 113. ' in. 134. » Paraphr. in. 21.   Digitized by Microsoft®     134 FORMAL CONTRACTS OF THE LATER REPUBLIC.   concerned. Heimbach* is therefore wrong in taking  the above passage as equivalent to " Eacpensos tiM  tuli ?" " Expensos mihi tulisti." The transaction was  evidently dififerent from expensilatio, and can have  been nothing else than a dhirographtim. Another  specimen chirographum preserved in the Digest^  shows that the promise or acknowledgement was  sometimes made in a letter from the debtor to the  creditor.   > Cred. p. 330. 2 2 Dig. 14. 47.     Digitized by Microsoft®     CHAPTER VI.   CONTRACTS OF THE IVS GENTIVM. Part I.   Consensual Contracts.   Art. 1. Emtio Venditio. The forms of con-  tract hitherto examined have been distinguished from  most of the contracts of modern law in one or more  of the following respects :   (i) They were confined to Roman citizens.   (ii) They were unilateral.   (iii) They were capable of imposing obligations  only by virtue of some particular formality.   (iv) They were available only inter praesentes.   The contract which we are now about to consider  was modem in all its aspects :   (i) It was open to aliens as well as to citizens.   (ii) It was bi-lateral.   (iii) It rested only upon the consent of the  parties, required no formality, and could be re-  solved like any modem contract into a proposal by  one party' which became a contract when accepted  by the other party.   1 Plant. Epid. 3. 4. 35.     Digitized by Microsoft®     136 CONTRACTS OF THE IVS OENTIVM.   (iv) It could be made at any distance, provided  the parties clearly understood one another's meaning.   How then can the formal contracts of the older  law ever have produced such a modem institution to  all outward appearance as the consensual contract of  sale?   The elements which make up the popular con-  ception of sale are usually fourfold ; they consist of:   (1) The agreement by which buyer and seller  determine to exchange the wares of the latter for  the money of the former;   (2) The transfer of the wares from the seller to  the buyer ;   (3) The pajrment of the price by the buyer to  the seller ;   (4) The representation, express or implied, of  the seller to the buyer, that his wares are as good in  point of quantity or quality as they are understood  to be.   Mandpatio was at first a combination of the  second and third elements above-mentioned. It  was a transfer of ownership followed by an imme-  diate payment of the price. Subsequently, as we  saw, the payment became separated from the trans-  fer, so that mancipatio represented only the second  element. The fourth element, that of warranty,  existed to a certain extent in those sales in which  the transfer of property was made by moundpatio,  and this fourth element we shall consider further in  a later section. But throughout the early history of  Rome the first element, indispensable wherever a  sale of any kind takes place, was completely un-     Digitized by Microsoft®     ORIGIN OF ACTIO EMTI. 137   recognised by the law. The reason is that the  preliminary agreement between buyer and seller was  nothing more than a pactum, an agreement without  legal force because usually without form. The parties  might always of course embody their agreement of  sale in a sponsio and restipulatio, but in such a case  all that the law would recognise would be the re-  ciprocal sponsiones, not the agreement itself Why,  we may ask, was recognition ever accorded to this  preliminary pactum ? In other words, what was the  origin of emtio uenditio, which turned the pactum  into a contract ?   Bekker's plausible theory' adopted by Muirhead"  is that contracts of sale were originally entered into  by means of reciprocal stipulations, and that the actio  emti was but a modification of the actio ex stipu-  latu founded on those stipulations, while it borrowed  from the actio ex stipulatu its characteristic bonae  fidei clause. But how then did the notion of bona  fides arise in the actio ex stipulatu itself? Bekker  seems to have put the cart before the horse, and  Mommsen" holds the far more reasonable view that  the actio emti was the original agency by which  bona fides found its way into the law of contract, in  which case the actio ex stipulatu must have been not  the prototype but the copy of the actio emti.   The origin of the actio emti was indeed very  curious, since it seems clearly to have been suggested  and moulded by the influence of public law. The  sales of public property, which used at first to be   1 Akt. I. 158. ^ Bom. Law, p. 334.   3 Z. der Sav. Stift. R. A. yi. 265.     Digitized by Microsoft®     138 CONTRACTS OF THE IVS OENTIVM.   carried out by the Consuls and afterwards by the  Quaestors', became increasingly frequent as the  conquests of Rome were multiplied, and as the  supplies of booty, slaves and conquered lands be-  came more and more plentifiTl. The purchase by  the State of materials and military supplies was  also of frequent occurrence, as the wealth of Rome  increased. Now these public emtiones and iiendi-  tiones constantly occurring between private citizens  and the State were founded upon agreements neces-  sarily formless. The State could clearly not make a  iusiurandum or a sponsio, but the agreements to  which the State was a party (according to the  fundamental principle laid down at the beginning  of this inquiry that the sanction of publicity was as  strong as that of religion) were no less binding than  the formal contracts of private law. A public breach  of bona fides would have been notorious and dis-  graceful. Whenever therefore the State took part  in emtio uenditio, the agreement of sale was thereby  invested with peculiar solemnity ; and thus in course  of time the pactum uenditionis became so common as  an inviolable contract that the actio emti uenditi was  created in order to extend the force of the public  eTTitio uenditio into the realm of private law. As  soon as this action was provided, emtio uenditio  became a regular contract, which was necessarily  bilateral because performance of some sort was  required from both parties. An action could thus  be brought either by the buyer against a seller  who refused to deliver (actio emti), or by the  ^ MommseD, Z. der Sav. Stift. E. A. vi. p. 262.     Digitized by Microsoft®     INFLUENCE OF PUBLIC SALES. 139   seller against a buyer who failed to pay {actio  uenditi).   The history of the words emere uendere is in-  structive. We can see that at first they were not  strictly correlative. Vendere or uenumdare meant to  sell, not in the sense of agreeing upon a price, but  in the sense of transferring in return for moneys ;  while eniere meant originally to take or to receive,  without reference to the notion of buying''. But  neither emere nor uendere was at first a technical  term. Emere subsequently got the specialized sense  of purchasing for money as distinct from permutare,  to barter ^, but this particular shade of meaning seems  like the actio to have had a public origin. The old  technical expression for the purchase of goods at public  sale was emtio sub hasta or sub corona, while the object  of the sales was to get money for the treasury, and  therefore the consideration was naturally paid by  purchasers in coin. These public uenditioiies thus  led to three results:   1. The agreement of sale came to the front as  the element of chief importance, and as a transac-  tion possessing all the validity of a contract.   2. The word emere came to denote the act of,  buying for money, as distinct from permutatio which  meant buying in kind.   3. The uenditio of public law resting wholly upon  consent, which was probably signified by a lifting up of  the hand in the act of bidding*, and being necessarily  a transaction bonae fidei, it follows that when emtio   ^ Voigt, I. N. IV. 519. ^ Paul. Diac. s. u. emere.   2 21 Dig. 1. 19. fr. 5. * Cf. the word manceps.     Digitized by Microsoft®     140 CONTRACTS OF THE lYS GENTIVM.   uenditio was made actionable in private law, consent  was the only thing required to make the contract  perfectly binding, and that the rules applicable to  it were those, not of iiis strictwm, but of bona  fides.   The complete recognition of emMo uenditio was  only attained by degrees. The first step in that  direction seems to have been the granting of an  exceptio rei uenditae et traditae to a defendant  challenged in the possession of a thing which he had  honestly obtained by purchase and delivery. The  second step was the introduction of the actio Puhli-  ciana, through which a plaintiff, deprived of the  possession of a thing that had been sold and de-  livered to him (1) by the owner or (2) by one whom  he honestly believed to be the owner, might recover  it by the fiction of usucapio^.   These remedies, the exceptio and the actio, were  necessary complements to one another. The former  was a defensive, the latter an offensive weapon, and  they both served to protect a bona fide purchaser  who had by fair means obtained possession of an  object to which in strict law another might lay  • claim. The exceptio rei uenditae et traditae^ was  founded upon an Edict worded somewhat as follows :   SI QVIS ID QVOD VENDIDIT ET TRADIDIT NONDVM  VSVCAPTVM PETET, EXCEPTIONEM DABO ^ ; and in   the formula of an action by the seller to recover the  thing sold this exceptio would have been introduced  thus:... si non earn rem qua de agitur J.' Agerius   1 Gai. IV. 36. 2 44 j)ig^ i_ 20.   3 Voigt, I. N. IV. 517.     Digitized by Microsoft®     ACTIO PYBLIOIANA. 141   N" Negidio vendidit et tradidit Its effect was to   protect the bona fide purchaser even of a res mancipi  against the legal owner who attempted to set up his  dominium ex iure Quiritium. On the other hand  the actio Publiciana in its alternative form, was  based on two Edicts worded somewhat as follows:   (i) SI QVIS ID QVOD EI TRADITVM EST EX IVSTA  CAVSA A DOMINO ET NONDVM VSVCAPTVM PETET,  IVDICIVM DABO\   (ii) SI QVIS ID QVOD BONA FIDE EMIT ET EI  TRADITVM EST NON A DOMINO ET NONDVM VSV-  CAPTVM PETET, IVDICIVM DABO I   The precise wording of these Edicts is much dis-  puted, but the question of their correct emendation  is too large to be discussed here. The formula of an  actio Publiciana based on the second Edict is given  by Gaius '" and ran as follows : Si quern hominem A^  Agerius* emit et qui ei tradittis est anno possedisset,  turn si eum hominem de quo agitur eius ex iure Quiri-  tium esse oporteret, quanti ea res erit, tantam pecuniam,  iudex, N™ Negidium A" Agerio condemnato, s. n.p. a.   The usefulness of these actions as a protection to  sale is apparent. They secured the buyer in posses-  sion of the object sold to him until usucapio had  ripened such possession into full dominium ; but  they were useful only when his possession had been  interrupted and he wished to recover it. On the  other hand, the exceptio rei uenditae et traditae pro-   1 Voigt, I. N. IV. 478.   2 Voigt, /. N. IV. 479. 2 IV. 36.   ■• BONA FIDE here iDserted by Voigt, I. N. iv. 483, of. 6 Diri.  2. 7. fr. 15.     Digitized by Microsoft®     142 CONTRACTS OF THE IVS GENTIVM.   tected him till the period of tisucapio agaiost the  former owner; but it was only usefal where his  possession had not been interrupted. The date of  the actio Publidana and of this exceptio are not  to be fixed with absolute certainty; but it is quite  clear that neither of them had anything to do  with a Praetor Publicius mentioned by Cicero as  having existed about A.v.c. 685'. Though there  is no mention of either actio or exceptio in the  writers of the Republican period, yet it is clear  from some passages of Plautus^ that the tradition  of res mancipi sold was in his time a transac-  tion protected by the law, and Voigt ^ has shrewdly  argued that both actio and exceptio must be older  than the actio emti, because the latter aimed at  securing delivery (habere licere) which would have  been of no use had not delivery already been protected  by legal remedies. Now the Fasti Gapitolini report a  Consul M. Publicius Malleolus of A. v. c. 5 22*, and the  conjecture that he was the author of the actio Publi-  dana seems very plausible °. The exceptio rei uen-  ditae et traditae was probably somewhat older, for  the defensive would naturally precede, not follow, the  offensive remedy. Nor can this exceptio in Voigt 's  opinion have been contemporary with the actio  Publidana, because it does not bear the name of  exceptio Publidana, which it otherwise would have  borne ° This argument does not seem to me strong,   1 Cie. Cluent. 45. 126.   2 Cure. 4. 2. 8 ; Fers. 4. 3. 64 ; Epid. 3. 2. 23.   ' I. N. XV. 469. < = Praetor in a.v.c. 519.   " Voigt, I. N. IV. 505. 6 I. N. iv. 468.     Digitized by Microsoft®     SALE ENFORCED BY EDICT. 143   since we know that the famous exceptio doli was not  called exceptio Aquiliana. But the point is not an  important one. It is enough to be able to say with  approximate certainty that the exceptio rei uenditae  et traditae and the actiones Puhlicianae were intro-  duced by some Praetor about A.v.c. 520.   Still the agreement of sale was not yet enforce-  able as such. In private affairs it remained what it  had been from the time of the XII Tables, a formless  agreement supported only by the mores of the com-  munity, whereas in public affairs it was still techni-  cally a pactum as before, except that the publicity  of sales made by the Quaestors gave to their terms  a peculiarly binding force. The solemnity always  attaching to transactions done in the presence of the  people was, as we have seen, at the root of this respect  paid to the public uenditio.   At last the Praetor of some year decided to  make the emiio uenditio of private law the ground  of an action, and thus put it on a level with the  public uenditiones. We do not know the terms of  the important Edict by which the actio emti was  introduced, but the formula of the action (ex uendito)  brought by the seller is partly given by Gains ^ and  must have been as follows : Quod Aulus Agerius  mensam N" Negidio uendidit, quidqvid paret oh earn  rem iV™ Negidium A" Agerio dare facere oportere  ex fide bona'', eius, index, N™ Negidium A" Agerio  condemnato. s. n. p. a. The intentio here was exactly  the same as that of the actio ex stipulatu, and was  probably its prototype, both of them being equally  1 IV. 131. 2 cio. Off. III. 16. 66.     Digitized by Microsoft®     144 CONTRACTS OF THE lYS GENTIVM.   bonae fidei actions. The formula of the action (ex  emto) brought by the purchaser was worded in like  fashion: Quod A' Agerius de N" Negidio hominem  quo de agitur emit, quidquid oh earn rem N^ Negidium  A" Agerio dare facer e oportet ex fide bona, eiv^, index,   t&C. (&C.   The age of the a^tio emti has been very hotly  disputed, and the most knotty question has been  whether the action existed or not in the days of  Plautus, who died A.v.c. 570. The chief opponent  of the affirmative theory has been Bekker', but the  arguments of Demelius", Costa', Voigt* and Bech-  mann' are so convincing that little doubt on the  subject can any longer be entertained. It appears  absolutely certain that the actio emti was a feature  of the law as Plautus knew it. An elaborate proof of  this proposition has been so well given by Demelius  and Costa that it is not necessary to do more than  sum up the evidence.   (i) The contract of emtio uenditio was discussed  by Sex. Aelius Paetus Catus (Cos. A.V.C. 556) pro-  bably in his Tripertita, and by C. Liuius Drusus  (Cos. A.v.c. 642)«.   (ii) The aedilician Edict, which presupposed  that emtio uenditio was actionable, is mentioned by  Plautus '.   (iii) We find in Plautus many passages which  are only intelligible on the supposition that emtio   ' AU. I. 146, note 38. ^ z.fiir SG. ii. 177.   3 Dir. Pnvato 365-73. * I. N. iv. 542.   5 Kauf, I. pp. 511-526. « 19 Dig. 1. 38.  7 Capt. 4. 2. 43.     Digitized by Microsoft®     INSTANCES IN PLAUTUS. 145   uenditio was actionable. For instance in Mostel-  laria^, where the son of Theuropides pretends to  have bought a house, and where the owner of the  house is represented as begging for a rescission of  the sale, we cannot suppose, as Bekker does''', that  fides was the only thing which bound the owner.  Had it not been for the existence of the actio emti  he could not have been represented as trying to have  the sale cancelled'.   Again, in Act 5, Scene 1, the slave Tranio ad-  vises his master Theuropides to call the owner into  court and bring an action for the mancipation of the  house *, and this can be nothing else than a reference  to the actio ex emto. In the same play° it is also  plain that hona fides was a principle controlliiig the  iudicium ex emto.   