Book III Intestate Succession.
A person dies intestate, who either has made no testament at all, or has made one not legally valid; or if the testament he has made is revoked, or made useless; or if no one becomes heir under it.
1. The inheritances of intestates, by the law of the Twelve Tables, belong in the first place to the sui heredes.
2. And, as we have observed before, those as sui heredes who, at the death of the deceased, were under his power; as a son or a daughter, a grandson or a granddaughter by a son, a great-grandson or great-granddaughter by a grandson of a son; nor does it make any difference whether these children are natural or adopted. We must also reckon among them those, who, though not born in lawful wedlock, nevertheless, according to the tenor of the imperial constitutiones, acquire the rights of sui heredes by being presented to the curiae of their cities; as also those to whom our own constitutiones refer, which enact that, if any person has lived with a woman not originally intending to marry her, but whom he is not prohibited to marry, and shall have children by her, and shall afterwards, feeling towards her the affection of a husband, enter into an act of marriage with her, and have by her sons or daughters, not only those born after the settlement of the dowry shall be legitimate, and in the power of the father, but also those born before, who gave occasion to the legitimacy of the children born after. And this law shall obtain, although no children are born subsequent to the making of the act of dowry, or those born are all a great-grandson or great-granddaughter, are not reckoned the sui heredes, unless the person preceding them in degree has ceased to be under the power of the decedent, either by death, or some other means, as by emancipation. For, if a son, when the grandfather died, was under the power of his father, the grandson cannot be suus heres of his grandfather; and so with regard to all other descendants. Posthumous children, also, who would have been under the power of their father, if they had been born in his lifetime, are sui heredes.
3. Sui heredes may become heirs, without their knowledge, and even though insane; for in every case in which inheritances may be acquired without our knowledge, they may also be acquired by the insane. At the death of the father, ownership in an inheritance is at once continued; accordingly, the authority of a tutor is not necessary, as inheritances may be acquired by sui heredes without their knowledge: neither does an insane person acquire by assent of his curator, but by operation of law.
4. But sometimes a child becomes a suus heres, although he was not under power at the death of his parent; as when a person returns from captivity after the death of his father. He is then made a suus heres by the ius postliminii.
5. On the contrary, it may happen that a child who, at the death of his parent, was under his power, is not his suus heres: as when a parent after his decease, is adjudged to have been guilty of treason. and his memory is thus made infamous. He can then have no suus heres, as it is the fiscus that succeeds to his estate. In this case it may be said that there has in law been a sui heres, but that he has ceased to be so.
6. A son, or a daughter, and a grandson or granddaughter by another son, are called equally to the inheritance; nor does the nearer in degree exclude the more remote; for it seems just that grandsons and granddaughters should succeed in the place of their father. For the same reason, a grandson or granddaughter by a son, and a great-grandson or great-granddaughter by a grandson, are called together. And since grandsons and granddaughters, great-grandsons and great-granddaughters, succeed in place of their parent, it appeared to follow that inheritances should not be divided per capita, but per stirpes; so that a son should possess one-half, and the grandchildren, whether two or more, of another son, the other half of the inheritance. So, where there were grandchildren by two sons, one or two perhaps by the one, and three or four by the other, the inheritance will belong half to the grandchild or the two grandchildren by the one son, and half to the three or four grandchildren by the other son.
7. When it is asked whether such a person is a suus heres, we must look to the time at which it was certain that the deceased died without a testament, including therein the case of the testament being abandoned. Thus, if a son is disinherited and a stranger is instituted heir, and after the death of the son it becomes certain that the instituted heir will not be heir, either because he is unwilling or unable to be so, in this case the grandson of the deceased becomes the suus heres of his grandfather; for, at the time when it was certain that the deceased died intestate, there exists only the grandchild, and of this there can be no doubt.
8. And although a child is born after the death of his grandfather, yet, if he was conceived in the lifetime of his grandfather, he will, if his father is dead, and his grandfather's testament abandoned, become the suus heres of his grandfather. But a child both conceived and born after the death of his grandfather, could not become the suus heres, although his father should die and the testament of his grandfather be abandoned; because he was never allied to his grandfather by any tie of relationship. Neither is a person adopted by an emancipated son to be reckoned among the children of the father of his adoptive father. And not only are these adoptive children of an emancipated son incapable of taking the inheritance as children of the deceased grandfather, but they cannot demand possession of the goods as the nearest agnati. Thus much concerning sui heredes.
9. Emancipated children by the civil law have no right to the inheritance of their father; being no longer under the power of their parent, they are not his sui heredes, nor are they called to inherit by any other right under the law of the Twelve Tables. But the praetor, obeying natural equity, grants them the possession of goods called unde liberi, as if they had been under the power of their father at the time of his death, and this, whether they stand alone, or whether there are also others, who are sui heredes. Thus, when there are two children, one thus emancipated, and the other under power at his father's death, the latter, by the civil law, is alone the heir, and alone the suus heres: but, as the emancipated son, by the indulgence of the praetor, is admitted to his share, the suus heres becomes heir only of a part.
10. But those who, after emancipation, have given themselves in adoption, are not admitted as children to the possession of the effects of their natural father, that is if, at the time of his death, they are still in their adoptive family. But, if, in the lifetime of their natural father, they have been emancipated by their adoptive father, they are then admitted to receive the goods of their natural father exactly as if they had been emancipated by him, and had never entered into the adoptive family. Accordingly, with regard to their adoptive father, they become from that moment strangers to him. But if they are emancipated by their adoptive father after the death of their natural father, they are equally considered as strangers to the adoptive father; and yet do not gain the position of children with regard to the inheritance of their natural father. This has been so laid down because it was unreasonable that it should be in the power of an adopter to determine to whom the inheritance of a natural father should belong, whether to his children, or to the agnati.
11. The rights of adoptive children are therefore less than those of natural children, who, even after emancipation, retain the rank of children by the indulgence of the praetor, although they lose it by the civil law. But adopted children, when emancipated, lose the rank of children by the civil law, and are not aided by the praetor. And the distinction between the two cases is very proper, for the civil law cannot destroy natural rights; and children cannot cease to be sons and daughters, grandsons and granddaughters, because they cease to be sui heredes. But adopted children, when emancipated, become instantly strangers; for the rights and title of son or daughter, which they have only obtained by adoption, may be destroyed by another ceremony of the civil law, that, namely, of emancipation.
12. The same rules are observed in the possession of goods which the praetor gives contra tabulas to children who have been passed over, that is, who have neither been instituted heirs, nor properly disinherited. For the praetor calls to this possession of goods those children under the power of their father at the time of his death, and those also who are emancipated; but he excludes those who are in an adoptive family at the decease of their natural father. So, too, adoptive children emancipated by their adoptive father, as they are not admitted to succeed their adoptive father ab intestato, much less are they admitted to possess the goods of their adoptive father contrary to his testament, for they cease to be included in the number of his children.
13. It is, however, to be observed that children still remaining in an adoptive family, or who have been emancipated by their adoptive father, after the decease of their natural father, who dies intestate, although not admitted by the part of the edict calling children to the possession of goods, are admitted by another part, by which the cognati of the deceased are called. They are, however, only thus admitted in default of sui heredes, emancipated children, and agnati. For the praetor first calls the children, both the sui heredes and those emancipated, then the legitimi heredes, and then the cognati.
14. Such were the rules that formerly obtained; but they have received some emendation from our constitutio relating to persons given in adoption by their natural parents. For cases have occurred in which sons have lost by adoption their succession to their natural parents, and, the tie of adoption being easily dissolved by emancipation, have lost the right of succeeding to either parent. Correcting, therefore, as usual, what is wrong, we have promulgated a constitutio enacting that when a natural father has given his son in adoption, the rights of the son shall be preserved exactly as if he had still remained in the power of his natural father, and no adoption had taken place; except only in this, that the person adopted may succeed to his adoptive father if he dies intestate. But, if the adoptive father makes a testament, the adoptive son can neither by the civil law nor under the praetorian edict obtain any part of the inheritance, whether he demands possession of the effects contra tabulas, or alleges that the testament is inofficious: for an adoptive father is under no obligation to institute or disinherit his adopted son, there being no natural tie between them, not even if the adopted son has been chosen among three brothers, according to the senatusconsultum Sabinianus, for even in this case the son does not obtain the fourth part of his adoptive father's effects, nor has he any actio whereby to claim it. But persons adopted by an ascendant are excepted in our constitutio; for, as natural and civil rights both concur in their favor, we have thought proper to preserve to this adoption its effect under the old law, as also to the arrogatio of a paterfamilias. But this, in all its details, may be collected from the tenor of the above-mentioned constitutio.