Again in Persa ' it is clear that Sagaristio, when  selling the slave-girl, would not have taken such  pains to disclaim all warranty if he could not have  been compelled by the actio emti to make good the  loss sustained by the purchaser. To prevent this  liability Sagaristio is careful to throw the whole  periculum on the buyer. Why should he have done  so, had there been no actio emti ?   Again in Rudens the leno, who had taken  earnest-money for the sale of a slave girl and had  then absconded with her, would not have been so  much afraid of meeting the buyer Plesidippus, if he   1 3. 1. and 2. ^ de Empt. Vend. p. 16.   3 3. 2. 110.   * 5. 1. 43. Cf. Gai. iv. 181. « 3. 1. 139.   8 4. 4. 114. and 4. 7. 5.   B. E. 10   Digitized by Microsoft®     146 CONTRACTS OF THE IVS 0ENTIVM.   had not feared the actio emti. And when the slave  girl was finally abiudicata from the leno *, Demelius  and Costa are unquestionably right in regarding this  as a result of a iudicivmi ex emto. Bekker's opinion  that it was the result of a uindicatio in libertatem  seems hardly to agree with the fact that the leno is  not represented as knowing of her free status till  two scenes later''. We might multiply instances,  but the evidence is so fully given by others that it is  not worth repeating. The general conclusion to be  drawn from the above facts is that emtio uenditio  became actionable before A.v.c. 550; and, if our  argument be right, later than 520, the date of the  actio Publiciana.   From Plautus we gather further that arrha or  arrhabo, the pledge or earnest money which Gaius  mentions in this connection, was often given to bind  the bargain of sale as well as other bargains. From  this it has been argued that pure consensus must have  been insufficient to make the contract binding'; but,  if that be so, why should the arrha have been used  in Gains' day, when we know that sale was purely  consensual ? In Rudens " it is clear that the arrhabo  was not a necessary part of the transaction, but a  mere piece of evidence, so that arrhahonem acceperat  simply means uendiderat^. The use of arrhaho is  mentioned also in Mostellaria^ and Poenulus^. It  was probably forfeited by the purchaser in case the  bargain fell through.   ^ 5. 1. 1. 2 5. 3—8.   ' Bekker, Heid. Krit. Jahrschrift, i. 444.   ■* 2. 6. 70. « Brid. Prol. 45-6.   6 3. 1. 111—4. 4. 21. ' 5. 6. 22.     Digitized by Microsoft®     WARRANTY IN SALE. 147   Having now seen how the actio emti uenditi  originated and what was its probable age, let us see  what obligations were imposed by the conclusion of  the sale upon each of the parties to it :   (1) Upon the purchaser (emtor).   His chief duty was reddere pretium, to pay  the price agreed upon', and if the price consisted  partly of things in kind, his duty was to deliver  them " ; but according to Voigt ' there was no obli-  gation iipon him to do more than deliver.   A duty which the purchaser seems very early  to have acquired was that of compensating the seller  for mora on his part *.   (2) Upon the vendor (tienditor-).   His chief duty was rem praestare ° (or rem habere  licere), to give quiet possession to the vendee ; but  this did not include the obligation to convey  dominium ex iure Quiritium,".   The actio emti, as we have now examined it,  enforced three things : (1) recognition of the con-  sensual agreement of sale, (2) delivery by the seller,  (3) prompt payment by the buyer. Thus it dealt  with three of the elements involved in the general  conception of sale. The fourth element, that of  warranty, remains to be considered.   We know that this fourth element was covered  by the actio emti in the time of Ulpian, but it does  not seem to have been so during the Eepublic.  Both Muirhead' and Bechmann* have involved the   ' Varro, R. R. n. 2. 6. ^ Cato, R. R. 150.   3 /. N. in. 985. ^ 19 Dig. 1. 38 fr. 1.   « 19 Dig. 1. 11. " 19 Dig. 1. 30 ; 18 Dig. 1. 25.   !■ R. Law, p. 285.. ^ Kauf. i. 505.   10—2   Digitized by Microsoft®     148 CONTRACTS OF THE IVS GENTIVM.   subject in unnecessary difficulty by confusing a honae  fidei contract of sale with one in which warranty  was employed. They speak as though bona fides  included warranty, a proposition not necessarily tnie  and of which we have no proof. It appears, on the  contrary, that the actio emti to enforce warranty was  of much later origin than the actio emti to enforce  consensual sale '. We have therefore to inquire how  warranty was originally given and how it was made  good.   The only kind of warranty which we have hitherto  encountered is that against eviction implied in every  mancipatio and enforced by the actio auctoritatis.  This method was but of limited scope, since it ap-  plied only to res mancipi.   After the introduction of the condictio incerti, it  became possible to embody warranties in the form of  a stipulation. This was accomplished in one or more  of the following ways :   (1) The stipulatio duplae specified the warranty  given by the vendor, and provided in case of a breach  for liquidated damages in the shape of a poena dupli,  which was doubtless copied from the duplwm of the  a^tio auctoritatis. The best specimens of this stipu-  lation are texts 1 and 2 of the Transylvanian Tablets  printed by Bruns ''-. It was apparently used in those  sales of res mancipi, which were consummated not by  mancipatio but by traditio '. Its superiority to the  warranty afforded by the actio auctoritatis was that  it guaranteed quality as well as title, which the actio   1 Girard, Slip, de Garantte, N. R. H. de D. vii. p. 545 note.  ^ Font. p. 256. ^ Varro, B. R. ii. 10. 5.     Digitized by Microsoft®     STIPULATIONS OF WARRANTY. 149   auctoritatis could not do. The Tablets indeed show  that the warranties against defects in this stipulation  "were exceedingly comprehensive, and that it defended  against eviction not only the buyer, but also those in  privity with him (emtorem eumue ad quern ea res per-  tinebit).   (2) We also find a stipulatio simplae, of which  the best instances are texts 3 and 4 of the Transyl-  vanian Tablets and which, according to Varro ^ might  be used as an alternative to the stipulatio duplae, if  preferred by the two parties. Its aim in securing the  buyer against eviction and defects was precisely the  same as that of the former stipulation; its only  difference being that the damages were but half  the former amount, i.e. were exactly measured by  the price of the thing sold. Girard and Voigt are  probably wrong in identifying this stipulation used  for res mancipi with the next one, which was  apparently used only in sales of res nee man-  cipi.   (3) Another stipulation of frequent occurrence  was the stipulation recte habere licere. This guaran-  teed quiet possession so far as the seller was con-  cerned. Its scope was therefore not so wide as that  of the stipulatio siviplae or duplae. The vendor  simply promised recte habere licere, but specified no  penalty in the event of his non-performance, so that  the action on the stipulation must have been a  condictio incerti, in which the damages were assessed  by the judge. The import of the word 'recte' was  doubtless not the same as that of ex fide bona ; but,   1 R. R. II. 2. 5.     Digitized by Microsoft®     150 CONTRACTS OF THE IVS GENTIVM.   as Bechmann ^ has pointed out, it simply implied a  waiver of technical objections.   (4) A stipulation as to quality alone is men-  tioned by Varro " as annexed to the sale of oxen and  other res mancipi. The vendor simply promised  sanos praestari, so that in this case also the remedy  was condictio incerti for judicial damages.   (5) A satisdatio secundum mancipiimi is also  mentioned by Cicero' and in the Baetic Tablet ^  But its nature and form are quite uncertain. Its  name implies that it had some connection with  auctoritas, and the most likely theory seems to be  that it was a stipulation of suretyship, by which  security was given for the auctor, either to insure  his appearance (and if so, it was a form of uadimo-  nium/') or to guarantee his payment of the poena  dupli, in the event of eviction (and if so, it was a  form oifideiiissio ').   The three first of the above stipulations prove  that even in the early Empire (a.d. 160 is the sup-  posed date of the Transylvanian Tablets) actio emii  was not yet an action for implied warranty. Ulpian's  language also indicates that the implication of war-  ranty was a new doctrine in his day '.   Thus far we have seen that stipulations of war-  ranty were customary, and that by the stipulatio  duplae or simplae both title and quality were  secured. The next step was to make these stipu-   1 Kauf. I. p. 639. ^ ii. 5. 11.   » ad Att. V. 1. 2. * Bruns, Fcmtes, p. 251.   " Varro, vi. 7. 54. ^ gge Girard, loc. cit. p. 551.   ' 21 Dig. 1. 31 fr. 20.     Digitized by Microsoft®     LOGATIO OONDVGTIO. 151   lations compulsory, and this was first accomplished  by the Aediles, in their Edict regulating, among  other things, sales in the open market. Plautus  mentions this Edict, and refers to the rule of red-  hibitio which it enforced \ The first positive mention  of aedilician regulations as to warranty occurs how-  ever in Cicero ^ and from this it appears that the  Aediles first compelled a stipulatio duplae in the sale  of slaves. This innovation was doubtless intended to  punish slave dealers, who were, as Plautus shows, a  low and dishonest class, by imposing upon them the  old penalty of duplum. The two aedilician actions  which could be brought, if the stipulatio duplae had  not been given, were (1) the actio redhibitoria, avail-  able within two months, and by which the vendor  had to restore the duplum of the price"; (2) the  actio quanti emtoris intersit*, available within six  months for simple damages. Further than this,  however, the law of the Republic did not advance.  It was not till the day of Trajan and Septimius  Severus that the stipulations of warranty were  compulsory for other things than slaves*, and we  cannot therefore here trace the development of  warranty to its consummation.   Art. 2. LocATio Condvctio. The word locare  has no technical equivalent in English, for it some-  times expresses the fact of hiring, sometimes that of  being hired. It means literally to place, to put out.   1 Capt. i. 2. 44 ; Bud. 2. 3. 42 ; Most. 3. 2. 113.   2 Off. III. 17. 71.   3 21 Dig. 1. 45. « 21 Dig. 1. 28.  5 Girard, N. B. H. de D. viii. p. 425.     Digitized by Microsoft®     152 CONTRACTS OF THE IVS GBNTIVM.   As we say that a capitalist places his money, so the  Romans said of him pecunias locat\ The State was  said opios locare when it paid a contractor for doiag  a job, while the gladiator who got paid for fight-  ing was said operas locare. This contract was con-  sensual and bi-lateral like emtio uenditio, and had a  very similar origin. It is easy indeed to see that for  a long time there was no distinction made between  locatio and uenditio. The latter meant originally, as  we have seen, to transfer for a consideration, and  thus included the hire as well as the sale of an  object. Festus accordingly says that the locationes  made by the Censors were originally called uendi-  tiones ^ The confusion thus produced left its traces  deeply imprinted in the later law, for we find Gaius'  remarks on locatio condiictio chiefly devoted to a  discussion of how in certain doubtful cases the  line should be drawn between that and emtio uen-  ditio.   Like emtio uenditio, this contract was developed  in connection with the administration of public busi-  ness. The public affairs in which contractual relations  necessarily arose were of four kinds ' :   (1) Sales of public property, such as land, slaves,  etc., which devolved upon the Quaestors. This class  of transactions produced the contract of emtio uen-  ditio, as above explained.   (2) Contracts for the hire of public servants,  generally known as apparitores. These were the  lictores and other attendants upon the different   ' Most. 1. 3. 85. ^ Festus, s. u. uenditiones.   " Mommsen, Z. der Sav. Stif. R. A: vi. 262.     Digitized by Microsoft®     VARIOUS FORMS OF HIRE. 153   magistrates, and were naturally engaged by those  whom they respectively served. This hiring gave  rise to the contract known as condiictio operarum,  while the offer of such services to the State con-  stituted locatio operarum.   (3) Business agreements connected with public  work, such as the building of temples or bridges,  the collection of revenue, etc. This class was in  charge of the Censors \ and developed the contract  of locatio operis, while the transaction viewed from  the standpoint of the contractor became known as  conductio operis.   (4) Agreements for the supply of various kinds  of necessaries for the service of the State, such as  beasts of burden, waggons, provisions, etc. This  hiring produced the contract known as conductio rei,  while the contractors who supplied such commodities  were said rem locare.   Thus the first group of public transactions gave  birth to the contract of sale in private law, while the  three last groups each became the parent of one of  the three forms of the contract of hire.   Just as uenditio seems to have been the original  equivalent of locatio, so must emtio have been the  original term for what was afterwards known as  conductio. Conducere can originally have applied  only to the second class of agreements; it must  have denoted the collecting and bringing together  of a body of apparitores. Afterwards, when the  notion of hiring became conspicuous, conducere doubt-  less lost its narrow meaning, and was extended to   1 Liu. xMi. 3.     Digitized by Microsoft®     154 CONTRACTS OF THE IVS GENTIVM.   the pther two kinds of hire, as the correlative to  locare '-   The wholly distinct origin of these various kinds  of locatio conductio, and the fact that they were  transacted by different magistrates, are sufficient  reasons for the curious distinction which the classical  jurisprudence always drew between locatio conductio  r&i, operis and operarum. A trace of the old word  emere as equivalent to conducere always remained in  the word redemtor, meaning a contractor for public  works. This term was never applied to the apparitor,  since it was he who took the initiative and who  was thence regarded as a locator operarwm.   When the conception of locatio conductio became  separated from that of emtio uenditio it is impossible  to determine. But since the two transactions appear  in Plautus distinct as well as enforceable, and since  the contract of sale was only recognised shortly before  Plautus' day, the conceptions of sale and of hire pro-  bably became quite distinct before either transaction  became actionable. We can trace in many passages  of Plautus the three forms locatio rei", locatio operis',  locatio operarum* ; and it can hardly be imagined  that these contracts could have been so common and  so distinctly marked had they not been provided  with actions. Voigt ' however is of opinion that the  three different forms of locatio conductio became  actionable at different periods. Locatio conductio   ' Mommsen, ib. p. 266.   2 Pseud. 4. 7. 90 ; Merc. 3. 2. 17.   3 Bacch. i. 3. 115 ; Persa, 1. 3. 80.   * Aul. 2. 4. 1 ; Merc. 3. 4. 78 ; Epid. 2. 3. 8.  = I. N. IV. 596, ff.     Digitized by Microsoft®     AGE OF THE VARIOUS FORMS. 155   operis and operarwm he places earliest, and admits  that they were known as contracts by the middle of  the sixth century, which would bring them very  nearly to the age of emtio uenditio ; but from  Cato ^ he infers that locatio conductio rei was of later  origin and that it did not become actionable until  the first half of the seventh century. The earliest  actual mention that we possess of locatio conductio is  by Quintus Mucins Scaeuola, author of 18 books on  the IxiS Giuile'', whom Cicero quotes^, though we  cannot tell whether the quotation refers to all  kinds of locatio conductio or only to the locatio  conductio operis. Certain it is that in Cato ' locatio  conductio rei seems to be treated rather as emtio  uenditio fructus rei. It is also remarkable that lo-  catio conductio rei is seldom mentioned in Plautus ^  and so briefly that we can form no conclusion as to  whether it was or was not actionable; whereas on  the contrary locatio conductio operis and operarum  appear very often and exhibit all the marks of  ' thoroughly developed contracts. For instance, the  locatio conductio operancni in Asinaria" contains a  lex commissoria, and that in Bacchides'' provides for a  bond to be given by the locator operarum binding  him to release the person whose operae he had been  employing, as soon as the work was finished. Again  in Miles Gloriosus^ the technical term improbare  opus is used to express the rejection of work badly  carried out by a contractor. All this points to the   1 R. B. 149. 