15. The ancient law, favoring descendants from males, called only grandchildren so descended to the succession as sui heredes, in preference to the agnati, while grandchildren born of daughters, and great-grandchildren born of granddaughters, were reckoned among cognati, and succeeded only after the agnati to their maternal grandfather and great-grandfather, or to their grandmother, or great grandmother, maternal or paternal. But the emperors would not suffer such a violence against nature to continue without an adequate alteration; and, inasmuch as the name of the grandchild and great-grandchild is common, as well to descendants by females as by males, they gave all the same right and order of succession. But, that persons whose privileges rested not only on nature but also on the ancient law might enjoy some peculiar advantage, they thought it right that the portions of grandchildren, great-grandchildren, and other lineal descendants of a female should be somewhat diminished, so that they should not receive so much by a third part as their mother or grandmother would have received, or, when the succession is the inheritance of a woman, as their father or grandfather, paternal or maternal would have received; and, although there were no other descendants, if they entered on the inheritance, the emperors did not call the agnati to the succession. And as, upon the decease of a son, the law of the Twelve Tables calls the grandchildren and great-grandchildren, male and female, to represent their father in the succession to their grandfather, so the imperial constitutiones calls them to take in succession the place of their mother or grandmother, subject only to the above-mentioned deduction of a third part.
16. But, as there still remained matter of dispute between the agnati and the above-mentioned grandchildren, the agnati claiming the fourth part of the estate of the deceased by virtue of a constitutio, we have rejected this constitutio, and have not permitted it to be inserted into our code from that of Theodosius. And in the constitutio we have ourselves promulgated we have completely departed from the provisions of those former constitutiones, and have enacted that agnati shall take no part in the succession of the deceased, when there are grandchildren born of a daughter, or great-grandchildren born of a granddaughter, or any other descendants from a female in the direct line; as those in a collateral line ought not to be preferred to direct descendants. This constitutio is to prevail from the date of its promulgation in its full force, as we here again enact. And as the old law ordered, that between the sons of the deceased and his grandsons by a son, every inheritance should be divided per stirpes, and not per capita, so we also ordain that a similar distribution shall be made between sons and grandsons by a daughter, and between grandsons and granddaughters, great-grandsons and great-granddaughters, and all other descendants in a direct line; so that the children of either branch may receive the share of their mother or father, their grandmother or grandfather, without any diminution; and, if of the one branch there should be one or two children, and of the other branch three or four, then the one or two shall have one-half, and the three or four the other half of the inheritance.
1. The inheritances of intestates, by the law of the Twelve Tables, belong in the first place to the sui heredes.
2. And, as we have observed before, those as sui heredes who, at the death of the deceased, were under his power; as a son or a daughter, a grandson or a granddaughter by a son, a great-grandson or great-granddaughter by a grandson of a son; nor does it make any difference whether these children are natural or adopted. We must also reckon among them those, who, though not born in lawful wedlock, nevertheless, according to the tenor of the imperial constitutiones, acquire the rights of sui heredes by being presented to the curiae of their cities; as also those to whom our own constitutiones refer, which enact that, if any person has lived with a woman not originally intending to marry her, but whom he is not prohibited to marry, and shall have children by her, and shall afterwards, feeling towards her the affection of a husband, enter into an act of marriage with her, and have by her sons or daughters, not only those born after the settlement of the dowry shall be legitimate, and in the power of the father, but also those born before, who gave occasion to the legitimacy of the children born after. And this law shall obtain, although no children are born subsequent to the making of the act of dowry, or those born are all a great-grandson or great-granddaughter, are not reckoned the sui heredes, unless the person preceding them in degree has ceased to be under the power of the decedent, either by death, or some other means, as by emancipation. For, if a son, when the grandfather died, was under the power of his father, the grandson cannot be suus heres of his grandfather; and so with regard to all other descendants. Posthumous children, also, who would have been under the power of their father, if they had been born in his lifetime, are sui heredes.
3. Sui heredes may become heirs, without their knowledge, and even though insane; for in every case in which inheritances may be acquired without our knowledge, they may also be acquired by the insane. At the death of the father, ownership in an inheritance is at once continued; accordingly, the authority of a tutor is not necessary, as inheritances may be acquired by sui heredes without their knowledge: neither does an insane person acquire by assent of his curator, but by operation of law.
4. But sometimes a child becomes a suus heres, although he was not under power at the death of his parent; as when a person returns from captivity after the death of his father. He is then made a suus heres by the ius postliminii.
5. On the contrary, it may happen that a child who, at the death of his parent, was under his power, is not his suus heres: as when a parent after his decease, is adjudged to have been guilty of treason. and his memory is thus made infamous. He can then have no suus heres, as it is the fiscus that succeeds to his estate. In this case it may be said that there has in law been a sui heres, but that he has ceased to be so.
6. A son, or a daughter, and a grandson or granddaughter by another son, are called equally to the inheritance; nor does the nearer in degree exclude the more remote; for it seems just that grandsons and granddaughters should succeed in the place of their father. For the same reason, a grandson or granddaughter by a son, and a great-grandson or great-granddaughter by a grandson, are called together. And since grandsons and granddaughters, great-grandsons and great-granddaughters, succeed in place of their parent, it appeared to follow that inheritances should not be divided per capita, but per stirpes; so that a son should possess one-half, and the grandchildren, whether two or more, of another son, the other half of the inheritance. So, where there were grandchildren by two sons, one or two perhaps by the one, and three or four by the other, the inheritance will belong half to the grandchild or the two grandchildren by the one son, and half to the three or four grandchildren by the other son.
7. When it is asked whether such a person is a suus heres, we must look to the time at which it was certain that the deceased died without a testament, including therein the case of the testament being abandoned. Thus, if a son is disinherited and a stranger is instituted heir, and after the death of the son it becomes certain that the instituted heir will not be heir, either because he is unwilling or unable to be so, in this case the grandson of the deceased becomes the suus heres of his grandfather; for, at the time when it was certain that the deceased died intestate, there exists only the grandchild, and of this there can be no doubt.
8. And although a child is born after the death of his grandfather, yet, if he was conceived in the lifetime of his grandfather, he will, if his father is dead, and his grandfather's testament abandoned, become the suus heres of his grandfather. But a child both conceived and born after the death of his grandfather, could not become the suus heres, although his father should die and the testament of his grandfather be abandoned; because he was never allied to his grandfather by any tie of relationship. Neither is a person adopted by an emancipated son to be reckoned among the children of the father of his adoptive father. And not only are these adoptive children of an emancipated son incapable of taking the inheritance as children of the deceased grandfather, but they cannot demand possession of the goods as the nearest agnati. Thus much concerning sui heredes.
9. Emancipated children by the civil law have no right to the inheritance of their father; being no longer under the power of their parent, they are not his sui heredes, nor are they called to inherit by any other right under the law of the Twelve Tables. But the praetor, obeying natural equity, grants them the possession of goods called unde liberi, as if they had been under the power of their father at the time of his death, and this, whether they stand alone, or whether there are also others, who are sui heredes. Thus, when there are two children, one thus emancipated, and the other under power at his father's death, the latter, by the civil law, is alone the heir, and alone the suus heres: but, as the emancipated son, by the indulgence of the praetor, is admitted to his share, the suus heres becomes heir only of a part.
10. But those who, after emancipation, have given themselves in adoption, are not admitted as children to the possession of the effects of their natural father, that is if, at the time of his death, they are still in their adoptive family. But, if, in the lifetime of their natural father, they have been emancipated by their adoptive father, they are then admitted to receive the goods of their natural father exactly as if they had been emancipated by him, and had never entered into the adoptive family. Accordingly, with regard to their adoptive father, they become from that moment strangers to him. But if they are emancipated by their adoptive father after the death of their natural father, they are equally considered as strangers to the adoptive father; and yet do not gain the position of children with regard to the inheritance of their natural father. This has been so laid down because it was unreasonable that it should be in the power of an adopter to determine to whom the inheritance of a natural father should belong, whether to his children, or to the agnati.
11. The rights of adoptive children are therefore less than those of natural children, who, even after emancipation, retain the rank of children by the indulgence of the praetor, although they lose it by the civil law. But adopted children, when emancipated, lose the rank of children by the civil law, and are not aided by the praetor. And the distinction between the two cases is very proper, for the civil law cannot destroy natural rights; and children cannot cease to be sons and daughters, grandsons and granddaughters, because they cease to be sui heredes. But adopted children, when emancipated, become instantly strangers; for the rights and title of son or daughter, which they have only obtained by adoption, may be destroyed by another ceremony of the civil law, that, namely, of emancipation.
12. The same rules are observed in the possession of goods which the praetor gives contra tabulas to children who have been passed over, that is, who have neither been instituted heirs, nor properly disinherited. For the praetor calls to this possession of goods those children under the power of their father at the time of his death, and those also who are emancipated; but he excludes those who are in an adoptive family at the decease of their natural father. So, too, adoptive children emancipated by their adoptive father, as they are not admitted to succeed their adoptive father ab intestato, much less are they admitted to possess the goods of their adoptive father contrary to his testament, for they cease to be included in the number of his children.
13. It is, however, to be observed that children still remaining in an adoptive family, or who have been emancipated by their adoptive father, after the decease of their natural father, who dies intestate, although not admitted by the part of the edict calling children to the possession of goods, are admitted by another part, by which the cognati of the deceased are called. They are, however, only thus admitted in default of sui heredes, emancipated children, and agnati. For the praetor first calls the children, both the sui heredes and those emancipated, then the legitimi heredes, and then the cognati.
14. Such were the rules that formerly obtained; but they have received some emendation from our constitutio relating to persons given in adoption by their natural parents. For cases have occurred in which sons have lost by adoption their succession to their natural parents, and, the tie of adoption being easily dissolved by emancipation, have lost the right of succeeding to either parent. Correcting, therefore, as usual, what is wrong, we have promulgated a constitutio enacting that when a natural father has given his son in adoption, the rights of the son shall be preserved exactly as if he had still remained in the power of his natural father, and no adoption had taken place; except only in this, that the person adopted may succeed to his adoptive father if he dies intestate. But, if the adoptive father makes a testament, the adoptive son can neither by the civil law nor under the praetorian edict obtain any part of the inheritance, whether he demands possession of the effects contra tabulas, or alleges that the testament is inofficious: for an adoptive father is under no obligation to institute or disinherit his adopted son, there being no natural tie between them, not even if the adopted son has been chosen among three brothers, according to the senatusconsultum Sabinianus, for even in this case the son does not obtain the fourth part of his adoptive father's effects, nor has he any actio whereby to claim it. But persons adopted by an ascendant are excepted in our constitutio; for, as natural and civil rights both concur in their favor, we have thought proper to preserve to this adoption its effect under the old law, as also to the arrogatio of a paterfamilias. But this, in all its details, may be collected from the tenor of the above-mentioned constitutio.
15. The ancient law, favoring descendants from males, called only grandchildren so descended to the succession as sui heredes, in preference to the agnati, while grandchildren born of daughters, and great-grandchildren born of granddaughters, were reckoned among cognati, and succeeded only after the agnati to their maternal grandfather and great-grandfather, or to their grandmother, or great grandmother, maternal or paternal. But the emperors would not suffer such a violence against nature to continue without an adequate alteration; and, inasmuch as the name of the grandchild and great-grandchild is common, as well to descendants by females as by males, they gave all the same right and order of succession. But, that persons whose privileges rested not only on nature but also on the ancient law might enjoy some peculiar advantage, they thought it right that the portions of grandchildren, great-grandchildren, and other lineal descendants of a female should be somewhat diminished, so that they should not receive so much by a third part as their mother or grandmother would have received, or, when the succession is the inheritance of a woman, as their father or grandfather, paternal or maternal would have received; and, although there were no other descendants, if they entered on the inheritance, the emperors did not call the agnati to the succession. And as, upon the decease of a son, the law of the Twelve Tables calls the grandchildren and great-grandchildren, male and female, to represent their father in the succession to their grandfather, so the imperial constitutiones calls them to take in succession the place of their mother or grandmother, subject only to the above-mentioned deduction of a third part.
16. But, as there still remained matter of dispute between the agnati and the above-mentioned grandchildren, the agnati claiming the fourth part of the estate of the deceased by virtue of a constitutio, we have rejected this constitutio, and have not permitted it to be inserted into our code from that of Theodosius. And in the constitutio we have ourselves promulgated we have completely departed from the provisions of those former constitutiones, and have enacted that agnati shall take no part in the succession of the deceased, when there are grandchildren born of a daughter, or great-grandchildren born of a granddaughter, or any other descendants from a female in the direct line; as those in a collateral line ought not to be preferred to direct descendants. This constitutio is to prevail from the date of its promulgation in its full force, as we here again enact. And as the old law ordered, that between the sons of the deceased and his grandsons by a son, every inheritance should be divided per stirpes, and not per capita, so we also ordain that a similar distribution shall be made between sons and grandsons by a daughter, and between grandsons and granddaughters, great-grandsons and great-granddaughters, and all other descendants in a direct line; so that the children of either branch may receive the share of their mother or father, their grandmother or grandfather, without any diminution; and, if of the one branch there should be one or two children, and of the other branch three or four, then the one or two shall have one-half, and the three or four the other half of the inheritance.
XIII. Obligationes.
Let us now pass to obligationes. An obligation is a tie of law, which binds us, according to the rules of our civil law, to render something.
1. The principal division of obligationes is into two kinds, civil and praetorian. Civil obligationes are those constituted by the laws, or, at least, recognized by the civil law. Praetorian obligationes are those which a praetor has established by his own authority; they are also called honorary.
2. A further division separates them into four kinds, for they arise ex contractu or quasi ex contractu, ex maleficio or quasi ex maleficio. Let us first treat of those which arise from a contract; which again are divided into four kinds, according as they are formed by the thing, by word of mouth, by writing, or by consent. Let us examine each kind separately.
1. The principal division of obligationes is into two kinds, civil and praetorian. Civil obligationes are those constituted by the laws, or, at least, recognized by the civil law. Praetorian obligationes are those which a praetor has established by his own authority; they are also called honorary.
2. A further division separates them into four kinds, for they arise ex contractu or quasi ex contractu, ex maleficio or quasi ex maleficio. Let us first treat of those which arise from a contract; which again are divided into four kinds, according as they are formed by the thing, by word of mouth, by writing, or by consent. Let us examine each kind separately.
XIV. Other Ways of Contracting an Obligatio.
An obligatio may be contracted by the thing, as, for example, by giving a mutuum. This always consists of things which may be weighed, numbered, or measured, as wine, oil, corn, coin, brass, silver, or gold. In giving these things by number, measure or weight, we do so that they may become the property of those who receive them. The identical things lent are not returned, but only others of the same nature and quality; and hence the term mutuum, because what I give from being mine becomes yours. From this contract arises the actio termed condictio.
1. A person, also, who receives a payment which is not due to him, and which is made by mistake, is bound re, i. e., by the thing; and the plaintiff may have against him an actio condictitia to recover what he has paid. For the condictio Si paret eum dare oportere may be brought against him, exactly as if he had received a mutuum. Thus a pupil, to whom a payment has been made by mistake without the authorization of his tutor, is not subject to a condictio indebitti, any more than he would be by the gift of a mutuum. This species of obligatio, however, does not seem to arise from a contract, since he, who gives in order to acquit himself of something due from him, intends rather to dissolve than to make a contract.
2. A person, too, to whom a thing is given as a commodatum, i. e., is given that he may make use of it, is bound re, and is subject to the actio commodati. But there is a wide difference between him and a person who has received a mutuum; for the thing is not given him that it may become his property, and he therefore is bound to restore the identical thing he received. And, again, he who has received a mutuum, if by any accident, as fire, the fall of a building, shipwreck, the attack of thieves or enemies, he loses what he received, still remains bound. But he who has received a thing lent for his use, is indeed bound to employ his utmost diligence in keeping and preserving it; nor will it suffice that he should take the same care of it, which he was accustomed to take of his own property, if it appear that a more careful person might have preserved it in safety; but he has not to answer for loss occasioned by superior force, or extraordinary accident, provided the accident is not due to any fault of his. If, however, you take with you on a journey the thing lent you to make use of, and you lose it by the attack of enemies or robbers, or by shipwreck, you are undoubtedly bound to restore it. A thing is properly said to be commodatum when you are permitted to enjoy the use of it, without any recompense being given or agreed on; for, if there is any recompense, the contract is that of locatio, as a thing, to be a commodatum, must be lent gratuitously.
3. A person with whom a thing is deposited is bound re, and is subject to the actio depositi, and must give back the identical thing which he received. But he is only answerable if he is guilty of fraud, and not for a mere fault, such as carelessness or negligence; and he cannot, therefore, be called to account if the thing deposited, being carelessly kept, is stolen. For he who commits his property to the care of a negligent friend, should impute the loss to his own want of caution.
4. A creditor, also, who has received a pledge, is bound re, for he is obliged to restore the thing he has received, by the actio pigneratitia. But, inasmuch as a pledge is given for the benefit of both parties, of the debtor that he may borrow more easily, and of the creditor that repayment may be better secured, it has been decided that it will suffice if the creditor employs his utmost diligence in keeping the thing pledged; if, notwithstanding this care, it is lost by some accident, the creditor is not accountable for it, and he is not prohibited from suing for his debt.