2 i.y.c. 661-672. •* Off. in. 17. 70.   * R. R. 149, 150. 5 Cure. 4. 1. 3 ; Merc. 3. 2. 17.   6 1. 8. 76. ' 1. 1. 8. ? 4. 4. 37.     Digitized by Microsoft®     156 CONTRACTS OF THE IV8 GENTIVM.   existence of an action for locatio conductio operarum  and for locatio conductio operis at the time when  Plautus wrote'; hut Voigt seems right in concluding  that locatio conductio rei did not become actionable  till a good deal later.   The origin of this action, as of the actio emti, was  in the Praetor's Edicts and in form it differed but  little from the actio emti uenditi. Like the latter it  was bonae fidei^ and its form {ex locato) must have  been as follows : Quod A^ Agerius N" Negidio  operas locauit, quidquid paret oh earn rem N™ Negi-  dium A" Agerio dare facere oportere ex fide bona,  eius, iudex, N™ Negidium A" Agerio condemnato.  s. n. p. a. Like emtio uenditio it is also clear that  locatio conductio of all kinds could be made by mere  consensus, and that from the first it must have been  a 6onae fidei contract like its prototjrpe.   The writings of Oato * are our chief authority for  the existence of the locatio conductio operis and  operarum in the second half of the seventh century,  and for the manner in which these locationes were  contracted. It appears to have been customary to  draw up with care the terms (leges locationis) of such  contracts, and when these were committed to writing,  as they doubtless must have been, they exactly  corresponded to the contracts made in modem  times between employers and contractors.   Already in the Kepublican period the jurists had   ^ So Demelins, Z.filr RG. ii. 193 ; Bechmann, Kauf. i. p. 526 j  but Bekker denies it Z.fUr RG. iii. 442.   ■•i .50 Dig. 16. 5. ^ Cic. N. D. iii. 30. 74 ; Off. a. 18. 64.   * R. R. 141-5.     Digitized by Microsoft®     FURTHER DISTINCTIONS. 157   begun to subdivide the classes of contracts above  mentioned.   (1) They distinguished between various sorts of  locatio cmiductio rei. There was (a) rei locatio frii-  endae in which the use of the object was granted ^  (6) rei locatio ut eadem reddatur in which the object  itself had to be returned, and (c) rei locatio ut eiusdein  generis reddatur ''■ in which a thing of the same kind  might be returned.   (2) The two kinds of locatio condiictio operis  were also most probably distinguished at an early  date into : (a) locatio rei faciendae in which a thing  was given out to be made (epyov), and (6) locatio  operis faciendi^ in which a job was given out to be  done {aTTOTeXea/jia).   (3) Locatio condvxtio operarum alone does not  seem to have been subdivided in any way.   The object of these distinctions was doubtless to  define in each case the rights and duties of the  conductor. The technical expression for the remu-  neration in locatio conductio was m,erx*, and it was  always a sum of money, probably because it was  originally paid out of the aerarium and therefore  could not conveniently have been given in kind.  The fact that in Plautus the word pretium was often  used instead of merx, shows that the distinction  between locatio conductio and emtio uenditio was still  of recent origin when he wrote; but our general  conclusion must be that this contract was known   ^ Gai. III. 145 ; Lex agraria, c. 25.   2 19 Dig. 2. 31 ; 34 Dig. 2. 34.   3 19 Dig. 2. 30 ; 50 Dig. 16. 5. * Varro, L. L. v. 36.     Digitized by Microsoft®     158 CONTRACTS OF THE IVS GENTIVM.   to him in some at least of its forms, and that in  all its branches it arrived at full maturity in the  Republican period.   It is worth remembering that the Lex Rhodia  de iactu, the parent of the modern law of general  average, was enforced by means of this action. The  owner sued the ship's magister ex locato, and the  magister forced other owners to contribute by suing  them ex conducto\ This law was discussed in Re-  publican times by Servius Sulpicius and Ofilius".   Art. 3. Before proceeding further with our  history of the ius gentmm contracts we must notice  the important innovation made by the Edict Pacta  conuenta, the author of which was C. Cassius Longi-  nus, Praetor A.v.c. 627'. We have seen how the  pactum uenditionis and the pactwn locationis had  been recognised and transformed into regular con-  tracts about seventy years before this time. The  present Edict gave legal recognition to pacta in  general, and thus rendered immense assistance in  the development of formless Contract.   Its language was somewhat as follows^: PACTA   CONVENTA, QVAE NEC VI NEC DOLO MALO NEC AD-  VEESVS LEGES PLEBISCITA EDICTA MAGISTKATVVM  FACTA ERVNT, SERVABO.   The scope of the Edict was, however, less broad  than might at iirst be supposed. It might well be  understood to mean that all lawful agreements would  thenceforth be judicially enforceable. But as a  matter of fact the test of what should constitute   » Camazza, Bir. Com. p. 172. ■' 14 Dig. 2. 2. fr. 3.   3 Voigt, Bom. EG. i. 591. ■• 2 Big. 14. 7. fr. 7.     Digitized by Microsoft®     EDICT PACTA OONVENTA. 159   an enforceable pactum lay in the discretion of  the individual Praetor. He might or might not  grant an action, according as the particular agree-  ment set up by the plaintiff did or did not appear  to him a valid one. This Edict was therefore  nothing more than an official announcement that the  Praetor would, in proper cases, give effect to pacta  which had never before been the objects of judicial  cognizance. It needs no explanation to show what  important results such an Edict was sure to produce,  even in the hands of the most conservative Praetors;  and accordingly we find that in the next century new  varieties of formless contract arose from the habitual  enforcement by the Praetor of corresponding pacta.   The mode in which tentative recognition was  accorded to the new praetorian pacta was the  devising of an actio in factum^ to suit each new set  of circumstances. The formula of such an action  simply set forth the agreement, and directed the  judge to assess damages if he should find it to  have been broken. This was doubtless the means  by which societas, mandatum, depositivm, commoda-  tum, pignus, hypotheca, receptum, constitutum — in  short, all the contractual relations originating in  the last century of the Kepublic — were at first  protected and enforced. A curious historical parallel  might be drawn between these actiones in factum  and our "actions on the case." Not only are the  terms almost synonymous, but the adaptability of  each class of actions to new circumstances was  equally remarkable; and the part played by the  1 2 Dig. 14. 7. fr. 2.     Digitized by Microsoft®     160 CONTRACTS OF THE IVS GENTIVM.   latter class in the expansion of the English Law of  Tort bears a striking reseniblance to that played  by the former in the development of the Roman  Law of Contract.   We shall see specimens of the actio in factum  based upon the edict Pacta conuenta, when we come  to examine the various contracts of the later Re-  public which all owed their origin to the Praetor's  Edict.   Art. 4. Mandatvm. The age of the actio man-  dati is difficult to fix, but there are good reasons for  believing that it was the third bonae fidei action  devised by the Praetor, and that it is older than  the actio pro socio. Mandatv/m was an agreement  whereby one person, at the request of another,  usually his friend', undertook the gratuitous per-  formance of something to the iaterest of that others  In short, it was a special agency in which the agent  received no remuneration. Its gratuitous character  was essential, for where the agent was paid, the  transaction was regarded as a case of locatio conductio.  We know that the testamentum per aes et libram was  virtually a mandatum to the familiae emtor', and  that fideicommissa, which began to be important  towards the end of the Republic, were nothing but  mandata*; it is plain too that as an informal trans-  action mandatum, must always have been practised  long before it became recognised by the Praetor.   The earliest piece of direct evidence^ which we   1 Cie. Eosc. Am. 39. 112. == Gai. iii. 156.   s Gai. II. 102. 4 Ulp. Frag. 25. 1-3.   » Auot. ad Her. ii. 13. 19.     Digitized by Microsoft®     MAJVDATVAf. 161   have as to the actio mandati is that it existed in  A.V.C. 631 under the Praetorship of S. lulius Caesar.  It is probable that the action was then of recent  origin, and represented the first-fruits of the Edict  Pacta conuenta^, for Caesar treated it as non-  hereditary, whereas the Praetor Marcus Drusus soon  afterwards granted an actio in h&redem according to  the rule of the later law''   From Plautus it distinctly appears that Tnandatum  was a well developed institution in his day, but there  is no evidence to prove that an actio mandati already  existed. The transaction is often mentioned', and  must have been necessary in the active commercial  life which Plautus has pourtrayed. In Trinummus*,  for instance, we see a regular case of mandatv/m  generate. The phrase "mandare fidei et fiduciae"  here indicates that fides pure and simple was the  only support on which mandatum rested, and that  there was no motive beyond friendly feeling to  compel the performance of the mandatum. On the  other hand the word infamia is thought to have had  a technical meaning, as an allusion to the fact that  the actio mxvndati was fam,osa ^ ; but this is surely  a flimsy basis for Demelius' opinion that the actio  mandati was in existence as early as the middle of  the sixth century *.   It seems much safer to regard this action as   1 Voigt, Rom. EG. i. 681. ^ 17 Dig. 1. 53.   ' E.g. Bacch. 3. 3. 71-5 ; Gapt. 2. 2. 93 ; Asin. 1. 1. 107 ;  Epid. 1. 2. 27, 31 ; Gist. i. 2. 53.   ■< 1. 2. 72-121.   5 Cic. pi-o S. Rose. 38. Ill ; Gaec. 3. 7.   « Z. fur EG. II. 198 ; Costa, Dir. Priv. p. 390.   B. E. 11   Digitized by Microsoft®     162 CONTBACTS OF THE IVS GENTIVM.   younger than those of emtio iienditio and locatio  conductio, and to trace its origin to the influence of  the Edict Pacta conuenta. The earliest form of  relief granted to the agent against his mandator was  doubtless an actio in factwrn,, based upon that Edict,  and having a formula of this kind^ :   Si paret N™ Negidium A" Agerio, cv/ni is in  potestate l!- Titii esset, mandauisse ut pro se solioeret,  et A™ Agerium emancipatum soluisse, quanti ea res  erit, tantam pecuniam index N^ Negidium A" Agerio  condemna. s. n. p. a.   When at length the Praetor was prepared to-  recognise mandatum as a regular contract of the ius  duile, he placed it on an equal footing with the older  bonae fidei contracts by granting the actio mandati,  with its far more flexible formula in ius concepta.  The actio mandati directa brought by the principal  against the agent had the following formula :   Quod A' Agerius N" Negidio rem curandam man-  dauit, quidquid paret oh earn rem N™ Negidium A"  Agerio darefacerepraestare oportere ex fide bona, eius,  iudex, N"^ Negidium A" Agerio condemna. s. n. p. a.   In the actio contraria, by which the agent sued  the principal, the formula began as above, but the  condemnatio was different, thus:   quidquid paret ob eam rem A™ Agerium N"   Negidio dare facere praestare oportere e. f. b. eius  A™ Agerium N" Negidio condemna. s. n. p. a.   Or again, where the claims and counter-claims  were conflicting, the condemnatio might be made  still more indefinite, thus :   1 17 Dig. 1. 12. fr. 6.     Digitized by Microsoft®     GROWTH OF ACTIO MANDATI. 163   quidquid paret oh earn rem alterum alteri   dare facere praestare oportere e. f. b. eius alterum  alteri condemna. s. n. p. a.'   Unfortunately we do not know the language of  the Edict by which the actio mandati was instituted;  but the fact that it was modelled on the actions of  sale and hire is one that nobody disputes.   There is no direct authority for assuming the  existence of an actio in factum in this case, as there  is in the cases of commodatum and depositum, where  we have Gaius' express statement to that effects  But it is clear, from Gaius' allusion to "quaedam  causae" and from his use of "uelut," that double  formulae existed in many other actions. We may  well accept Lenel's ingenious theory' that the exist-  ence of an actio contraria always indicates the  existence of formulae in ius and in factum conceptae,  and the assumption here made is therefore no rash  conjecture.   The conception of mandatum changed somewhat  before the end of the Republic. It meant at first  any charge general or special*. But by Cicero's  time it had acquired the narrow meaning, which it  retained throughout the classical period, of a par-  ticular trust ^, while procuratio was used of a general  trust °, and its remedy was the actio negotiorum ges-  torum '   Thus it still remains for us to inquire to what   1 Lenel, Ed. Perp. p. 235.   2 Gai. IV. 47. ' Ed. Perp. p. 202.  * Cato, R. R. 141-3. = 17 Dig. 1. 48.   6 Cic. Top. 10. 42. ' Gai. in 3 Dig. 3. 46.   11—2   Digitized by Microsoft®     164 CONTRACTS OF THE IVS GENTIVM.   extent procuratio, i.e. general agency, was practised,  as distinguished from mandatv/m generate, i.e. special  agency with general instructions, and how general  agents (procuratores) were appointed.   Now it is one of the most striking features of the  Boman Law that agency of this sort was unknown  until almost the end of the Republic. How and  why so great a commercial people as the Romans  managed to do without agency, is a question that  has received many different answers. We may be  sure that mandatum was practised long before it  ever became actionable, but if so, it was practised  informally and had no legal recognition. The cir-  cumstance which made it almost impossible for  general agency to exist was that the Romans held  fast to the rigid rule : " id quod nostrum est sine  facto nostra ad ahum transferri nan potest \" Such  a rule evidently had its origin in the early period  when contracts were strictly formal, and when he  alone who uttered the solemn words or who touched  the scales was capable of acquiring rights. In a  formal period the rule was natural enough; but  the curious thing is that it should not have been  relaxed as soon as the real and consensual contracts  became important.   This fact has sometimes been accounted for on  ethical grounds. It has been said that the keen legal  conscience of the Romans made them loth to depart  from the letter of the law by admitting that a man  who entered into a contract could possibly thereby  acquire anjdihing for anybody else. But the true   > 50 Dig. 17. 11.     Digitized by Microsoft®     RARITY OF AGENCY. 165   reason seems rather to have been a practical one ^ —  that the existence of an agency of status precluded  that of an agency of contract. Thus we know that  householders as a rule had sons or slaves who could  receive promises by stipulation, though they could  not bind their paterfamilias by a disadvantageous  contract; and so to a limited extent agency always  existed within the Roman family. It is also obvious  that, in an age when men seldom went on long  journeys, the necessity for an agent or fully em-  powered representative cannot have been seriously  felt. Plautus shows however that agency was not  developed even in his day, when travel had become  comparatively common. In Trimimmus and Mostel-  laria, for instance, no prudent friend is charged with  the affairs of the absent father, and consequently the  spendthrift son makes away with his father's goods  by lending or selling them as he pleases \   We can however mark the various stages by  which the Roman Law approximated more and  more closely to the idea of true agency.   1. The oldest class of general agents were the  tutor es to whom belonged the management (gestio)  of a ward's or woman's affairs, and the curatores of  young men and of the insane.   2. The next oldest kind of general agents were  the cognitores, persons appointed to conduct a par-  ticular piece of litigation ", and not to be confounded  with the cognitores of praediatura *. They were ori-   1 Pemice, Labeo, i. 489. " Trin. 1. 2. 129; Most. 1. 1. 74.   3 2 Verr. in. 60. 137 ; Gaee. 14.   * Lex. Malae. 63 ; Cio. Har. Resp. 45.     