1. A person, also, who receives a payment which is not due to him, and which is made by mistake, is bound re, i. e., by the thing; and the plaintiff may have against him an actio condictitia to recover what he has paid. For the condictio Si paret eum dare oportere may be brought against him, exactly as if he had received a mutuum. Thus a pupil, to whom a payment has been made by mistake without the authorization of his tutor, is not subject to a condictio indebitti, any more than he would be by the gift of a mutuum. This species of obligatio, however, does not seem to arise from a contract, since he, who gives in order to acquit himself of something due from him, intends rather to dissolve than to make a contract.
2. A person, too, to whom a thing is given as a commodatum, i. e., is given that he may make use of it, is bound re, and is subject to the actio commodati. But there is a wide difference between him and a person who has received a mutuum; for the thing is not given him that it may become his property, and he therefore is bound to restore the identical thing he received. And, again, he who has received a mutuum, if by any accident, as fire, the fall of a building, shipwreck, the attack of thieves or enemies, he loses what he received, still remains bound. But he who has received a thing lent for his use, is indeed bound to employ his utmost diligence in keeping and preserving it; nor will it suffice that he should take the same care of it, which he was accustomed to take of his own property, if it appear that a more careful person might have preserved it in safety; but he has not to answer for loss occasioned by superior force, or extraordinary accident, provided the accident is not due to any fault of his. If, however, you take with you on a journey the thing lent you to make use of, and you lose it by the attack of enemies or robbers, or by shipwreck, you are undoubtedly bound to restore it. A thing is properly said to be commodatum when you are permitted to enjoy the use of it, without any recompense being given or agreed on; for, if there is any recompense, the contract is that of locatio, as a thing, to be a commodatum, must be lent gratuitously.
3. A person with whom a thing is deposited is bound re, and is subject to the actio depositi, and must give back the identical thing which he received. But he is only answerable if he is guilty of fraud, and not for a mere fault, such as carelessness or negligence; and he cannot, therefore, be called to account if the thing deposited, being carelessly kept, is stolen. For he who commits his property to the care of a negligent friend, should impute the loss to his own want of caution.
4. A creditor, also, who has received a pledge, is bound re, for he is obliged to restore the thing he has received, by the actio pigneratitia. But, inasmuch as a pledge is given for the benefit of both parties, of the debtor that he may borrow more easily, and of the creditor that repayment may be better secured, it has been decided that it will suffice if the creditor employs his utmost diligence in keeping the thing pledged; if, notwithstanding this care, it is lost by some accident, the creditor is not accountable for it, and he is not prohibited from suing for his debt.
XV. Verbal Obligationes.
An obligatio by word of mouth is contracted by means of a question and an answer, when we stipulate that anything shall be given to, or done for us. It gives rise to two actiones---the conditio, when the stipulation is certain, and the actio ex stipulatu, when it is uncertain. The term stipulatio is derived from stipulum, a word employed by the ancients to mean "firm," and coming perhaps from stipes, the trunk of a tree.
1. Formerly, the words used in making this kind of contract were as follows---Spondes? do you engage yourself? Spondeo, I do engage myself. Promittis? do you promise? Promitto, I do promise. Fidepromittis? do you promise on your good faith? Fidepromitto, I do promise on my good faith. Fideiubes? do you make yourself fideiussor? Fideiubeo, I do make myself fideiussor. Dabis? will you give? Dabo, I will give. Facies? will you do? Faciam, I will do. And it is immaterial whether the stipulatio is in Latin or in Greek, or in any other language, so that the parties understand it; nor is it necessary that the same language should be used by each person, but it is sufficient if the answer agree with the question. So two Greeks may contract in Latin. Anciently, indeed, it was necessary to use the solemn words just mentioned, but the constitutio of the Emperor Leo was afterwards enacted, which makes unnecessary this solemnity of the expressions, and only requires the apprehension and consent of each party, in whatever words it may be expressed.
2. Every stipulatio is made simply, or with the introduction of a particular time, or conditionally. Simply, as "Do you engage to give five aurei?" in this case the money may be instantly demanded. With the introduction of a particular time, as when a day is mentioned on which the money is to be paid, as "Do you engage to give me aurei on the first of the kalends of March?" that which we stipulate to give at a particular time becomes immediately due, but cannot be demanded before the day arrives, nor can it even be demanded on that day, for the whole of the day is allowed to the debtor for payment, as it is never certain that payment has not been made on the day appointed until that day is at an end.
3. But, if you stipulate thus "Do you engage to give me ten aurei annually, as long as I live?" the obligatio is understood to be made simply, and is perpetual; for a debt cannot be due for a time only; but the heir, if he demands payment, will be repelled by the exceptio pacti.
4. A stipulatio is made conditionally, when the obligatio is made subject to the happening of some uncertain event, so that it takes effect if such a thing happens, or does not happen, as, for instance, "Do you engage to give five aurei, if Titius is made consul?" Such a stipulatio as "Do you engage to give five aurei if I do not go up to the Capitol?" is in effect the same as if the stipulatio had been, that five aurei should be given to the stipulator at the time of his death. From a conditional stipulatio, there arises only a hope that the thing will become due; and this hope we transmit to our heirs, if we die before the condition is accomplished.
5. It is customary to insert a particular place in a stipulatio, as, for instance, "Do you engage to give me at Carthage?" and this stipulatio, although it appears to be made simply, yet necessarily implies a delay sufficient to enable the person who promises to pay the money at Carthage. And therefore, if anyone at Rome stipulates thus "Do you engage to give to me this day at Carthage?" the stipulatio is useless, because the thing promised is impossible.
6. Conditions, which relate to time present or past, either instantly make the obligatio void, or do not suspend it in any way; as, for instance, "If Titius has been consul, or if Maevius is alive, do you engage to give me?" If the thing mentioned is not really the case, the stipulatio is void; if it is the case, the stipulatio is immediately valid. Things certain, if regarded in themselves, although uncertain as far as our knowledge is concerned, do not delay the formation of the obligatio.
7. Not only things, but acts, may be the subject of a stipulatio: as when we stipulate that something shall, or shall not, be done. And, in these stipulationes, it will be best to subjoin a penalty, lest the amount included in the stipulatio should be uncertain, and the plaintiff should therefore be obliged to prove how great his interest is. Therefore, if any one stipulates that something shall be done, a penalty ought to be added as thus: "If the thing is not done, do you engage to give ten aurei by way of penalty?" But, if by one single question a stipulatio is made that some things shall be done, and that other things shall not be done, there ought to be added some such clause as this: "If anything is done contrary to what is agreed on, or anything agreed on is not done, then do you engage to give ten aurei by way of penalty?"
1. Formerly, the words used in making this kind of contract were as follows---Spondes? do you engage yourself? Spondeo, I do engage myself. Promittis? do you promise? Promitto, I do promise. Fidepromittis? do you promise on your good faith? Fidepromitto, I do promise on my good faith. Fideiubes? do you make yourself fideiussor? Fideiubeo, I do make myself fideiussor. Dabis? will you give? Dabo, I will give. Facies? will you do? Faciam, I will do. And it is immaterial whether the stipulatio is in Latin or in Greek, or in any other language, so that the parties understand it; nor is it necessary that the same language should be used by each person, but it is sufficient if the answer agree with the question. So two Greeks may contract in Latin. Anciently, indeed, it was necessary to use the solemn words just mentioned, but the constitutio of the Emperor Leo was afterwards enacted, which makes unnecessary this solemnity of the expressions, and only requires the apprehension and consent of each party, in whatever words it may be expressed.
2. Every stipulatio is made simply, or with the introduction of a particular time, or conditionally. Simply, as "Do you engage to give five aurei?" in this case the money may be instantly demanded. With the introduction of a particular time, as when a day is mentioned on which the money is to be paid, as "Do you engage to give me aurei on the first of the kalends of March?" that which we stipulate to give at a particular time becomes immediately due, but cannot be demanded before the day arrives, nor can it even be demanded on that day, for the whole of the day is allowed to the debtor for payment, as it is never certain that payment has not been made on the day appointed until that day is at an end.
3. But, if you stipulate thus "Do you engage to give me ten aurei annually, as long as I live?" the obligatio is understood to be made simply, and is perpetual; for a debt cannot be due for a time only; but the heir, if he demands payment, will be repelled by the exceptio pacti.