Digitized by Microsoft®     166 CONTRACTS OF THE IVS GENTIVM.   ginally appointed only in cases of age or illness ^ and  their general authority was limited to the manage-  ment of the given suit. Gaius has shown us how  they were able to conduct an action by having their  names inserted in the condemnatio ^ Whether they  existed or not under the legis actio procedure is  uncertain ; but they probably did, since we know that  they were at first appointed in a formal manner =-  Subsequently the Edict extended their powers to the  informally appointed procuratores. The action by  which these agents were made responsible to their  principals was after Labeo's time the actio mandati*.  During the Republic however and before his time  the jurists do not seem to have regarded the relation  between cognitor and principal as a case of mandatum,  but simply gave an action corresponding to each par-  ticular case, as for instance an actio depositi if the  cognitor failed to restore a depositwn.   3. Procuratores were persons who in Cicero's  day" acted as the agents and representatives of  persons absent on public business ^ They often  appear to have been' the freedmen of their re-  spective principals, and their functions were doubt-  less modelled on those of the curatores. The  connection between curatores and procuratores is  seen in the Digest where pupilli and absent in-  dividuals are often coupled together', while the   ' Auot. ad Her. ii; 20. " Gai. iv. 86.   3 Gai. IV. 83. ■< 17 Dig. 1. 8. fr. 1.   = Quint. 19. 60-62 ; -2 Verr. v. 7. 13 ; Lix lui. Mm. 1.   « Gaec. 57. • ' Cio. Or. 2. 249.   8 29 Dig. 7. 2. fr. 3 ; 47 Dig. 10. 17. fr. 11 ; 50 Dig. 17. 124.     Digitized by Microsoft®     PROOVRATIO. 167   definitions of procurator show that his power was  confined to occasions on which his principal was  absent \ and the word procuratio itself indicates  that it was copied from the curatio of furiosi ^ or of  prodigi.   One passage of Gaius " seems to imply that the  procurator was not always carefully distinguished  from the negotioruTn gestor or voluntary agent, and  Pernice interprets some remarks of Cicero * as indi-  cating the same fact. From this he infers with much  likelihood^ that the remedy against the procurator  was originally not the actio mandati but the actio  negotiorum gestorum^. Even in Labeo's time the  actio mandati was probably not well established in  the case of procuratores, though it was so by the  time of Gains'.   A procurator might conduct litigation for the  absent principal; but the acquisition of property  through an agent was not clearly established even  in Cicero's time °, though the principal could always  bring an action for the profits of a contract made  in his name".   4. Negotiorum gestio was a relation not based  upon contract, but consisted m the voluntary in-  tervention of a self-appointed agent, who undertook  to administer the affairs of some absent or deceased  friend. In the Institutes it is classed as a form of   1 Paul. Diac. s.u. cognitor. ' Lex agr. c. 69.   3 IV. 84. ^ Top. 42 and 66. " 17 Dig. 1. 6. fr. 1.   •> Labeo, I. 494. ' 4 Dig. 4. 25. fr. 1.   8 3 Dig. 3. 33. " Cic. Att. vi. 1. 4.   i» 3 Dig. 3. 46. fr. 4.     Digitized by Microsoft®     168 CONTRACTS OF THE IVS GENTIVM,   quasi-contract, and it was always regarded as a  relation closely analogous to mandatum^.   The mode of enforcing claims made by the  negotiorum gestor and his principal against one  another was the actio negotiormn gestorum, which  might, like the actio mandati, be either directa or  contraria. It was based upon an Edict worded thus :   SI QVIS NEGOTIA ALTERIVS, SIVE QVIS NEGOTIA  QVAE CVIVSQVE CVM IS MORITVR FVERINT, GES-  SERIT, IVDICIVM EO NOMINE DABOl   We do not know the date of this Edict, but it  was certainly issued before the end of the Republic,  inasmuch as the action founded upon it was discussed  by Trebatius and Ofilius'. This action had a formula  in ills concepta which ran somewhat as follows :   Quod N' Negidius negotia A^ Agerii gessit, qua  de re agitur, quidquid oh earn rem N'^ Negidium A"  Agerio dare facere praestare oportet ex fide bona,  tantam pecuniam index JV'" Negidium A" Agerio  condemna. s. n. p. a.*   5. Another means by which agency could prac-  tically be brought about was adstipulatio, as we saw  above ". This was not a case of true agency, for the  adstipulator acquired the claim in his own name,  and if he sued upon it, he did so of course in his own  right : yet he was treated as agent for the other  stipulator and made liable to the actio mandati^.   6. Fideiussio was probably treated as a form of  special agency almost from the time of its invention,   1 3 Dig. 5. 18. fr. 2. 2 3 Big. 5. 3.   » 17 Big. 1. 22. fr. 10. * Lenel, Ed. Perp. p. 86.   ° p. 110. » Gai. III. 111.     Digitized by Microsoft®     SOOIETAS. 169   since we know that it possessed the remedy of the  actio mandati as early as the time of Quintus Mucius  Scaeuola ^   Art. 5. SociETAS. This was the common name  given to several kinds of contract by which two or  more persons might combine together for a common  profitq,ble purpose to which they contributed the  necessary means. These contracts could be formed  by mere consent of the parties, and except in the  case of societas uectigalis they were dissolved by the  death of any one member, so that even societas in  perpetuum meant only an association for so long as  the parties should live '.   Ulpian distinguishes four kinds of societas": (1)  omnium honorum, (2) negotiationis alicuius, (3) rei  unius, and (4) uectigalis.   The first of these has no counterpart in our  modem law, but may be described as a contractual  tenancy in common. The second and third may be  treated under one head, as societates quaestuariae,  corresponding to modem contracts of partnership.  The fourth may best be regarded as the Roman  equivalent of the modem corporation.   Except in the case of this fourth form, which  was in most respects unique, the remedy of a socius  who had been defrauded, or who considered that the  agreement of partnership had been violated, or who  wished for an account or a dissolution, was either an  actio in factum or the more comprehensive actio pro  socio ■*.   1 17 Dig. 1. 48. " 17 Big. 2. 1.   3 17 Dig. 2. 5. * Cic. Rose. Com. 9.     Digitized by Microsoft®     170 CONTRACTS OV THE IVS GENTIVM.   Both these actions were of praetorian origin, and  the former was doubtless the experimental mode of  relief which prepared the way for the introduction of  the latter. At first we may fairly suppose the  Praetor to have granted an actio in factwm adapted  to the particular case, with a formula worded some-  what as follows : 8i paret iV™ N™ cum A" A° pactum  bonuentum^ fecisse de societate ad rem certam emendam  ideoque renuntiauisse societati ut solus em^ret^, quanti  ea res est tantam pecuniam, iudex, N'^ iV™ A" A"  condemna. s. n. p. a. When the pactum societatis  had thus been protected, and the juristic mind had  grown accustomed to regard societas in the light of a  contract, the Praetor then doubtless announced in  his Edict that he would grant an actio pro socio to  any aggrieved member of a societas. In this way  agreements of partnership became fully recognised  as contracts, and were provided with an actio in iiis  conoepta, the formula of which must have been thus  expressed':   Quod A' Agerius cum N" Negidio sodetatem coiit  universoru/m quae ex quaestu veniunt, quidquid oh  eam rem N"^ Negidium A" Agerio (or alterum alteri)  pro socio dare facere praestare oportet ex fide bona,  eius iudex N™ Negidium A" Agerio (or alterum  alteri) condemna. s. n. p. a.   The superiority of this honae fidei action to  the former remedy, as a mode of adjusting com-  plicated disputes arising out of a partnership, is  too obvious to require explanation. The actio in   1 17 Dig. 2. 71. "^ 17 Big. 2, 65. ir. 4.   3 Lenel, Ed. Perp. p. 237.     Digitized by Microsoft®     AGE OF ACTIO PRO SOCIO. l7l   factum may still however have proved useful in  certain cases.   Societas appears in Plautus with much less dis-  tinctness than either of the other three consensual  contracts. Socius is not used by him in a technical  or commercial sense, but means only companion ^ or  co-owner^. The nearest approach to an allusion to  societas in its more recent form is to be found in  Rudens^ where the shares of socii are mentioned;  but this is no reason for supposing that Plautus  knew of societal as a contract. The date of the  actio pro socio is impossible to fix, though Voigt^  has suggested that the Praetor P. Kutilius Rufas  must have been its author in the year 646 ^ Abso-  lute certainty on the subject is unattainable, because  we cannot tell whether this Rutilius originated or  merely mentioned the edict, nor can we positively  identify him with the Praetor of a.v.c. 646. On  these points there is hopeless controversy", so that  they must remain unsettled. But what we can do  with a certain measure of accuracy, is to trace the  process by which societal came to be regarded as a  contractual relation, and slowly grew in importance  till it called for the creation by the Praetor of a  honae fidei action to protect it. This action certainly  existed about the end of the seventh century, for  it is mentioned in the Lex Julia Municipalis of   1 Bacch. 5. 1. 19 ; Cist. 4. 2. 78.  ' Bud. i. 3. 95. ' 1. 4. 20 and 2. 6. 67.   * lus N. IV. 603 note 204.  5 38 Dig. 2. 1.   " See Husehke, Z. fur Civ. wnd Proc. 14. 19 ; Schilling, Inst.  §313.     Digitized by Microsoft®     172 CONTRACTS OF THE IVS GENTIVM.   A.V.C. 709 ^ and was discussed by Quintus Mucius  Scaeuola". A closer approximation to the date of  its "origin seems to be impossible.   1. Societas omnium bonorum.   The original conception of societas seems not to  have been that of a commercial combination, but of  a family. Not indeed that the term societas was  ever applied to the association of father, mother,  children and cognates; but they were practically  regarded as a single body, each member of which  was bound by solemn ties to share the good or bad  fortune which befell the rest. The duty of avenging  the death of a blood-relation, the duty of providing  a certain portion for children, as enforced by the  querela inofficiosi testamenti, the obsequia which  children owed to their parents, are illustrations of  the principle. Now this body, the family, could  hold common property: and here is the point at  which the family touches the institution of partner-  ship. The technical term which expressed the  tenancy in common of brothers in the family pro-  perty (hereditas), was consortivmi^, and the brother  co-tenants were called consortes. This institution  of consortium was of great antiquity, being even  found in the Sutras*. It is compared by Gellius'  to the relation of societas, and arose from the  descent or devise of the patrimonial estate to several  children who held it undivided. Division might at  any time be made among them by the actio familiae   1 Bruns, Font. p. 107. ^ gaj. ni. 149 ; Cic. Off. in. 17. 70.   » Cie. 2 Veir. ii. 3. 23 ; Paul. Diao. 72.   " Leist, Alt.-Ar. lus Gent. p. 414. ■> i. 9. 12.     Digitized by Microsoft®     SOCIETAS OMNIVM BONORVM. 173   erciscundas \ but they might often prefer to continue  the consortium, either because the property was  small, or because they wished to carry on an es-  tablished family business. If the latter course was  adopted, the tenancy in common became a partner-  ship, embracing in its assets the whole wealth of the  partners ; and it is easy to see how this natural part-  nership, if found to be advantageous, would soon be  copied by voluntary associations of strangers. Thus  socius, as we know from Cicero*, was often used as  a synonym of censors, and there can be no doubt  that consortium was the original pattern of the  societas omnium bonorum". That there were some  differences between the rules of consortium and those  of societas does not affect the question. For in-  stance *, the gains of the consortes were not brought  into the common stock, but those ot socii were; while  the death of a socius dissolved the societas, but that  of a consors did not ^ dissolve the consortium. These  points of difference and others " probably arose from  the juristic interpretation applied to societas, when  it had once become fairly recognised as a purely  commercial contract. But consortium and societas  omnium bonorum have two points in common which  show that they must have been historically connected,  (i) In societas omnium, bonorum there was a complete  and immediate transfer of property from the indi-  viduals to the societas'', whereas the obligations of   ■■ Paul. Diao. s. u. erctum. ^ Brut. i. 2.   3 Leist, Soc. 24 ; Pernioe, Z. der S. Stift. R. A. in. 85.  i 17 Dig, 2. 52. * Pernice, Labeo i. p. 69.   « See Pernice, Laieo i. 85-6. ' 17 Dig. 2. 1.     Digitized by Microsoft®     174 CONTRACTS OF THE IVS GENTIVM.   each remained distinct and were not shared by the  others'. Now this is exactly what would have  happened in consortium : the property would have  been common, but the obligation of each consors  would have remained peculiiar to himself, (ii) The  treatment of socii as brothers' is clearly also a  reminiscence of consortiv/m ; and this conception of  fratemitas, being peculiar to the societas omnium  bonorum^, makes its connection with the old con-  sortium still more evident.   The fraternal character of this particular societas  is responsible for the existence of a generous rule  which subsequently, under the Empire, became  extended so as to apply to the other kinds of societas^  The rule was that no defendant in an actio pro socio  should be condemned to make good any claim beyond  the actual extent of his means ^ This was known as  the beneficium competentiae ; and it gave rise to a  qualified formula for the actio pro socio, as follows :   Quod A' Agerius cum N" Negidio societatem  omnium bonorum emit, quidquid 6b earn, rem iV"'  Negidium A° Agerio dare f. p. oportet ex f. b.  dumtaxat in id quod i\r* Negidius facere potest,  quodue dolo malo fecerit quominus possit, eius index  N™ Negidiwm A" Agerio condemna. s. n. p. a.   2. Societas negotii uel rei alicuius.   This second form of partnership must have been  the most common, since it was presumed to be in-  tended whenever the term societas was alone used '.   1 17 Dig. 2. 3. 2 17 Dig. 2. 63. ' 17 Dig. 2. 63.   * 17 Dig. 2. 63. fr. 1. 42 Dig. 1. 16 and 22.   « 17 Dig. 2. 7.     Digitized by Microsoft®     THEORIES OF ACTIO PRO SOCIO. 175   It has also been derived from consortium by  Lastig\ His theory is that consortes, or brothers,  when they undertook a business in partnership  with one another^, often modified their relations  by agreement. The special agreement, he thinks,  then became the conspicuous feature of the partner-  ship, and the relations thus established were copied  by associations not of consortes but of strangers.  The object of the theory is to explain the correal  obligation of partners. This correality did not how-  ever exist at Rome^, except in the case of banking  partnerships, where we are told that it was a peculiar  rule made by custom*, so that Lastig's theory lacks  point. A further objection^ is that this theory does not  explain, but is absolutely inconsistent with, the exist-  ence of the actio pro socio as an actio famosa. The  fraternal relations existing between consortes could  never have suggested such a remedy, for Cicero in  his defence of Quinctius lays great stress on the  enormity of the brother's conduct in having brought  such a humiliatiag action against his client.   Another explanation of the actio pro socio is  given by Leist". He derives it from the actio so-  cietatis given by the Praetor against freedmen who  refused to share their earnings with their patrons.  This societas of the patron must have been a one-  sided privilege, like his right to the freedman's   1 Z. filr ges. Handelsrecht. xxiv. 409-428.   2 As in 26 Dig. 7. 47. 6.   3 14 Dig. 3. 13. 2 ; 17 Dig. 2. 82.   * Auet. ad Her. ii. 13. 19 ; 2 Dig. 14. 9,   5 As Perniee has pointed out, Labeo i. p. 94.   6 Soc. p. 32.     Digitized by Microsoft®     176 CONTRACTS OF THE IVS GENTIVM.   services' ; for the freedman could never have brought  an action against his patron, since he was not entitled  to any share in the patron's property. The actio  societatis was therefore a penal remedy available  only to the patron, and consequently it cannot pos-  sibly have suggested the bilateral actio pro socio  of partners. Nor can the bonae fidei character of  the actio pro socio be explained if we assume such  an origin.   