4. A stipulatio is made conditionally, when the obligatio is made subject to the happening of some uncertain event, so that it takes effect if such a thing happens, or does not happen, as, for instance, "Do you engage to give five aurei, if Titius is made consul?" Such a stipulatio as "Do you engage to give five aurei if I do not go up to the Capitol?" is in effect the same as if the stipulatio had been, that five aurei should be given to the stipulator at the time of his death. From a conditional stipulatio, there arises only a hope that the thing will become due; and this hope we transmit to our heirs, if we die before the condition is accomplished.
5. It is customary to insert a particular place in a stipulatio, as, for instance, "Do you engage to give me at Carthage?" and this stipulatio, although it appears to be made simply, yet necessarily implies a delay sufficient to enable the person who promises to pay the money at Carthage. And therefore, if anyone at Rome stipulates thus "Do you engage to give to me this day at Carthage?" the stipulatio is useless, because the thing promised is impossible.
6. Conditions, which relate to time present or past, either instantly make the obligatio void, or do not suspend it in any way; as, for instance, "If Titius has been consul, or if Maevius is alive, do you engage to give me?" If the thing mentioned is not really the case, the stipulatio is void; if it is the case, the stipulatio is immediately valid. Things certain, if regarded in themselves, although uncertain as far as our knowledge is concerned, do not delay the formation of the obligatio.
7. Not only things, but acts, may be the subject of a stipulatio: as when we stipulate that something shall, or shall not, be done. And, in these stipulationes, it will be best to subjoin a penalty, lest the amount included in the stipulatio should be uncertain, and the plaintiff should therefore be obliged to prove how great his interest is. Therefore, if any one stipulates that something shall be done, a penalty ought to be added as thus: "If the thing is not done, do you engage to give ten aurei by way of penalty?" But, if by one single question a stipulatio is made that some things shall be done, and that other things shall not be done, there ought to be added some such clause as this: "If anything is done contrary to what is agreed on, or anything agreed on is not done, then do you engage to give ten aurei by way of penalty?"
XVI. Obligatio By Consent.
Obligationes are formed by the mere consent of the parties in the contracts of sale, of letting to hire, of partnership, and of mandatum. An obligatio is, in these cases, said to be made by the mere consent of the parties, because there is no necessity for any writing, nor even for the presence of the parties: nor is it requisite that anything should be given to make the contract binding, but the mere consent of those between whom the transaction is carried on suffices. Thus these contracts may be entered into by those who are at a distance from each other by means of letters, for instance, or of messengers. In these contracts each party is bound to the other to render him all that equity demands, while in verbal obligationes one party stipulates and the other promises.
XVII. Buying & Selling.
The contract of sale is formed as soon as the price is agreed upon, although it has not yet been paid, nor even an earnest given; for what is given as an earnest only serves as proof that the contract has been made. This must be understood of sales made without writing; for with regard to these we have made no alteration in the law. But, where there is a written contract, we have enacted that a sale is not to be considered completed unless an instrument of sale has been drawn up, being either written by the contracting parties, or at least signed by them, if written by others; or if drawn up by a tabellio, it must be formally complete and finished throughout; for as long as anything is wanting, there is room to retreat, and either the buyer or seller may retreat, without suffering loss; that is, if no earnest has been given. If earnest has been given, then, whether the contract was written or unwritten, the purchaser, if he refuses to fulfill it, loses what he has given as earnest, and the seller, if he refuses, has to restore double; although no agreement on the subject of the earnest was expressly made.
1. It is necessary that a price should be agreed upon, for there can be no sale without a price. And the price must be fixed and certain. If the parties agree that the thing shall be sold at the sum at which Titius shall value it, it was a question much debated among the ancients, whether in such a case there is a sale or not. We have decided, that when a sale is made for a price to be fixed by a third person, the contract shall be binding under this condition---that if this third person does fix a price, the price to be paid shall be determined by that which he fixes, and that according to his decision the thing shall be delivered and the sale perfected. But if he will not or cannot fix a price, the sale is then void, as being made without any price being fixed on. This decision, which we have adopted with respect to sales, may reasonably be made to apply to contracts of letting to hire.
2. The price should consist in a sum of money. It has been much doubted whether it can consist in anything else, as in a slave, a piece of land, or a toga. Sabinus and Cassius thought that it could. And it is thus that it is commonly said that exchange is a sale, and that this form of sale is the most ancient. The testimony of Homer was quoted, who says that part of the army of the Greeks procured wine by an exchange of certain things. The passage is this:-
The long-haired Achaeans procured wine,
some by giving copper, others by giving shining steel,
others by giving hides, others by giving oxen, others by giving slaves.
The authors of the opposite school were of a contrary opinion: they thought that exchange was one thing and sale another, otherwise, in an exchange, it would be impossible to say which was the thing sold, and which the thing given as the price; for it was contrary to reason to consider each thing as at once sold, and given as the price. The opinion of Proculus, who maintained that exchange is a particular kind of contract distinct from sale, has deservedly prevailed, as it is supported by other lines from Homer, and by still more weighty reasons adopted by preceding emperors: it has been fully treated in our Digests.
3. As soon as the sale is contracted, that is, in the case of a sale made without writing, when the parties have agreed on the price, all risk attaching to the thing sold falls upon the purchaser, although the thing has not yet been delivered to him. Therefore, if the slave dies or receives an injury in any part of the body, or a whole or a portion of the house is burnt, or a whole or a portion of the land is carried by the force of a flood, or is diminished or deteriorated by an inundation, or by a tempest making havoc with the trees, the loss falls on the purchaser, and although he does not receive the thing, he is obliged to pay the price, for the seller does not suffer for anything which happens without any design or fault of his. On the other hand, if after the sale the land is increased by alluvion, it is the purchaser who receives the advantage, for he who bears the risk of harm ought to receive the benefit of all that is advantageous. If a slave who has been sold runs away or is stolen, without any fraud or fault on the part of the seller, we must inquire whether the seller undertook to keep him safely until he was delivered over; if he undertook this, what happens is at his risk; if he did not undertake it, he is not responsible. The same would hold in the case of any other animal or any other thing, but the seller is in any case bound to make over to the purchaser his right to a real or personal actio, for the person who has not delivered the thing is still its owner; and it is the same with regard to the actio of theft, and the actio damni iniuria.
4. A sale may be made conditionally or unconditionally; conditionally, as, for example, "If Stichus suits you within a certain time, he shall be purchased by you as such a price."
5. A sale is void when a person knowingly purchases a sacred or religious place, or a public place, such as a forum or basilica. If, however, deceived by the vendor, he has supposed that what he was buying was profane or private, as he cannot have what he purchased, he may bring an actio ex empto to recover whatever it would have been worth to him not to have been deceived. It is the same if he has purchased a freeman, supposing him to be a slave.
1. It is necessary that a price should be agreed upon, for there can be no sale without a price. And the price must be fixed and certain. If the parties agree that the thing shall be sold at the sum at which Titius shall value it, it was a question much debated among the ancients, whether in such a case there is a sale or not. We have decided, that when a sale is made for a price to be fixed by a third person, the contract shall be binding under this condition---that if this third person does fix a price, the price to be paid shall be determined by that which he fixes, and that according to his decision the thing shall be delivered and the sale perfected. But if he will not or cannot fix a price, the sale is then void, as being made without any price being fixed on. This decision, which we have adopted with respect to sales, may reasonably be made to apply to contracts of letting to hire.
2. The price should consist in a sum of money. It has been much doubted whether it can consist in anything else, as in a slave, a piece of land, or a toga. Sabinus and Cassius thought that it could. And it is thus that it is commonly said that exchange is a sale, and that this form of sale is the most ancient. The testimony of Homer was quoted, who says that part of the army of the Greeks procured wine by an exchange of certain things. The passage is this:-
The long-haired Achaeans procured wine,
some by giving copper, others by giving shining steel,
others by giving hides, others by giving oxen, others by giving slaves.
The authors of the opposite school were of a contrary opinion: they thought that exchange was one thing and sale another, otherwise, in an exchange, it would be impossible to say which was the thing sold, and which the thing given as the price; for it was contrary to reason to consider each thing as at once sold, and given as the price. The opinion of Proculus, who maintained that exchange is a particular kind of contract distinct from sale, has deservedly prevailed, as it is supported by other lines from Homer, and by still more weighty reasons adopted by preceding emperors: it has been fully treated in our Digests.
3. As soon as the sale is contracted, that is, in the case of a sale made without writing, when the parties have agreed on the price, all risk attaching to the thing sold falls upon the purchaser, although the thing has not yet been delivered to him. Therefore, if the slave dies or receives an injury in any part of the body, or a whole or a portion of the house is burnt, or a whole or a portion of the land is carried by the force of a flood, or is diminished or deteriorated by an inundation, or by a tempest making havoc with the trees, the loss falls on the purchaser, and although he does not receive the thing, he is obliged to pay the price, for the seller does not suffer for anything which happens without any design or fault of his. On the other hand, if after the sale the land is increased by alluvion, it is the purchaser who receives the advantage, for he who bears the risk of harm ought to receive the benefit of all that is advantageous. If a slave who has been sold runs away or is stolen, without any fraud or fault on the part of the seller, we must inquire whether the seller undertook to keep him safely until he was delivered over; if he undertook this, what happens is at his risk; if he did not undertake it, he is not responsible. The same would hold in the case of any other animal or any other thing, but the seller is in any case bound to make over to the purchaser his right to a real or personal actio, for the person who has not delivered the thing is still its owner; and it is the same with regard to the actio of theft, and the actio damni iniuria.
4. A sale may be made conditionally or unconditionally; conditionally, as, for example, "If Stichus suits you within a certain time, he shall be purchased by you as such a price."
5. A sale is void when a person knowingly purchases a sacred or religious place, or a public place, such as a forum or basilica. If, however, deceived by the vendor, he has supposed that what he was buying was profane or private, as he cannot have what he purchased, he may bring an actio ex empto to recover whatever it would have been worth to him not to have been deceived. It is the same if he has purchased a freeman, supposing him to be a slave.
Book IV Obligationes Arising From Delicta.
As we have treated in the preceding book of obligationes arising ex contractu and quasi ex contractu, we have now to treat of obligationes arising ex maleficio. Of the obligationes treated of in the last book, there were, as we have said, four kinds; of those we are now to treat of, there is but one kind, for they all arise from the thing, that is, from the delictum, as, for example, from theft, from robbery, or damage, or injury.
1. Theft is the fraudulent dealing with a thing itself, with its use, or its possession; an act which is prohibited by natural law.
2. The word furtum comes either from furvum, which means "black," because it is committed secretly, and often in the night; or from fraus; or from ferre, that is "taking away," or from the Greek word phor meaning a thief, which again comes from pherin, to carry away.
3. Of theft there are two kinds, theft manifest and theft not manifest; for the thefts termed conceptum and oblatum are rather kinds of actiones attaching to theft than kinds of theft, as will appear below. A manifest theft is one whom the Greek term ep= autophors, being not only, one taken in the fact, but also one taken in the place where the theft is committed; as, for example, before he has passed through the door of the house where he has committed a theft, or in a plantation of olives, or a vineyard where he has been stealing. We must also extend manifest theft to the case of a thief seen or seized by the owner or any one else in a public or private place, while still holding the thing he has stolen, before he has reached the place where he meant to take and deposit it. But if he once reaches his destination, although he is afterwards taken with the thing stolen on him, he is not a manifest thief. What we mean by a not manifest thief may be gathered from what we have said, for a theft which is not a manifest theft is a not manifest theft.
4. There is what is termed conceptum furtum, when a thing stolen has been sought and found in the presence of witnesses in any one's house; for although this person may not be the actual thief, he is liable to a special actio termed concepti. There is what is termed furtum oblatum, if a thing stolen has been placed in your hands and then seized in your house; that is, if the person who placed it in yours hands did so, that it might be found rather in your house than in his. For you, in whose house it had been seized, would have against him who placed it in your hands, although he were not the actual thief, a special actio termed oblati. There is also the actio prohibiti furti against a person who prevents another who wishes to seek in the presence of witnesses for a thing stolen; there is, too, by means of the actio furti non exhibiti, a penalty provided by the edict of the praetor against a person who has not produced a thing stolen which has been searched for and found in his possession. But these actiones, concepti, oblati, furti, prohibitii and furti non exhibiti, have fallen into disuse; for search for things stolen is not now made according to the ancient practice, and therefore these actiones have naturally ceased to be in use, as all who knowingly have received and concealed a thing stolen are liable to the actio furti nec manifesti.
5. The penalty for manifest theft is quadruple the value of the thing stolen, whether the thief be a slave or a freeman; that for theft not manifest is double.
6. It is theft, not only when anyone takes away a thing belonging to another, in order to appropriate it, but generally when anyone deals with the property of another contrary to the wishes of its owner. Thus, if the creditor uses the thing pledged or the depository the thing deposited, or the usuary employs the thing for another purpose than that for which it is given, it is a theft; for example, if anyone borrows plate on the pretense of intending to invite friends to supper, and then carries it away with him to a distance, or if anyone borrows a horse, as for a ride, and takes it much farther than suits such a purpose, or, as we find supposed in the writings of the ancients, takes it into battle.
7. A person, however, who borrows a thing, and applies it to a purpose other than that for which it was lent, only commits theft, if he knows that he is acting against the wishes of the owner, and that the owner, if he were informed, would not permit it; for if he really thinks the owner would permit it, he does not commit a crime; and this is a very proper distinction, for there is no theft without the intention to commit theft.
8. And even if the borrower thinks he is applying the thing borrowed contrary to the wishes of the owner, yet if the owner as a matter of fact approves of the application, there is, it is said, no theft. Whence the following question arises: Titius has urged the slave of Maevius to steal from his master certain things, and to bring them to him; the slave informs his master, who, wishing to seize Titius in the act, permits his slave to take certain things to Titius; is Titius liable to an actio furti, or to one servi corrupti, or to neither? This doubtful question was submitted to us, and we examined the conflicting opinions of the ancient jurists on the subject, some of whom thought Titius was liable to both these actiones, while others thought he was only liable to the actio of theft; and to prevent subtleties, we have decided that in this case both these actiones may be brought. For, although the slave has not been corrupted, and the case does not seem therefore within the rules of the actio servi corrupti, yet the intention to corrupt the slave is indisputable, and he is therefore to be punished exactly as if the slave had been really corrupted, lest his impunity should incite others to act in the same criminal way towards a slave more easy to corrupt.
9. Sometimes there may be a theft of free persons, as if one of our children in our power is carried away.
10. A man may even commit a theft of his own property, as, if a debtor takes from a creditor a thing he has pledged to him.
11. A person may be liable to an actio of theft, although he has not himself committed a theft, as for instance, a person who has lent his aid and planned the crime. Among such is one who makes your money fall from your hand that another may seize upon it; or has placed himself in your way that another may carry off something belonging to you; or has driven your sheep or oxen that another may make away with them, or, to take an instance given by the old advocati, frightens the herd with a piece of scarlet cloth. But if such acts are only the fruits of reckless folly, with no design of assisting in the commission of a theft, the proper actio is one in factum. But if Maevius assists Titius to commit a robbery, both are liable to an actio of theft. A person, again, assists in a theft who places ladders under a window, or breaks a window or a door, that another may commit a theft; or who lends tools to break a door, or ladders to place under a window, knowing the purpose to which they are to be applied. But a person who does not actually assist, but only advises and urges the commission of a theft, is not liable to an actio of theft.
12. Those who are in the power of a parent or master, if they steal anything belonging to the person in whose power they are, commit a theft. The thing stolen, in such a case, is considered to be furtiva, and therefore no right in it can be acquired by usucapion before it has returned into the hands of the owner; but no actio of theft can be brought, because the relation of the parties is such that no actio whatever can arise between them. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the actio of theft as a theft is undoubtedly committed through his means.
13. An actio may be brought by any one who is interested in the safety of the thing, although he is not the owner; and the proprietor, consequently, cannot bring this actio unless he is interested in the thing not perishing.
14. Hence, a creditor may bring this actio if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advantageous to him to rely upon his pledge than to bring an actio against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an actio of theft.
15. So, too, if a fuller receives clothes to clcan, or a tailor receives them to mend for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an actio of theft, for the owner is not considered as interested in their safety, having an actio locati, by which he may recover the thing stolen against the fuller or tailor. But if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an actio of theft, although he is not the proprietor. But an actio of theft is not maintainable by the fuller or tailor unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an actio of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent.
16. What we have said of the fuller and tailor is applied by the ancients to the borrower. For, as the fuller by accepting a sum for his labor makes himself answerable for the safe-keeping of the thing, so does a borrower by accepting the use of the thing he borrows. But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an actio commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other actio. If he elects to sue the thief, the borrower is quite freed; if he elects to sue the borrower, he cannot bring an actio of theft against the thief, but the borrower may, that is, provided that the owner elects to sue the borrower knowing that the thing has been stolen. If he is ignorant or uncertain of this, and therefore sues the borrower, and then subsequently learns the true state of the case, and wishes to have recourse to an actio of theft, he will be permitted to sue the thief without any difficulty being thrown in his way, for it was in ignorance of the real fact that he sued the borrower; unless, indeed, his claim has been satisfied by the borrower, for then the thief is quite free from any actio of theft on the part of the owner, but the borrower takes the place of the owner in the power of bringing this actio. On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him.