The most reasonable view appears to be that  which regards the actio pro socio as the outcome of  necessity. The Praetor saw partnerships springing  up about him in the busy life of Rome. He saw  that the mutual relations of socii were unregulated  by law, as those of adpromissores had been before  the legislation described above in Chapter v. He  found that an actio in factum, based on the Edict  Pax>ta conuenta, was but an imperfect remedy; and  as an addition to the Edict was then the simplest  method of correcting the law, it was most natural  for him to institute an actio pro socio, in which  bona fides was made one of the chief requisites  simply because the mutual relations of socii had  hitherto been based upon fides \   3. Societas uectigalium uel pMicanorwm.   This kind of societas was a corporation rather  than a partnership, and we have proof in Livy that  such corporations existed long before the other kinds  of societas came to be recognised as contracts. These   1 38 Dig. 2. 1.   2 Cie. Quint. 6. 26 ; Q. Rose. 6. 16 ; S. Rose. 40. 116 ; 2 Verr.  III. 58. 134.     Digitized by Microsoft®     SOGIETAS AND COLLEGIVM. 177   societates acted as war-contractors^ collectors of taxes ^,  and undertakers of public works'. In one passage in  Livy * they are called redemtores, and we find three  societates during the second Punic War in A.v.c. 539"  supplying the State with arms, clothes and com. It  was perhaps the success of these societates publica-  norwm" which iatroduced the conception of com-  mercial and voluntary partnership. But still they  were utterly unlike partnerships', so that their his-  tory must have been quite different from that of the  other societates. They were probably derived from  the ancient sodalitates or collegia^, which were per-  petual associations, either religious (e.g. augurium  collegia), or administrative {quaestorum collegia), or  for mutual benefit, like the guilds of the Middle  Ages (fabrorwm collegia). This theory of their  origia is based upon three points of strong resem-  blance which seem to justify us in establishing a  close connection between societas and collegium:   (1) Both were regulated by law", and were  established only by State concessions or charters.   (2) Both had a perpetual corporate existence,  and were not dissolved by the death of any one  member "-   (3) Both were probably of Greek origin. We   > Liu. XXXIV. 6 in a.v.c. 559. ^ Liu. xxvii. 3 (a.v.c. 544).   » Liu. XXIV. 18 (A.V.C. 540) ; Cic. 2 Verr. i. 50. 150.  • XLii. 3 (a.v.c. 581). ' Liu. xxiii. 48-9.   " Liu. xxxix. 44 ; XXV. 3. '3 Dig. 4. 1.   8 Lex rep. of a.v.c. 631, cap. 10 ; Cic. leg. agr. ii. 8. 21 ; pro  domo 20. 51 ; PUnc. 15. 36.   9 GaiuB, 3 Dig. 4. 1 ; 47 Dig. 22. 1.   "I 28 Dig. 5. 59 fr. 1 ; 17 Dig. 2. 59 ; Cic. Brut. i. 1.   B. E. 12   Digitized by Microsoft®     178 CONTRACTS OF THE IVS GENTIVM.   are told that societates publiccmorum existed at  Athens', while Gaius^ derives from a law of Solon  the rule applying to all collegia, that they might  make whatever bye-laws they pleased, provided  these did not conflict with the public law.   These three facts may well lead us to derive this  particular form of societas from the collegium. We  know further that the jurists looked upon it as quite  different from the ordinary societas, and that it did  not have the actio pro socio as a remedy'- The  president or head of the societas was called manceps*,  or magister if he dealt with third parties ', and the  modes of suretyship which it used in its corporate  transactions were praedes and praedia', another  mark perhaps of its semi-public origin.   1 Arist. Bep. Ath. 52. 3 and of. Voigt, I. N. ii. 401.   2 47 Dig. 22. 4. 3 Voigt, Rom. BG. i. 808.   * Ps. Asc. in Cio. Diu. ; Paul. Diao. 151 s. u. manceps ; Cio. dam.   10. 25 ; Cic. Plane. 26. 64.   ' Paul. Diac. s. u. magisterare ; Cic. Att. v. 5. 3 ; Cio. 2 Verr.   11. 70. 169 ; ib. III. 71. 167.  ' Lex Mai. c. 65.     Digitized by Microsoft®     CHAPTER VII.   CONTRACTS OF THE IVS GENTIVM. Part II.   Real Contracts.   Art. 1. MvTWM. We have not yet really dis-  posed of all the consensual contracts, for we now  come to a class of obligations entered into without  formality and by the mere consent of the parties,  but ia which that consent was signified in one par-  ticular way, i.e. by the delivery of the object in  respect of which the contract was made. The con-  tracts of this class have therefore been teirmed Eeal  contracts, though they might with equal propriety be  called Consensual. The oldest of them all is mutumn,  the gratuitous loan of res fungibiles, and it stands  apart from the other contracts of its class in such  a marked way, that its peculiarities can only be  understood from its history. It differed from the  other so-called real contracts, (i) ia having for its  remedy the condictio, an actio stricti iuris; (ii) in  being the only one which conveyed ownership in the  objects lent, and did not require them to be returned  in specie. Both peculiarities requfre explanation.   12—2  Digitized by Microsoft®     180 CONTRACTS OF THE IVS GENTIVM.   The most important function of Contract in early-  times was the making of money loans, and for this  the Romans had three devices peculiarly their own,  first Tiexum, then sponsio, and lastly earpensilatio.  But these were available only to Roman citizens, so  that the legal reforms constituting the so-called ius  gentium naturally included new methods of per-  forming this particular transaction. One such in-  novation was the modification of sponsio, already  described, and the rise of stipulatio in its various  forms : another was the recognition of an agreement  followed by a payment as constituting a valid  contract, which might be enforced by the condictio,  like the older sponsio and expensilatio. This latter  innovation was the contract known as mutuwm. It  doubtless originated in custom, and was crystallised  in the Edict of some reforming Praetor.   As its object was money, or things analogous to  money in having no individual importance, such as  com, seeds, &c., the object naturally did not have to  be returned in, specie by the borrower.   Though the bare agreement to repay was suffi-  ciently binding as regards the principal sum, the  payment of interest on the loan could not be pro-  vided for by bare agreement, but had to be clothed  in a stipulation. This rule may have been due to  the fact that mutuum was originally a loan firom friend  to friend ; but it rather seems to indicate that bare  consensus was at first somewhat reluctantly tolerated.   In Plautus mutuum appears as a gratuitous loan,  generally made between friends^ and in sharp con-  > Cure. 1. 1. 67 and 2. 3. 51 ; Paeud. 1. 3. 76.     Digitized by Microsoft®     AGE OF MVTrVM. 181   trast to foenus, a loan with interest', which was  always entered into by stipulation. When mutuv/m  is used by Plautus to denote a loan on which interest  is payable, we must therefore understand that a  special agreement to that effect had been entered  into by stipulation, since mutuum was essentially  gratuitous.   From three passages " it is evident that mutuum  was recoverable by action in the time of Plautus*  (circ. A. V. c. 570), and it seems probable that Livy^  also uses it in a technical sense ^ If then we place  the date of the Lex Aebutia as late as A.v.c. 513,  and suppose, as Voigt does ', that mutuum being a  iuris gentium contract must have been subsequent  to that law, we shall be led to conclude that mutuum  came into use about the second quarter of the sixth  century. This theory as to date is supported by the  fact, which Karsten points out', that mutuum would  hardly have been possible without a uniform legal  tender, and that Rome did not appropriate to herself  the exclusive right of coinage till A.v.c. 486. We  thus see that the introduction of mutuum and that  of emtio uenditio, i.e. of the first real and the first  consensual contract, took place at about the same  time.   As regards its peculiar remedy we know that  money lent by mutuum was recoverable by a con-  dictio certae pecujiiae, with the usual sponsio and   1 Asin. 1. 3. 95.   2 Trin. 3. 2. 101 ; 4. 3. 44 ; Bacch. 2. 3. 16.   3 Cure. A.v.c. 560. ■^ xxxii. 2. 1. » Of A.v.c. 555.  6 I. N. IV. 614. ' Slip. p. 38.     Digitized by Microsoft®     182 CONTRACTS OF THK IVS GENTIVM.   restipulatio tertiae partis\ It seems, like expensila-  tio, to have received this stringent remedy by means  of juristic interpretation, which extended the meaning  and the remedy of pecimia certa credita so as to cover  this new form of loan. Thus we find credere often  used by Plautus in the sense of making a miwtvm/m *.   When this final extension had been made iu  the meaning of pecunia credita, we may reconstruct  the Edict on that subject as follows ° :   SI CERTVM PETETVR DE PECVNIA QVAM QVIS  CREDIDERIT EXPENSVMVE TVLERIT MVTVOVE DE-  DERIT NEVE EX IVSTA CAVSA SOLVERIT PROMISE-   RITVE, DE EO IVDICIVM DABO. The iudicium here  referred to was the condictio certae pecuniae, the  formula of which has already been given*.   We know that mutuvm, could be applied to other  fungible things besides money, such as wine, oil or  seeds, and in those cases the remedy must have been  the condictio triticaria'^.   FoENVS NAVTIGVM {Bdveiov vavTiKov). A con-  tract very similar to mviuvm,, which we know to  have existed in the Republican period, since we find  it mentioned by Seruius Sulpicius * and entered into  by Cato', was foeniis nauticum, a form of marine  insurance resembling bottomry^. It consisted of a  money loan (pecunia traiecticia) to be paid back  by the borrower, — ^invariably the owner of a ship, —   1 Cic. Rose. Com. 4. 13.   2 As in Pers. 1. 1. 37; Merc. 1. 1. 58; Pseud. 1. 5. 91.   s Voigt, I. N. IV. 616. •* p. 104. » 12 Dig. 1. 2.   8 22 Dig. 2. 8. ' Plutarch, Cat. Mai. 21.   ' Camazza, Dir. Com. p. 176 ff.     Digitized by Microsoft®     FOENVS NAVTIGVM. 183   only in the event of the ship's safe return from her  voyage. A slave or freedman of the lender apparently  went with the ship to guard against fraud'; but there  was no hjrpothecation of the ship, as in a modem  bottomry bond.   The contract resembled mutuum in being made  without formality; but its marked peculiarities  were:   (i) That it was confined to loans of money,  (ii) And to loans from insurers to ship-owners,  (iii) And because of the great risk it was not  a gratuitous loan, but always bore interest at a very  high rate ^ It is, however, quite possible that this  interest was not originally allowed as a part of  the formless contract, but that it was customary, as  Labeo states ', to stipulate for a severe poena in case  the loan was not returned. If that be so, the stipu-  l&tory poena spoken of by Seruius and Labeo must  have been the forerunner in the Republican period  of the onerous interest mentioned by Paulus'' as  an inherent part of this contract in his day.   Art. 2. CoMMODATVM. The next three real  contracts are not mentioned by Gains, who appa-  rently took his classification fi-om Seruius Sulpicius,  and it therefore seems certain that in the time of  Seruius and during the Republic they were not re-  garded as contracts, but as mere pacta praetoria.   Commodatum was the same transaction as mutuum  applied to a different object. In mutuum there was  a gratuitous loan of money or other res fungihilis,   1 Plut. Gat. 1. 0.; 45 Dig. 1. 122 fr. 1.   ■' 22 Big. 2. 7. ' 22 Big. 2. 9. " 22 Big. 2. 7.     Digitized by Microsoft®     184 CONTRACTS OF THE IVS GENTIVM.   whereas in commodatum the gratuitous loan was one  of a res nonfungihilis '   Both were originally acts of friendship, as their  gratuitous nature implies. Plautus shows us that in  his day the loan of money was not distinguished from  that of other objects, for he uses commodare^ and  iitendwm dare^ in speaking of a money loan, as well  as in describing genuine cases of commodatum. We  do not, however, discover from Plautus that commo-  datum, was actionable in his time, as mmiuwrn clearly  was. Vtendmn dare, we may note, is in his plays  a more usual term than commodare *. If it be asked  why the condictio was not extended to commodatum  as it was to mutwu/m, the answer is that the latter  always gave rise to a liquidated debt, whereas in a  case of commodatum the damages had first to be  judicially ascertained, and for this purpose the con-  dictio was manifestly not available.   The earliest mention of commodatum as an action-  able agreement occurs in the writings of Quintus  Mucins Scaeuola (ob. A.v.c. 672) quoted by Ulpian"  and Gellius *. Cicero significantly omits to mention  it in his list of bonae fidei contracts, and the Lex lulia  Municipalis (a.v.c. 709) contains no allusion to it'.  The peculiar rules of the agreement seem to have  become fixed at an early date. Quintus Mucins  Scaeuola is said to have decided that culpa leuis   ^ e.g. a scyphus, Plaut. Asin. 2. i. 38 or a chlamys, Men. i. i.  94.   2 Asin. 3. 3. 135. « Persa, 1. 3. 37.   * Aul. 1. 2. 18 ; Bvd. 3. 1. 9. » 13 Dig. 6. 5.   « VI. 15. 2. ' Bruns, Font. p. 107.     Digitized by Microsoft®     AGE OF COMMODATVM. 185   should be the measure of responsibility required from  the bailee (is cui commodatur), and to have established  the rule as to furtum usus, in cases where the res  commodata was improperly used. It seems therefore  probable that the Praetor recognised commodatum  at first as a pactum praetoriwn, and granted for  its protection an actio in factum, with the following  formula :   Si paret A™ Agerium N" Negidio rem qua  de agitur commodasse (or utendam dedisse) eamque  A" Agerio redditam non esse, quanti ea res erit,  tantam pecuniam N"^ Negidium A" Agerio condemna.  s. n. p. a.   The agreement between bailor and bailee pro-  bably did not come to be regarded as a regular  contract until after the time of Cicero. We must  therefore place the introduction of the actio commo-  dati at least as late as A.v.c. 710, and by so doing we  explain Cicero's silence. Whatever conclusion we  shall arrive at as to depositum must almost neces-  sarily be taken as applying to commodatum, also.  They both had double forms of action in the time  of Gaius\ neither is mentioned by Cicero, and  Scaeuola evidently dealt with them both together.  Hence their simultaneous origin seems almost  certain. The actio commodati is said to have been  instituted by a Praetor Pacuuius'', who, like Plau-  tus, used the words utendum dare instead of com-  modare. The terms of his Edict must therefore  have been:   1 IV. 47. 2 13 Dig. 6. 1.     Digitized by Microsoft®     186 CONTRACTS OF THE IVS GENTIVM.   QVOD QVIS VTENDVM DEDISSE DICETVR, DE EO  IVDICIVM DABOl   The author of this Edict was formerly supposed  by Voigt to be Pacuuius Antistius Labeo", the  father of Labeo the jurist ; but this statement has  recently been withdrawn' on the ground that this  Pacuuius, having been a pupil of Seruius Sulpicius *,  could not have been Praetor as early as the time of  Quintus Mucius. If however the above theory as to  the dates be correct, Voigt's former view may be  sound : Q. Mucius may have been speaking of the  actionable pactum, while Pacuuius may have been  the author of the true contract. The aMio com-  modati directa had a formula as follows: Qiiod A'  Agerius N" Negidio rem q. d. a. commodauit (or  utendam dedit) quidquid oh earn rem M™ Negi-  dium A" Agerio dare facere praestare oportet ex  fide bona, eius iudex N"^ Negidiwm A' Agerio con-  demna. s. n. p. a. It was doubtless in this form  that the action on a commodatum was unknown to  Cicero. He must have been familiar only with the  actio in factvmi, and for that very reason he must  have regarded com/modatwm not as a contract, but as  a pactum conuentum.   Art. 3. Depositvm. The most general word  denoting the bestowal of a trust by one person  upon another was commendare', and Voigt has  shown' that corrvmendaiumh was the technical term   1 I. N. III. 969. 2 I. N. in. 969 note 149G.   » B. HG. i. 622 note 25. * 1 Dig. 2. 2. 44.   ' Plant. Trin. 4. 3. 76 ; Cio. Fam. ii. 6. 5 ; 16 Diff. 3. 24 ; Cio.  Fin. III. 2. 9. « R. RG. i. App. 5.     Digitized by Microsoft®     OBIGIN OF DEPOSITVM. 187   for a particular kind of pactum. If the object of  commendatio '■ was the performance of some service,  the relation was a case of mandatwm'^ : if its object  was the keeping of some article in safe custody, the  relation was described as depositvmi^. This case  clearly shows how arbitrary is the distinction  drawn by the Roman jurists between Real and  Consensual Contract. Though starting, as we have  seen, from the same point, mandatum came to be  classed as a consensual, and depositv/m as a real  contract. This was simply because the latter dealt,  while the former did not deal, with the possession  of a definite res.   