17. A depository is not answerable for the safe-keeping of the thing deposited, but is only answerable for wilful wrong; therefore, if the thing is stolen from him, as he is not bound by the contract of deposit to restore it, and has no interest in its safety, he cannot bring an actio of theft, but it is the owner alone who can bring this actio.
18. It should be observed that the question has been asked whether, if a person under the age of puberty, takes away the property of another, he commits a theft. The answer is that it is the intention that makes the theft; such a person is only bound by the obligation springing from the delictum if he is near the age of puberty, and consequently understands that he commits a crime.
19. The actio of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or anyone else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.
1. Theft is the fraudulent dealing with a thing itself, with its use, or its possession; an act which is prohibited by natural law.
2. The word furtum comes either from furvum, which means "black," because it is committed secretly, and often in the night; or from fraus; or from ferre, that is "taking away," or from the Greek word phor meaning a thief, which again comes from pherin, to carry away.
3. Of theft there are two kinds, theft manifest and theft not manifest; for the thefts termed conceptum and oblatum are rather kinds of actiones attaching to theft than kinds of theft, as will appear below. A manifest theft is one whom the Greek term ep= autophors, being not only, one taken in the fact, but also one taken in the place where the theft is committed; as, for example, before he has passed through the door of the house where he has committed a theft, or in a plantation of olives, or a vineyard where he has been stealing. We must also extend manifest theft to the case of a thief seen or seized by the owner or any one else in a public or private place, while still holding the thing he has stolen, before he has reached the place where he meant to take and deposit it. But if he once reaches his destination, although he is afterwards taken with the thing stolen on him, he is not a manifest thief. What we mean by a not manifest thief may be gathered from what we have said, for a theft which is not a manifest theft is a not manifest theft.
4. There is what is termed conceptum furtum, when a thing stolen has been sought and found in the presence of witnesses in any one's house; for although this person may not be the actual thief, he is liable to a special actio termed concepti. There is what is termed furtum oblatum, if a thing stolen has been placed in your hands and then seized in your house; that is, if the person who placed it in yours hands did so, that it might be found rather in your house than in his. For you, in whose house it had been seized, would have against him who placed it in your hands, although he were not the actual thief, a special actio termed oblati. There is also the actio prohibiti furti against a person who prevents another who wishes to seek in the presence of witnesses for a thing stolen; there is, too, by means of the actio furti non exhibiti, a penalty provided by the edict of the praetor against a person who has not produced a thing stolen which has been searched for and found in his possession. But these actiones, concepti, oblati, furti, prohibitii and furti non exhibiti, have fallen into disuse; for search for things stolen is not now made according to the ancient practice, and therefore these actiones have naturally ceased to be in use, as all who knowingly have received and concealed a thing stolen are liable to the actio furti nec manifesti.
5. The penalty for manifest theft is quadruple the value of the thing stolen, whether the thief be a slave or a freeman; that for theft not manifest is double.
6. It is theft, not only when anyone takes away a thing belonging to another, in order to appropriate it, but generally when anyone deals with the property of another contrary to the wishes of its owner. Thus, if the creditor uses the thing pledged or the depository the thing deposited, or the usuary employs the thing for another purpose than that for which it is given, it is a theft; for example, if anyone borrows plate on the pretense of intending to invite friends to supper, and then carries it away with him to a distance, or if anyone borrows a horse, as for a ride, and takes it much farther than suits such a purpose, or, as we find supposed in the writings of the ancients, takes it into battle.
7. A person, however, who borrows a thing, and applies it to a purpose other than that for which it was lent, only commits theft, if he knows that he is acting against the wishes of the owner, and that the owner, if he were informed, would not permit it; for if he really thinks the owner would permit it, he does not commit a crime; and this is a very proper distinction, for there is no theft without the intention to commit theft.
8. And even if the borrower thinks he is applying the thing borrowed contrary to the wishes of the owner, yet if the owner as a matter of fact approves of the application, there is, it is said, no theft. Whence the following question arises: Titius has urged the slave of Maevius to steal from his master certain things, and to bring them to him; the slave informs his master, who, wishing to seize Titius in the act, permits his slave to take certain things to Titius; is Titius liable to an actio furti, or to one servi corrupti, or to neither? This doubtful question was submitted to us, and we examined the conflicting opinions of the ancient jurists on the subject, some of whom thought Titius was liable to both these actiones, while others thought he was only liable to the actio of theft; and to prevent subtleties, we have decided that in this case both these actiones may be brought. For, although the slave has not been corrupted, and the case does not seem therefore within the rules of the actio servi corrupti, yet the intention to corrupt the slave is indisputable, and he is therefore to be punished exactly as if the slave had been really corrupted, lest his impunity should incite others to act in the same criminal way towards a slave more easy to corrupt.
9. Sometimes there may be a theft of free persons, as if one of our children in our power is carried away.
10. A man may even commit a theft of his own property, as, if a debtor takes from a creditor a thing he has pledged to him.
11. A person may be liable to an actio of theft, although he has not himself committed a theft, as for instance, a person who has lent his aid and planned the crime. Among such is one who makes your money fall from your hand that another may seize upon it; or has placed himself in your way that another may carry off something belonging to you; or has driven your sheep or oxen that another may make away with them, or, to take an instance given by the old advocati, frightens the herd with a piece of scarlet cloth. But if such acts are only the fruits of reckless folly, with no design of assisting in the commission of a theft, the proper actio is one in factum. But if Maevius assists Titius to commit a robbery, both are liable to an actio of theft. A person, again, assists in a theft who places ladders under a window, or breaks a window or a door, that another may commit a theft; or who lends tools to break a door, or ladders to place under a window, knowing the purpose to which they are to be applied. But a person who does not actually assist, but only advises and urges the commission of a theft, is not liable to an actio of theft.
12. Those who are in the power of a parent or master, if they steal anything belonging to the person in whose power they are, commit a theft. The thing stolen, in such a case, is considered to be furtiva, and therefore no right in it can be acquired by usucapion before it has returned into the hands of the owner; but no actio of theft can be brought, because the relation of the parties is such that no actio whatever can arise between them. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the actio of theft as a theft is undoubtedly committed through his means.
13. An actio may be brought by any one who is interested in the safety of the thing, although he is not the owner; and the proprietor, consequently, cannot bring this actio unless he is interested in the thing not perishing.
14. Hence, a creditor may bring this actio if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advantageous to him to rely upon his pledge than to bring an actio against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an actio of theft.
15. So, too, if a fuller receives clothes to clcan, or a tailor receives them to mend for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an actio of theft, for the owner is not considered as interested in their safety, having an actio locati, by which he may recover the thing stolen against the fuller or tailor. But if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an actio of theft, although he is not the proprietor. But an actio of theft is not maintainable by the fuller or tailor unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an actio of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent.
16. What we have said of the fuller and tailor is applied by the ancients to the borrower. For, as the fuller by accepting a sum for his labor makes himself answerable for the safe-keeping of the thing, so does a borrower by accepting the use of the thing he borrows. But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an actio commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other actio. If he elects to sue the thief, the borrower is quite freed; if he elects to sue the borrower, he cannot bring an actio of theft against the thief, but the borrower may, that is, provided that the owner elects to sue the borrower knowing that the thing has been stolen. If he is ignorant or uncertain of this, and therefore sues the borrower, and then subsequently learns the true state of the case, and wishes to have recourse to an actio of theft, he will be permitted to sue the thief without any difficulty being thrown in his way, for it was in ignorance of the real fact that he sued the borrower; unless, indeed, his claim has been satisfied by the borrower, for then the thief is quite free from any actio of theft on the part of the owner, but the borrower takes the place of the owner in the power of bringing this actio. On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him.
17. A depository is not answerable for the safe-keeping of the thing deposited, but is only answerable for wilful wrong; therefore, if the thing is stolen from him, as he is not bound by the contract of deposit to restore it, and has no interest in its safety, he cannot bring an actio of theft, but it is the owner alone who can bring this actio.
18. It should be observed that the question has been asked whether, if a person under the age of puberty, takes away the property of another, he commits a theft. The answer is that it is the intention that makes the theft; such a person is only bound by the obligation springing from the delictum if he is near the age of puberty, and consequently understands that he commits a crime.
19. The actio of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or anyone else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.