Depositum distinctly appears in Plautus* as an  agreement by which some object is placed in a  man's custody and committed to his care, though  deponere is not the word generally used by Plautus  to denote the act of depositing. He prefers the  phrase seruandimi dare, corresponding to utendvmi  dare, which we found to be his usual expression for  commodatum'. These very words, semandum dare,  were also used by Quintus Mucins Scaeuola in dis-  cussiDg depositum ', but we cannot ascertain from his  language whether or not the actio depositi was  already known to him. He may merely have been  discussing an actionable pactum,. Nor can we  infer from any passage of Plautus the existence  of depositum as a contract in his time. He seems   1 Cic. Fin. III. 20. 65. 2 Plant. Merc. 5. 1. 6.   3 16 Dig. 3. 24 ; Plant. Merc. 2. 1. 22. * Bacch. 2. 3. 72.   6 Merc. 2. 1. 14 ; Cure. 2. 8. 66 ; Bacch. 2. 8. 10.   8 Gell. VI. 15. 2.     Digitized by Microsoft®     188 CONTRACTS OF THE IVS GENTIVM.   rather to represent it, as Cicero does ', in the light of  a friendly relation based simply on fides '^-j and in  most of the Plautine passages the transaction is that  which was afterwards known as depositum irregulare,  i.e. the deposit of a package containing money either  at a banker's ', or with a friend *   Some have thought that there must have been  an action in Plautus' time for the protection of such  important trusts °, but Demelius° points out that  the actio furti (to which Paulus alludes as actio ex  catosa depositi) would have afforded ample protection  in most cases; and it would be extremely rash to  infer that either commodatum or d&positwm was  actionable in the sixth century of the City.   At first sight it even looks as though depositum,  was not protected by any action in the days of  Cicero. The passages in which he mentions it'  appear to treat the restoration of the res deposita  rather as a moral than a legal duty. Similarly  where he enumerates the bonae fidei actions',  where he mentions the persons qui bonam fidem  praestare debent ', and where he describes the indicia  de fide mala'^', he entirely leaves out the actio depositi  and does not make the slightest allusion to depositum.   But all this is equally true of commodatum^.  And since we have the clearest evidence that com-  modatum. was actionable in the time of Quintus   1 2 Verr. it. 16. 36. ^ Merc. 2. 1. 14.   5 Cure. 2. 3. 66. * Bacch. 2. 3. 101.   » Costa, Dir. Priv. p. 320. « Z. fur RG. ii. 224.   ' Farad, iii. 1. 21 ; Off. i. 10. 31 ; iii. 25. 95.  8 Off. III. 17. 70. 9 Top. 10. 42.   " N. D. III. 30. 7. " Gai. iv. 47.     Digitized by Microsoft®     LATENESS OF ACTIO DEPOSIT!. 189   Mucius ScaeuolaS we can hardly avoid the con-  viction that depositurn also was actionable in his  day by means of an actio in fojctvmi, whereas the  actio depositi was not introduced, as Voigt holds, till  the beginning of the eighth century==-   This theory of development, already applied to  mandatum and societas, has the advantage, not only  of explaining why commodatwm and depositvmi were  not numbered among hoTiae fidei contractus, but also  of accounting for the existence in Gains' day of their  double formulae which have puzzled so many jurists'.  We may then believe that depositurn was first made  actionable between A.v.c. 650 and 670 as a pactum  praetorium, and with the protection of an actio in  factum concepta as given by Gains: Si paret A™  Agerium apud N™ Negidiwm mensam argenteam  deposuisse eamque dolo N^ Negidii A" Agerio red-  ditam nan esse, quanti ea res erit, tantam pecuniam,  iudex, N™ Negidium A" Agerio condemnato. s. n.  p. a.   This formula was doubtless the only one pro-  vided for depositumi down to the end of Cicero's  career. But about A.v.c. 710^ juristic interpre-  tation began to regard commodatvmi and depositurn  as genuine contracts iuris ciuilis, and thereupon a  second formula was iutroduced into the Edict, with-  out disturbing the earlier one, so that depositurn, like  commodatwm, was finally recognised as a contract.   1 13 Dig. 6. 5. " Earn. EG. i. 623.   * See Muirhead's Gaim, p. 293 note.   * 41 Dig. 2. 3. 18 ; 16 Dig. 31. 1. 46 ; Trebatius was trib. pleb.  A.V.C. 707.     Digitized by Microsoft®     190 CONTRACTS OF THE IVS GENTIVM.   We know that the Praetor's Edict by which this  change was brought about ran somewhat thus : QVOD  NEQVE TVMVLTVS NEQVE INCENDII NEQVE RVINAE  NEQVE NAVFRAGII CAVSA DEPOSITVM SIT IN SIMPLVM,  EAEVM AVTEM RERVM QVAB SVPRA COMPREHENSAE  SVNT IN IPSVM IN DVPLVM, IN HEREDEM EIVS QVOD  DOLO MALO EACTVM ESSE DICETVR QVI MORTWS  SIT IN SIMPLVM, QVOD IPSIVS IN DVPLVM IVDICIVM   DABO'. The penalty of dwplwm shows that, where  the depositwn had been compelled by adverse cir-  cumstances, a violation of the contract was regarded  as peculiarly disgraceful and treacherous. In other  cases, where the depositwn was made under ordinary  circumstances, the amount recovered was simplwm,  and the new formula must have been that given by  Gaius " as follows : Quod A' Agenus apud N™ Negi-  dium mensam argenteam, deposuit qua de re agitur,  quidquid oh earn rem JSf™ Negidium A" Agerio dare  facere oportet ex fide bona, eius index N™ Negidiv/m  A" Agerio condemnato. s. n. p. a.   Art. 4. PiGNVS. The giving and taking of a  pledge appears in Plautus as a means of securing a  promise, but seems then to have belonged to the  class of friendly acts which the law did not con-  descend to enforce. In Gaptiui^ for instance, the slave  who had been pledged is demanded in a purely in-  formal way, and in Rudens^ pignus is a mere token  given to prove that the giver is speaking the truth.  Its connection with arrhabo is very close. Each  served to show that an agreement was seriously   1 16 Dig. 3. 1. ••' IV. 47.   » 5. 1. 18. • 2. 7. 23.     Digitized by Microsoft®     ^0270 PIGNERATICIA. 191   meant by the parties, or was a means of securing  credit as a substitute for money', and if the agree-  ment was broken, the pignus or arrhabo was doubtless  kept as compensation. This practice of giving pawns  or pledges was probably of great antiquity, but we  hear nothing of it from legal sources, simply because  it was an institution founded on mores alone. It pro-  bably applied only to moveables and res nee mancipi\  for res mancipi could be dealt with by a pactvmi  fiduciae annexed to mancipatio. Gaius ' derives the  word from pugnuTn, because a pledge was handed  over to the pledgee ; but the correct derivation is  doubtless from the same root as pactum, pepigi,  Pacht, Pfand*. Pignus must then have meant a  thing fixed or fastened, and so a security. And  this derivation suits the word in the phrase pignoris  capio equally well, without leading us to suppose that  the custom of giving a pledge was in any way derived  from the pignoris capio of the legis actio system.   We do not know when pignus became a contract,  though it certainly was so before the end of the  Republic. Long before being recognised as such it  doubtless enjoyed the protection of an actio in factum,  with a formula as follows : Si paret A^ Agerium N"  Negidio ratem q. d. a. oh pecuniam debitam pignori  dedisse, eamque pecuniam solutam, eoue nomine satis-  factum esse, aut per N™ Negidium stetisse quominus  soluatur, eamque ratem q. d. a. A" Agerio redditam  rum esse, quanti ea res erit, tantam, &c.^ In course   1 Bechmann, Kauf, ii. 416. ''■ 50 Big. 16. 238. ' ibid.   * Dernburg, FJr. i. p. 49 ; Beitr. zur vrgl. Sprachforsch. ii. p. 49.  ' Lenel, Ed. perp. p. 201.     Digitized by Microsoft®     192 CONTRACTS OF THE IVS GENTIVM,   of time the actio pigneraticia was introduced as an  alternative remedy, and Ubbelohde ' has argued that  since its place in the edict was between commodatum  and depositum, the Praetor must have introduced  the actio pign&raiicia after the actio com/modati and  before the actio depositi ; which seems a very plausi-  ble conjecture. We have no direct evidence of the  existence of an actio pigneraticia earlier than the  time of Alfenus Varus, a jurist of the later Re-  public"''; it is not mentioned by Cicero; in short  everything points to the origin of the contract of  pigrms as corresponding in age to that of commo-  datwm and depositwm. The language of the Edict  by which pignus was made a contract has not  survived, while the formula of its actio pigneraticia  resembled of course that of the actio depositi, and  need not therefore be given.   Though pignus was doubtless a very inadequate  security from the point of view of the pledgor, since  it might at any time be alienated or destroyed, it is  the only form which appears to be common in  Plautus, and of fiducia he shows us not a trace '-  Pignus seems to have been much used for making  wagers, and pignore certare was probably as common  as sponsione certare ^ which we treated of in a pre-  vious article.   The contracts of a kindred nature which seem to  have arisen even sooner than pignus will be discussed  in the next chapter.   1 6. der ben. Bealcont. p. 62. 2 13 jjjgr. 7. 30.   3 Costa, Dir. Priv. p. 262. * Bekker, Akt. i. 253.     Digitized by Microsoft®     CHAPTER VIII.   CONTRACTS NOT USUALLY CLASSIFIED AS SUCH.   Art. 1. FiDVCiA. We have examined in a  former chapter the early origin of the pactwm  fidudae^, a formless agreement annexed to a solemn  conveyance, by which the transferee of the object  conveyed as security agreed to reconvey, as soon as  the debt was paid, or whenever a given condition  should arise. As a result of the Edict Pacta conuenta,  and before Cicero's time'', this pactum became en-  forceable by the actio fiduciae.   This action was in factum, like the others of its  class, and its function was to award damages, but  it could not otherwise compel the actual recon-  veyance of the object. Its formula must have been  worded as follows^ :   Si paret A™ Ageriwm N" Negidio fwndum quo de  agitur oh pecuniam debitam fiduciae causa mancipio  dedisse, eamque pecuniam solutam eoue nomine satis-  f actum esse, aut per N™' Negidium stetisse quominus  solueretur, eumque fwndum redditum non esse, nego-   1 Supra, p. 78. '^ Cie. Off. in. 15. 61.   3 Lenel, Ed. Perp. p. 233.   B. E. 13   Digitized by Microsoft®     194 CONTEACTS NOT CLASSIFIED.   tiumue ita actum non esse ut inter honos T)ene agier  oportet et sine fraudatione, quanti ea res erit tantwm  pecuniam index N™ Negidium A" Agerio condemna.  s. n. p. a.   The peculiar clause "ut inter honos bene agier  oportet"'^ virtually made this a bonae fidei action.  That fact may perhaps explain vfhyfiduda was never  protected by a formula in ius coTicepta, and hence  was never regarded as a true contract.   Art. 2. Hypotheca. We have seen that there  were two ways in which a tangible security might be  given: (i) the object might be conveyed with a  pactum fiduciae, providing that it should be recon-  veyed on the fulfilment of a certain condition, or  else (ii) the mere detention of the object might be  granted on similar terms. In the former case  the pledge or its value could be recovered by  the actio fiduciae, in the latter by the actio pigne-  raticia whose origin we have just discussed. But  neither fiducia nor pignus was a contract of pledge  pure and simple; each consisted of an agreement  plus a delivery of the object.   The abstract conception of mortgage, i.e. pledging  by mere agreement, is a distinct advance upon both  these methods. The contract which embodied this  form of pledge was known as hypotheca ; and as its  name indicates it was borrowed from the Greeks,  from whom the Romans also took the Lex Rhodia  de iactu and the foeitms nauticum. Precisely the  same contract is found in the speeches of Demos-   1 Cic. Top. 17. 66.     Digitized by Microsoft®     ORIGIN OF HYPOTHECA. 195   thenes' under the name of v-trodr)Kr\, which could  he applied to moveables or immoveables, and even  to articles not yet in existence. The Romans how-  ever regarded hypotheca not as a contract but as a  pactum.   It is quite certain that a legal conception so refined  as the pactum hypothecae could not have had a place  in the legal system of the XII Tables. There are  passages in Festus" and Dionysius" in which the  words si quid pignoris and eveyypat^eiv have been  supposed to indicate the existence of some such  practice at an early period. But the evidence is  much too vague to supply trustworthy data, and we  may confidently assert that mortgage was unknown  to the early law*. Accordingly, we find that hy-  potheca was introduced and made actionable by  slow degrees. Its popular name was pignus oppo-  situm, as distinct from pignus depositum, the ordinary  pignut above described.   Its LQtroduction seems to have been one of the  many legal innovations produced by the large immi-  gration of strangers into Rome after the Second Punic  War. These strangers must generally have become  tenants of Roman landlords, since the lack of ius  commercii prevented their buying lands or houses,  and in order to secure his rent, the only resource  open to the landlord was to take the household goods  of these tenants as security. Such household goods  {inuecta illata) probably constituted in most cases  the only wealth of the foreign immigrant, conse-   1 Dernburg, Pfdr. i. p. 69. ^ s.u. nancitor.   " VI. 29. * Dernburg, Pfdr. i. 55.   13—2   Digitized by Microsoft®     196 CONTRACTS NOT CLASSIFIED.   quently the landlord could not remove them, and  the method of pignus was not available. The ex-  pedient which suggested itself was that the tenant  should pledge his goods without removal, by means  of a simple agreement. The relation thus created  was the original form of hypotheca and was precisely  analogous to that of a modern chattel mortgage.   As the idea was introduced by foreigners ', it was  very natural that this agreement of pledge should  have received a foreign name. Another class to  whom the new expedient was applied were the free  agricultural tenants (coloni) whose sole wealth often  consisted of their tools and other agricultural stock^.  The necessity of making a pledge without removal  is obvious in their case also.   I. It was for the protection of landlords that  a Praetor Saluius introduced the interdictum Salui-  anum, which seems to have been the first legal  recognition that hypotheca received. Its date is not  known. Formerly the Praetor Saluius lulianus,  author of the Edictum perpetuum, was regarded as  the inventor of this interdict, but his own language  in the Digest^ contradicts this supposition. The  most reasonable theory is that the interdict origi-  nated before the Edict Pacta conuenta (A.v.c. 627)  at about the end of the sixth century.   The fact that Plautus knew hypotheca as a mere  nudum pactum can hardly be doubted*. It is true  that he not only uses, as Terence does a little later ',   1 Dernburg, Pfdr. i. 56. " 4 Big. 15. 3. 1.   » 1.S Dig. 7. 22. * Demelius, Z.filr RG. ii. 232.   5 Phorm. 4. 3. 56.     Digitized by Microsoft®     INTERDIGTVM SALVIANVM. 197   the phrase pignori opponere ' to denote the making  of a pledge by mere agreement; but he also men-  tions the Greek technical term eTndi^Krj and seems  to use hypotheca as a metaphor'^. The testimony  to be gathered from these passages does not however  prove that hypotheca was actionable'.   The contents of the interdictum Saluianum can-  not be given with certainty. We only know two  things about it : (1) that it was a remedy of limited  scope, being available only against the tenant or  pledgor, but not against third parties to whom he  had transferred or sold or pledged the goods, and  (2) that the interdict was prohibitory and forbade  the pledgor to prevent the landlord from seizing  the objects which had been mortgaged.   (1) This first proposition is distinctly stated by  a constitution of Gordian", but flatly contradicted  by a passage in the Digest *. The latter authority,  however, seems open to strong suspicion " and the  fact that the actio Seruiana was presumably intro-  duced because the interdictum Saluianum was  inadequate further goes to prove the correctness of  Gordian's constitution.   (2) We may be fairly certain that the interdict  was prohibitory, like the interdictum utrvbi, and  not restitutory, as Huschke would have it'; since  the weight of authority is in favour of the former   1 Pseud. 1. 1. 85. * True. 2. 1. i.   3 Costa, Dir. priv. p. 264 ; Dernburg, Pfdr. i. p. 65.  * 8 God. 9. 1. = 43 Dig. 33. 1.   " Lenel, Z. der Sav. Stiftung, R. A, iii. 181.  7 Studien, p. 398.     Digitized by Microsoft®     198 CONTRACTS NOT CLASSIFIED.   view^ We may therefore accept KudorfiPs restora-  tion of its formula, which runs as follows*: Si  is homo quo de agitur est ex his rebus de quibus inter  te et conductorem (colonum, &c. &c.) conuenit, ut quae  in eu/m fwndum quo de agitw inducta illata ibi nata  factaue essent ea pignori tibi pro mercede eiusfimdi  essent, neque ea merces tibi soluta eoue nomine satis-  f actum, est aut per te stat quaminu^s soluatur, ita quo-  minus eum ducas uim fieri ueto.   II. The second remedy introduced to enforce  the formless agreement of mortgage was the actio  Seruiana, which was far more efficacious. Its author  cannot have been Seruius Sulpicius Rufus, the Mend  of Cicero, because he never was Praetor Vrbanus, and  the action must have existed long before his time.  The Praetor who devised it was doubtless one of the  many Seruii Sulpicii whose names constantly appear  in the fasti consulares, and its age is probably not  much less than that of the interdictum Saluianum.  The action was certainly younger than the interdict,  and an improvement upon it, because the jurists  treated the law of mortgage under the head of inter-  dict', which indicates that this was the form of the  original remedy. We may be sure that the interdict  is older than the Edict Pacta conuenta, for otherwise  it would not have been needed. And as soon as  pa(Aa were thus legally recognised, it is safe to say  that a more perfect remedy for hypotheca was sure   ' Dernburg, Pfdr. p. 59; Bachofen, Pfdr. p. 13; Keller, Re-  cemion. p. 977 and Eudorff, Pfandkl. p. 210 ; Lenel, Ed. Perp. p.  394. ■   2 Pfandkl. p. 209. Of. Budorff, Ed. Perp. 282.   ' Dernburg, Pfdr. i. p. 61.     Digitized by Microsoft®     ACTIO SERVIANA. 199   to be devised. The probability is then that the actio  Seruiana was one of the first products of the Edict  Pacta conuenta, partly because we know that the  interdict was an imperfect remedy, partly because  hypotheca was much in vogue at that early date.  Thus we may gather from Plautus' allusions that  hypotheca was already in a well developed state  about A.v.c. 570. Cato the Censor^ also seems to  have alluded to it, and Caec. Statins {oh. A.v.c.  586), as cited by Festus", unquestionably did so.  The curious circumstance that Cicero should have  mentioned it only twice ^ may perhaps be accounted  for by the fact that pignus in its looser sense was  always a synonym for hypotheca *, and as he mentions  it so seldom in its Greek form, we may suppose that  the term hypotheca was then only just coming into  general use. We know that pignus in the narrower  sense was distinguished by Ulpian from hypotheca as  sharply as we distinguish a pawn from a mortgage ^,  but the earlier writers lead us to infer that the  term pignus oppositum, or simply pignus, was origi-  nally the equivalent of hypotheca.   The effect of the actio Seruiana was probably a  mere enlargement of the scope of the interdictwm  ■ Saluianum, giving the landlord a legal hold upon  the inuecta illata of his tenant even in the possession  of third parties. But since the right of thus pledging  by agreement was as yet recognised only as between  the colonus or the house-tenant and his landlord,   1 jj. i{. 146. ^ s.u. reluere.   3 Att. n. 17 and Fam. xiii. 56. ■* 20 Dig. 1. 5.   » 13 Dig. 7. 9.     Digitized by Microsoft®     200 CONTRACTS NOT CLASSIFIED.   hypotheca was a transaction still confined to a small  class.   III. A final improvement was effected, perhaps  shortly after the one just mentioned, when the  Praetor granted an action on. the analogy of the actio  Seruiana, upon all agreements of pledge of whatever  description. From the creation of this action, known  as cuctio quasi Seruiana ^ or hypothecaria ", or simply  Seruiana^, dated the introduction of a law of mort-  gage applicable to objects of all kinds. The name  hypothecaria, which we find applied only to the last  of these three remedies, implies either that this was  the only action available for all forms of hypotheca, or  else that the Greek term was not introduced until  the contract had thus become general.   The formula of the CKtio quasi Seruiana or hypo-  thecaria was of course in factum concepta *, because  the pactum hypothecae never was treated as a con-  tractus iuris ciuilis, though it became in reality as  binding as any contract. The words are restored  by Lenel° as follows, in an action by the mortgagee  against a third party : Si paret inter A™ Agerium et  Ludum Titium, conuenisse ut ea res qua de agitur A°  Agerio pignori hypothecaeue esset propter pecuniam  debitam, eamque rem tunc cum conueniebat in bonis D  Titiifuisse, eamque pecuniam neque solutam neque eo  nomine satisfactum esse neque per A^ Agerium, stare  quominus soluatur, nisi eares A" Agerio arbitratu-tuo   1 4 Inst. 6. 7. 2 16 Dig. 1. 13.   ' Bachofen, Pfdr. p. 28.   * Ed. perp. p. 397 ; cf. Dernburg, Pfdr. i. p. 78.  ' ib. p. 81 ; cf. Budorfl, Ed. perp. 234.     Digitized by Microsoft®     AQTIO HYPOTHEOARIA. 201   restituetur, quanti ea res erit, tantam pecuniam index  N'" Negidium A" Agerio condemna. s, n. p. a.   No mortgage can be of much practical use unless  it empowers the creditor to sell the thing pledged,  so as to cover his loss. But it is evident that the  mere pledgee or mortgagee could have had no in-  herent right to sell or convey what did not belong to  him. This was an advantage possessed by fiduoia,  since the property was fully conveyed and could  therefore be disposed of as soon as the condition was  broken. The only way out of the difficulty both in  pignus and hypotheca was to make a condition of  sale part of the original agreement. This was un-  necessary under the Empire ^ when the power of sale  came to be implied in every hypotheca, but during  the Republic the power had to be explicitly re-  served, or else the vendor was liable for conversion  (furtumy. Even Gains " speaks as though a pactum  de uendendo was usual in his time. Labeo describes  a sale eoc pacta conuento^, but the usual name for the  clause of the agreement containing the power of sale  was lex ccmimissoria. When it became possible to  insert such a clause is uncertain, but Demburg  seems right in maintaining that, as the lex commis-  soria was known to Labeo and to the far more  ancient Greek law, it must certainly have been  customary at Rome long before the end of the  Republic.   1 13 Dig. 7. 4.   2 47 Dig. 2. 74 ; Demburg, Pfdr. i. p. 91. ^ n. 64.  * 20 Dig. 1. 35.   = Pfdr. I. p. 86 as against Baehofen, Pfdr. p. 157.     Digitized by Microsoft®     202 CONTRACTS NOT CLASSIFIED.   The custom of committing hypothecae to writing  (tabulae), which is indicated by Gaius', doubtless pre-  vailed also in the Republican period, the object of  the writing being simply to facilitate proof   When we translate hypotheca by the English  word mortgage, we must not forget that the latter  denotes technically a conveyance defeasible by con-  dition subsequent, closely resembling ^cZwcia, where-  as the former denoted the mere creation of a lien.   On the other hand it is true that our modem  mortgage has lost its original resemblance to fidma,  and has now become almost identical with hypotheca.   Art. 3. Praediatvea. This was a peculiar form  of suretyship which the Roman jurists never treated  as a contract, though it doubtless had a very ancient  origin. It was connected with the public emtiones  and locationes, and was the regular method by which  contractors or undertakers of public work gave bond  to do their work properly.   The transaction resembled the giving of sponsores  in private law. The friends of the contractor who  were willing to be his sureties (praedes) appeared  before the Praetor or other magistrate, and entered  into a verbal contract by which they bound them-  selves with all that they possessed. The magistrate,  we are told, asked each surety " Praesne es?" and  the surety answered "Praes"\ This has every  appearance of having been a formal contract like  sponsio, and it is difficult to accept the view of  Mommsen ^ who considers that the publicity of the   » 20 Dig. 1. 4 ; 22 Dig. 4. 4.   2 Paul. Diao. s.u. Praes. ' Stadtr. von Salpema, p. 468.     Digitized by Microsoft®     PRAEDIATVRA. 203   transaction leads us to infer its formless character.  If we follow him in assuming that praedes and  praedia were purely public institutions, how can we  explain the existence of the praedes litis et uindici-  arum, who certainly appeared in private suits ', and  how can we understand those passages in Plautus  and Cicero which clearly refer to praedes and praedia  in private transactions ^ ? If then we deny to prae-  diatura an exclusively public character, we must  class it with sponsio and uadimonium as another  formal mode of giving security.   The etymology which explains the word praes as  being the adverbial form of praesto is undoubtedly  false '. Ihering and Goppert ■* suppose that it comes  from the same root as praedium, and means one who  undertakes a liability. But in the Lex agraria the  spelling is praeuides instead of praedes, and this  indicates rather that the true derivation is from  prae and uas ', in the sense of " one who comes forth  and binds himself verbally "^ Pott' thinks that  uas was the generic term for surety, and that praes  was a composite word meaning a surety who makes  good (praestare) what he undertakes. Where the  derivation is so uncertain no safe conclusion can be  arrived at, and the origin of the contract must, in  this case as in that of the primitive vadimonium,  remain an enigma.   ' Cf. aduersariw, Gai. iv. 16, 94.   2 Plaut. Men. 4. 2. 28 ; Cio. Att. xiii. 3. 1.   3 Eivier, Untersuch. p. 29. * Z.fiir RG. iv. p. 26.^.  ' Fas bomfari, or uas from a root meaning " to bind."   8 Dernbur'g, P/dr. i. 27 ; Eivier, Untersueh. p. 14.  ' Etym. Forsch. iv. p. 417.     Digitized by Microsoft®     204 CONTRACTS NOT CLASSIFIED.   The obligation of the praes was enforced by com-  pulsory sale, the details of which we unfortunately  do not know. The expression praedes uendere^  shows approximately how the right was enforced^,  but it is uncertain whether this ^ meant to sell the  property of the surety, or merely to sell the claim  of the State against him K   Besides the personal responsibility thus assumed  by the praes, there was another kind of security  known as praedium^ which the principal might be  required to give. If the praedes furnished by him  were not sufficient, praediwm might be required as  an additional safeguard'; but we also find that  praedes or praedia might be separately given'.   The form in which a bond of praedia had to be  made was a written acknowledgment in the Treasury  (praediorum apud aerarium subsignatio), and the  only object capable of serving or being pledged as a  praedium was landed property owned by a Roman  citizen, and possessing all the qualities of a res  mancipi^. Hence the seciirity of praedia could not  in many instances have been available, for the  whole of solwm prouinciale and the holdings of  ager publicus in the possession of occupatorii would  of course have been excluded. The amount of   ' Cio. Phil. 11. 31. 78 ; aes Malac. cap. 64-5.  2 Dernburg, Pfdr. i. p. 28. ' Cic. 2 Verr. i. 54. 142.   * Goppert, Z.filr EG. iv. p. 288.   ' Lex agraria of a.v.c. 643 ; Lex Put. parieti faciendo, Bruns,  Font. p. 272, aes Malac. cap. 64.  ' ae» Malac. cap. 60.   ' e.g. Lex Acilia repet. 61, 66, 67, and Festus s.u. quadrantal,  8 Cic. Place. 32. 80.     Digitized by Microsoft®     PRAEDIORVM SVBSIGNATIO. 205   praedia which had to be given was entirely in the  magistrate's discretion ^ and to help him in his  decision we find that there existed praediorum  cognitores^ who were probably persons appointed  to assess the value of praedia, and responsible to  the State if their information was wrong.   As to the nature of the transaction effected by  praediorum subsignatio, there can be no doubt that  the old theory held by Savigny and others is incor-  rect ', and that the State did not in virtue of svbsig-  natio become absolute owner of the praedia. Rivier  and Demburg * have demonstrated that the State  merely acquired a lien, and that praediorum sub-  signatio was therefore a species of mortgage. The  classical sources fully support this view", and it is  certain that while the property was subject to this  lien its owner still had the right to sell it and to  exercise other rights of ownership*. A public sale  (uenditio praediorum) followed closely no doubt  upon the default of the debtor, but did not neces-  sarily accompany the sale of the goods of the praedes^  (uenditio praedium). At Rome the former sale was  made by the praefecti aerario, and in the Lex Mala-  citana the duumvirs or decuriones are empowered to  make it °.   A peculiarity of the sale of praedia was that the   ' Lex agraria, 73-4 ; Bruns, Font. p. 84.   2 aes Malac. cap. 65.   3 Savigny Heid. Jahrsch. 1809, p. 268 ; Walter, E. G. p. 587 ;  Hugo, R. G. 449.   * Pfdr. 1. p. 33. ° Varro L. L. v. 40 ; Lex agraria, 74.   8 50 Dig. 17. 205. ^ Gai. ii. 61 ; Cie. 2 Verr. i. 55. 144.   8 cap. 64; Bruns, Font. p. 146.     Digitized by Microsoft®     206 CONTKACTS NOT CLASSIFIED.   dominiwm residing in the owner became instantly  transferred to the praediaior or purchaser from the  State, without any act on the owner's part. The  only advantage reserved to the dispossessed owner  was an exceptional right of recovering his property  from the purchaser by usurec&ptio, i.e. conscious  usucapio S one of the few instances in which it was  possible to exercise usucapio otherwise than with a  bona fide colour of title. In this case, as the  praedia were always land, the statutory period of  two years was necessary to complete the adverse  possession.   The lex praediatoria mentioned in the aes  Malacitanum" has been thought to be a statute of  unknown date; but it more probably denotes some  collection of traditional terms used in praediatura  and analogous to a lex uenditionis in a contract of  sale °. The restoration of "praediatoria " in Gains'  is doubtful, and "censoria" seems much to be pre-  ferred.   The operation of praediatura as a general lien  on all the property of the praes was probably re-  cognised in the Republican period, although Dem-  burg° has doubts on this point. Such a lien is found  in the Lex Malacitana in the time of Domitian,  but this may have been an extension to the public  aerarium of the general hypotheca belonging to the  Imperial Fiscus. At any rate, there is no evidence  that the lien did not exist in our period ; and if it   1 Gai. II. 61. « cap. 64.   3 Boecking, Rom. Priv. B. 294.   * IV. 28. 5 Pfdr. X. p. 42.     Digitized by Microsoft®     ACTIO QVOD irssv. 207   did, we can readily see that the security of praedia-  tura was superior to that of sponsio.   It is perhaps natural that the subject of praedes  and praedia should be obscure, for the complicated  nature of the law of praediatura is attested by  Cicero \ who states that certain lawyers made it a  special study.   Art. 4. AcTiONES ADiECTiciAE. Besides intro-  ducing the actio mandati, the Praetor's edict en-  larged the scope of agency by instituting several  other important actions. These were the actiones  quod iussu, exercitoria, institoria, tributoria, de peculio  and de in rem uerso. In all of them alike the Prae-  tor's object was to fasten responsibility on some  superior with whose consent, or on whose behalf,  contracts had been made by an inferior. They  are known as actiones adiecticiae, because they were  considered as supplementing the ordinary actions  which could be brought against the inferior himself ^  As they made the principal liable on the contracts  of a subordinate, it is plain that they must have  been a most useful substitute for the complete law  of agency which the Romans always lacked. The  fact that they all had formulae in ius conceptae  points to a late origin, but they all doubtless origi-  nated before the end of the Republic.   (1) The actio quod iussu was an action in which  a son or slave, who had made a contract at the  bidding of his pater familias, was treated as a mere  conduit pipe, and by which the obligation was  directly imposed on the pater familias who had  1 Balb. 20. 45. = 14 Dig. 1. 5. fr. 1.     Digitized by Microsoft®     208 CONTRACTS NOT CLASSIFIED.   authorized it. Since Labeo mentioned the action as  though its practice was well developed in his day ',  we may fairly suppose that iussus was made action-  able in Republican times.   The formula was as follows :   Quod iussu N^ Negidii A" Agerius Gaio, cum is  in potestate N'' Negidii esset, togam uendidit qua de  re agitur, quidquid oh earn rem Oaium jUium A°  Agerio dare facere oportet ex fide hona, eius iudex  iV™ Negidium patrem A" Agerio condemna. s. n. p. a.  Here the express comniand of the superior was the  source of his obligation.   (2) The actio exercitoria was an action in which  a ship owner or charterer {exercitor) was held directly  responsible for the contracts of the ship master " (ma-  gister nauis). Its formula probably ran as follows:  Quod A^ Agerius de Lmio Titio magistro eius nauis  quam N' Negidius exercebat, eius rei causa in quam  L' Titius ibi praepositus fuit, incertum stipulatus est  qua de re agitur, quidquid oh earn rem N'^ Negidium  A" Agerio praestare oportet ex fide bona eius N™'  Negidium A" Agerio condemna. s. n. p. a.- It was  known to Ofilius in the eighth century of the city*,  and was very probably even older than his day.   The necessities of trade were obviously the source  from which this particular form of agency sprang,  because in an age of great commercial activity,  when even bills of lading were not yet introduced,  it was expedient that the delivery of goods or the   1 15 Dig. 4. 1. fr. 9. ^ x4 Big. 1. 1.   ' Baron, Abh. aus dem B. C. P. ii. 181.  * 14 Dig. 1. 1. fr. 9.     Digitized by Microsoft®     ACTIO INSTITORIA. 209   making of contracts by the master should be equi-  valent to a direct transaction with the ship owner  himself.   (3) The actio institoria no doubt had a like  commercial origin. This was an action by which  the person who employed a manager (institor) in a  busiuess from which he drew the profits, was made  liable for the debts and contracts of the manager.  This action was known as early as the days of  Seruius Sulpicius^, and its formula closely resem-  bled that of the actio exerdtoria. The difference  between these two and the actio quod iussu con-  sisted simply in the fact that the iiissus or autho-  rization was special in the one case, and general in  the other two. In the actiones exercitoria and insti-  toria an implied general authority was ascribed to the  agent in virtue of his praepositio^, whereas in the  actio quod iussu the agent had only an express special  authority. Thus the magister nauis and the institor  were genuine instances of general agents ; and we  find therefore, as we should have expected, that the  acts of the magister and institor only bound the  master when strictly within the scope of their  authority'. This is an excellent instance of the  manner in which Mercantile Law has developed the  same rules in ancient as in modem times.   (4) The actio tributoria was that by which a  master was compelled to pay over* to the creditors  of a son or slave trading with his consent whatever   1 14 Dig. 3. 5. fr. 1.   2 46 Dig. 3. 18 ; Oosta, Azioni ex. p. 40.   ' 14 Dig. 1. 1. fr. 7. •* tribui, 14 Dig. 4. 5. 5.   B. E. 14   Digitized by Microsoft®     210 CONTRACTS NOT CLASSIFIED.   profits he had received from the business. The  formula ran thus : Quod J.' Agerius de L" Titio qui  in potestate N'' Negidii est, cum is sciente N" Negidia  merce peculiari negotiaretur, -infiertum stipulatus est  qua de re agitur, quidquid ex ea merce et quod eo  nomine receptum est ob earn rem iV™ Negidium .4."  Agerio tribuere oportet, eius dumtaxat in id quod  minus^ dolo malo N^ Negidii A' Agerius tribuit,  N'^ Negidium A" Agerio condemna. s. n. p. a*.  This action was mentioned by Labeo ' and was there-  fore probably as old as the other actions of this class.  The knowledge and tacit approval of the superior  were here the source of his obligation.   (5) The actiones de peculio and de in rem uerso  were proceedings by which the master was required  to make good any obligation contracted by his son or  slave, to the extent of the son's or slave's peculium,  or of such gain as had accrued to himself {in rem  uersum) from the contract. Their peculiarity, as  Gaius has told us and as a recent writer conclu-  sively shows*, was that they had one formula with  an alternative condemnatio, which may be recon-  structed as follows : Quod A' Agerius de Lwdo Titio  cum is in potestate JV* Negidii esset, incertmn stipula-  tus est qua de re agitur, quidquid ob earn rem Lucius  Titius A" Agerio praestare oportet ex fde bona, eius  iudex N'^ Negidium A" Agerio, dumtaxat de peculio  quod penes N"^ Negidium est, uel siquid in rem N*  Negidii inde versv/m est, condemna. s. n. p. a. This   » 14 Dig. 7. 3. " Baron, I. c. p. 176.   ■< 14 Dig. 4. 7.   * Baron, I. e. pp. 136-69 ; cf. Lenel, Ed. perp. p. 225.     Digitized by Microsoft®     GONSTJTVTVM. 211   formula might be so modified that the actio de  peculio and the actio de in rem uerso could be  brought either separately or together. These actions  were known to Alfenus Varus^, and it is safe to say  that they were introduced some time before the  end of the Republic. The knowledge or consent of  the superior did not here have to be proved.   The difference between the actio tributoria and  the actio de peculio was considerable. By the former  the master contributed his profits and then shared in  the distribution as an ordinary creditor. But by the  latter he became a preferred creditor, and deducted  from his profits the whole amount owed to him by  the son or slave. The peculium in the latter case  was in fact only the balance remaining after the  debts of the son to him had been satisfied.   Art. 5. CoNSTiTVTVM AND Receptvm. To-  wards the end of the Republic we find two kinds of  formless contract by which a debt could be created,  and both of which seem to have sprung fi-om the  requirements of Roman commerce ■'.   I. Gonstitutmn.   The chief characteristics of this contract may be  gathered from the constitution by which Justinian  ftised together the actio recepticia and the actio  pecuniae constitutae\ as well as from allusions in  the Digest. It seems to have been a formless pro-  mise of payment at a particular date ; depending on  the existence of a prior indebtedness to which the   1 15 Dig. 3. 16. == Ihering, Geist iv. 218-220.   3 4 Cod. 18. 2.   14—2   Digitized by Microsoft®     212 CONTBACTS NOT CLASSIFIED.   constitutwm became accessory^; unconditional^; en-  forced by an actio pecuniae constitutae of Praetorian  origin which was in some cases perpetua and in  others armalis ; and available to persons of all classes.  Constitutwm is discussed by Labeo ', and is men-  tioned by Cicero^ in a way which makes it certain  that the actio pecuniae constitutae existed in his day.  The action originated in the Praetor's Edict",  and it was thereby provided with a penal sponsio  similar to that of the condictio certae pecuniae. This  leads us to infer that pecwnia constituta was treated  by the Praetor as analogous to pecunia credita ; es-  pecially as Gains • states that pecwnia credita strictly  meant only an unconditional obligation to pay money,  while we know from Justinian's constitution that  unless constitutvmi was unconditional no action would  lie. But why should the penal sponsio of the actio  pecuniae constitutae have been so much heavier than  that of the condictio, namely dimidiae instead of  tertian partis ' ? The reason given by Theophilus'  is that constitutum, was generally entered into by a  debtor in order to gain time for the payment of a  debt already due, and that the Praetor instituted  this severe action in order to discourage insolvent  debtors from this practice. Labeo on the contrary  says * that constitutvm, was made actionable in order  to enforce the payment of debts not yet due. Both   ' li Dig. 5.1. fr. 5 ' God. l.c.   » 13 Big. 5. 3. ■» Quint. 5. 18.   ' 13 Dig. 5. 16. » in. 124.   ' Gai. IT. 171. 8 Paraphr. iv. 6-8.   18 Dig. 5. 3.     Digitized by Microsoft®     TWO FORMS OF ACTION. 213   Labeo and Theophilus are probably right ', but each  takes a one-sided view. The Praetor's aim presu-  mably was to enforce the payment of any debt, due  or not due, which the debtor had made a renewed  promise to pay at a particular date. The breach of  a repeated promise (for constitutum always implied  a previous promise or indebtedness) was doubtless  regarded by the Praetor as a singularly flagrant  breach of faith ; and hence he compelled the defen-  dant to join in a penal sponsio dimidiae partis.   This actio per sponsionem was not however the  only remedy for a breach of constitutum. The Digest  shows that the usual form of redress was an actio in  factum ", which ' probably had a formula as follows :  Si paret Nwmeriimi Negidium Aulo Agerio X  millia Kal. Ian. se soluturwn constituisse, neque earn  pecuniam soluisse, neque per Agerium stetisse quo-  minus solueretur, eamque pecuniam cum constituehatur  debitam fuisse, quanti ea res est, tantam pecuniam,  Nunierium Negidium Aulo Agerio condemna ; and  that this actio in factum, existed in Gaius' time  as an alternative remedy seems probable from his  language in iv. 171. It is not likely that the actio  in factum arose simultaneously with the other; and  of the two Puchta* is almost certainly right in  assigning the earlier date to the actio per spon-  sionem, because the custom of sponsione prouocare  suggests an ancient origin. This sponsio, like that of  the condictio, was praeiudicialis, but it also contained  a strongly penal element. Its penal character was   » Bruns, Z. f. EG. i. p. 56. » 13 Dig. 5. 16. 2.   ' Bruns, loc. cit. p. 59. * Inst. ii. 168.     Digitized by Microsoft®     214 CONTRACTS NOT CLASSIFIED.   no doubt the reason why the action could not be  brought against the heir of the constituens, and why  it was annalis. As Bruns has shown, the remedy  after one year was probably the actio in factum'^,  by which the plain amount of the constitutwm could  alone be recovered.   Gonstitutvmn could be employed for the renewal of  the promisor's own debt {const, debiti proprii), as  well as of another man's {const, debiti alieni), and  this distinction was early allowed". In the later  law it could also be used to reinforce and render  actionable an obligatio naturalis. But this feature  probably did not exist at the origin of the action",  for the Praetor could only have had in mind pecunia  eredita, when he inflicted such a heavy penalty.  The effect of constitutwm was simply to reinforce the  old obligation by supplying a more stringent remedy.  It never produced novation as stipulatio or expensi-  latio * would have done.   //. Receptwm.   The agreement by which shipmasters, innkeepers  and stablemen {nautae, caupones, stabularii) under-  took to take care of the goods or property of their  customers was known as receptwm, and was enforced  by means of an actio de recepto as rigorously as the  duties of common carriers are enforced by the Common  Law". The Edict was expressed as follows : navtae  CAVPONES stabvlarii qvod cvivsqve salvvm fore   RECEPERINT NISI RESTITVENT, IN EOS IVDICIVM DABO ;   ' Bruns, loc. cit. J). 68. " 13 Dig. 5. 2.   ' Bruns, ib. p. 69. < 13 Dig. 5. 28.   ' Camazza, Dir. Com. p. 106.     Digitized by Microsoft®     THEORIES AS TO RECEPTVM. 215   and the remedy was an ordinary actio in factv/m,  authorising the judge to assess damages for the loss  or non-production of the goods.   But the contract which more nearly concerns us  is receptum argentariorum, the nature of which has  been a subject of much controversy.   This was a formless promise to pay on behalf of  another man, and we gather from Justinian ' that it  was capable of creating an original debt; capable  of being made svb conditione or in diem, and en-  forced by an actio recepticia, which was perpetua;  while Theophilus tells us' that it was confined to  bankers (argentarii). Bruns" indeed supposes that  receptum was a formal contract iuris ciuilis, while  according to Voigt* it was a species of expensilatio  devised by the argentarii. Lenel^ however has  proved that receptum argentariorum was introduced  and regulated by the Praetor in the same part of  the Edict in which he treated of the recepta  nautarum, cauponarum and stabulariorum. This  appears from the fact that in 13 Big. 5. 27 and  28, constituere has evidently been substituted by  Tribonian and his colleagues for recipere. Ulpian  treated of constitutwm in his 27th book on the  Edict": but the passage quoted in the Digest is  from his 14th book on the Edict, in which we know '  that he discussed the clause Nautae caupon^s sta-  hularii. So also Pomponius, who discussed recepta     1 4 Cod. 18. 2. 2 IV. 6-8. » Z. fur RG. i. 51 ft.   * fiSm. EG. I. 65-8. ' Z. der Sav. Stift. ii. 62 S.   « 13 Dig. 5. 16. ' 4 Dig. 9. 1.     Digitized by Microsoft®     216 CONTBACTS NOT CLASSIFIED.   nautarvm, &c. in his 34th book^ and constitutum in  his 8th*, is described' as mentioning the latter in his  34th book. Gains also is represented to have dealt  with constitutum in the very same book* in which he  treated of recepta nautarum^.   We must conclude, either that all these writers  introduced into their discussion of recepta naviarum  &c. the totally irrelevant subject of constitutum, or  that the subject thus introduced was not constitutum  but receptum argentariorum. If the latter conclusion '  is correct, as we may well believe that it must be, it  follows that receptum, argentariorum was, like the  other recepta, regulated by the Praetorian Edict, and  was therefore not a contract iuris ciuilis. By analogy  with the other recepta we may further conclude that  receptum argentariorum was formless, and hence  cannot have been a species of eoopensilatio. The  remedy was of course an actio in factum.   Recipere is used by Cicero* in the sense of under-  taking a personal guarantee, but with no clearly  technical meaning. Justinian states that the ouctio  recepticia was objectionable on account of its "solem-  nia uerba," and Lenel has explained this to mean  that the actio recepticia, being necessarily in factum  like those of the other recepta, had to contain the   words "si paret soluturwm recepisse. n^que   soluisse quod solui recepit," of which recipere was  a technical term. This term, being misunderstood  by the Greeks, was translated in Justinian's time   > 4 Dig. 9. 1 fr. 7 and 9. 3. ^ 13 Vig. 5. 5 fr. 5.   » ib. 5. 27. * ib. 5. 28. = 4 Dig. 9. 2 and 5.   « Phil. V. 18. 51. ; ad Fam. xiii. 17.     Digitized by Microsoft®     A MERCANTILE DEVICE. 217   by constitmre. It is almost certain that the actio  recepticia was known before the end of the Republic,  since Labeo evidently ' discussed it.   The function of receptum probably was to provide  an international mode of assigning indebtedness,  because transcriptio a persona in persona/m was not  available to peregrins'. The existence of the debt  between the creditor and the original debtor was  clearly not affected by the obligation of the argen-  tarius who had made a receptum; and from the  passages above cited Lenel also infers that receptum  pro alio was the only known form which the contract  ever took. In short, it seems to have closely resem-  bled the acceptance of a modem bill of exchange",  and it was doubtless made by the argentarius on  behalf of his clients or correspondents.   1 13 Dig. 5. 27. ' Lenel, Z. der Sav. Stift. n. 70.   3 Carnazza, Dir. Com. p. 93.     Digitized by Microsoft®     CONCLUSION.   We have now traced the development of the  Roman Law of Contract from an early stage of  Formalism, in which few agreements were actionable,  and those few provided with imperfect remedies,  to the almost complete maturity to which it had  attained by the end of the Republia   Of all the contracts which we have examined,  nexum and uadimoniwn seem to be the only two  that became obsolete during this period, while the  new contracts of Praetorian origin, such as depositwm  and constitutum, attained their full growth, as we  have seen ; so that the jurists of the Empire found  little to do besides the work of interpretation and  amplification.   The one great improvement, and almost the only  one, which the Law of Contract underwent sub-  sequently to our period, was the introduction of the  actiones praescriptis uerhis, by which the scope of  Real Contract was immensely enlarged.   Li other respects, the Law of the Republic  has the credit of having generated that wonderful-  system of Contract which later ages have scarcely  ever failed to copy, and which lies at the root of so  much of English Law.