II. Goods Taken by Force.
A person who takes a thing belonging to another by force is liable to an actio of theft, for who can be said to take the property of another more against his will than he who takes it by force? And he is therefore rightly said to be an improbus fur. The praetor, however, has introduced a peculiar actio in this case, called vi bonorum raptorum; by which, if brought within a year after the robbery, quadruple the value of the thing taken may be recovered; but if brought after the expiration of a year, then the single value only may be brought even against a person who has only taken by force a single thing, and one of the most trifling value. But this quadruple of the value is not altogether a penalty, as in the actio furtum manifestum; for the thing itself is included, so that, strictly, the penalty is only three times the value. And it is the same, whether the robber was or was not taken in the actual commission of the crime. For it would be ridiculous that a person who uses force should be in a better condition than he who secretly commits a theft.
1. As, however, this actio can only be brought against a person who robs with the intention of committing a wilful wrong, if anyone takes by force a thing, thinking himself, by a mistake, to be the owner, and, in ignorance of the law, believing it permitted an owner to take away, even by force, a thing belonging to himself from persons in whose possession it is, he ought to be held discharged of this actio, nor in such a case would he be liable to an actio of theft. But lest robbers, under cover of such an excuse, find means of gratifying their avarice with impunity, the imperial constitutiones have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. If any one acts contrary to these constitutiones, he, if the thing is his, ceases to be owner of it; if it is not, he is not only to restore the thing taken, but also to pay its value. The constitutiones have declared these rules applicable, not only in the case of moveables of a nature to be carried off by force, but also to the forcible entries made upon immovables, in order that every kind of violent robbery may be prevented.
2. In this actio it is not necessary that the thing should have been a part of the goods of the plaintiff; for whether it has been a part of his goods or not, yet if it has been taken from among his goods, the actio may be brought. Consequently, if anything has been let, lent or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufructus of it, or has any other legal interest in its not being taken away by force, this actio may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away from out of his goods, that is, from out of his property. And generally, we may say, that the same causes which would give rise to an actio of theft, if the theft is committed secretly, will give rise to this actio, if it is committed with force.
1. As, however, this actio can only be brought against a person who robs with the intention of committing a wilful wrong, if anyone takes by force a thing, thinking himself, by a mistake, to be the owner, and, in ignorance of the law, believing it permitted an owner to take away, even by force, a thing belonging to himself from persons in whose possession it is, he ought to be held discharged of this actio, nor in such a case would he be liable to an actio of theft. But lest robbers, under cover of such an excuse, find means of gratifying their avarice with impunity, the imperial constitutiones have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. If any one acts contrary to these constitutiones, he, if the thing is his, ceases to be owner of it; if it is not, he is not only to restore the thing taken, but also to pay its value. The constitutiones have declared these rules applicable, not only in the case of moveables of a nature to be carried off by force, but also to the forcible entries made upon immovables, in order that every kind of violent robbery may be prevented.
2. In this actio it is not necessary that the thing should have been a part of the goods of the plaintiff; for whether it has been a part of his goods or not, yet if it has been taken from among his goods, the actio may be brought. Consequently, if anything has been let, lent or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufructus of it, or has any other legal interest in its not being taken away by force, this actio may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away from out of his goods, that is, from out of his property. And generally, we may say, that the same causes which would give rise to an actio of theft, if the theft is committed secretly, will give rise to this actio, if it is committed with force.
III. The Lex Aquilia.
The actio damni iniuriae is established by the lex Aquilia, of which the first head provides that if anyone shall have wrongfully killed a slave, or a four-footed beast, being one of those reckoned among cattle belonging to another, he shall be condemned to pay the owner the greatest value which the thing has possessed at any time within a year previous.
1. As the law does not speak generally of four-footed beasts, but only of those which are reckoned among cattle, we may consider its provision as not applying to dogs or wild animals, but only to animals which may be properly said to feed in herds, as horses, mules, asses, sheep, oxen, goats, and also swine, for they are included in the term "cattle," for they feed in herds. Thus Homer says, as Laelius Marcianus quotes in his Institutes:
You will find him seated by his swine,
and they are feeding by the rock of Corax,
near the spring Arethusa.
2. To kill wrongfully is to kill without any right: consequently, a person who kills a thief is not liable to this actio, that is, if he could not otherwise avoid the danger with which he was threatened.
3. Nor is a person made liable by this law who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong-doing.
4. Consequently, if anyone playing or practicing with a javelin pierces with it your slave as he goes by, there is a distinction made; if the accident befalls a soldier while in the camp, or other places appropriated to military exercises, there is no fault in the soldier, but there would be in anyone else besides a soldier, and the soldier himself would be in fault if he inflicted such an injury in any other place than one appropriated to military exercises.
5. If, again, anyone, in pruning a tree, by letting a bough fall, kills your slave who is passing, and this takes place near a public way, or a way belonging to a neighbor, and he has not cried out to make persons take care, he is in fault; but if he has called out, and the passer-by would not take care, he is not to blame. He is also equally free from blame if he was cutting far from any public way, or in the middle of a field, even though he has not called out, for by such a place no stranger has a right to pass.
6. So, again, a physician who has performed an operation on your slave, and then neglected to attend to his cure, so that the slave dies, is guilty of a fault.
7. Unskillfulness is also a fault, as, if a physician kills your slave by unskillfully performing an operation on him, or by giving him wrong medicines.
8. So, too, if a muleteer, through his want of skill, cannot manage his mules, and runs over your slave, he is guilty of a fault. As, also, he would be if he could not hold them on account of his weakness, provided that a stronger man could have held them in. The same decisions apply to an unskillful or infirm horseman, unable to manage his horse.
9. The words above quoted "the greatest value the thing has possessed at any time within a year previously," mean that if your slave is killed, being at the time of his death lame, maimed, or one-eyed, but having been within a year quite sound and of considerable value, the person who kills him is bound to pay not his actual value, but the greatest value he ever possessed within the year. Hence, this actio may be said to be penal, as a person is bound under it not only for the damage he has done, but for much more; and, therefore, the actio does not pass against his heir, as it would have done if the condemnation had not exceeded the amount of the actual damage.
10. It has been decided not by virtue of the actual wording of the law, but by interpretation, that not only is the value of the thing perishing to be estimated as we have said, but also the loss which in any way we incur by its perishing; as, for instance, if your slave having been instituted heir by some one is killed before he enters at your command on the inheritance, the loss of the inheritance should be taken account of. So, too, if one pair of mules, or a set of four horses, or one slave of a band of comedians, is killed, account is to be taken not only of the value of the thing killed, but also of the diminished value of what remains.
11. The master of a slave who is killed may bring a private actio for the damages given by the lex Aquilia, and also bring a capital actio against the murderer.
12. The second head of the lex Aquilia is not now in use.
13. The third head provides for every kind of damage; and therefore, if a slave, or a four-footed beast, of those reckoned among cattle, is wounded, or a four-footed beast of those not reckoned among cattle, as a dog or wild beast, is wounded or killed, an actio may be brought under the third head. Compensation may also be obtained under it for all wrongful injury to animals or inanimate things, and, in fact, for anything burnt, broken, or fractured, although the word broken ("ruptum") would have sufficed for all these cases; for a thing is ruptum which in any way is spoilt ("corruptum"), so that not only things fractured or burnt, but also things cut, bruised, split, or in any way destroyed or deteriorated may be said to be rupta. It has also been decided that any one who mixes anything with the oil or wine of another, so as to spoil the goodness of the wine or oil, is liable under this head of the lex Aquilia.
14. It is evident that as a person is liable under the first head, if by wilful injury or by his fault he kills a slave or a four-footed beast, so by this head a person is liable for every other damage if there is wrongful injury or fault in what he does. But in this case the offender is bound to pay the greatest value the thing has possessed, not within the year next preceding, but the thirty days next preceding.
15. Even the word plurimi, i. e., of the greatest value, is not expressed in this case. But Sabinus was rightly of opinion that the estimation ought to be made as if this word was in the law, since it must have been that the plebeians, who were the authors of this law on the motion of the tribune Aquilius, thought it sufficient to have used the word in the first head of the law.
16. But the direct actio under this law cannot be brought if anyone has, with his own body, done damage, and consequently utiles actiones are given against the person who does damage in any other way, as, for instance, a utilis actio is given against one who shuts up a slave or a beast, so as to produce death by hunger; who drives a horse so fast as to knock him to pieces, or drives cattle over a precipice, or persuades another man's slave to climb a tree, or go down in a well, and the slave in climbing or descending is killed or maimed. But if any one has flung the slave of another from a bridge or a bank into a river, and the slave is drowned, then, as he has actually flung him down, there can be no difficulty in deciding that he has caused the damage with his own body, and consequently he is directly liable under the lex Aquilia. But if no damage has been done by the body, nor to the body, but damage has been done in some other way, the actio directa and the actio utilis are both inapplicable, and an actio in factum is given against the wrongdoer; for instance, if any one through compassion has loosed the fetters of a slave, to enable him to escape.
1. As the law does not speak generally of four-footed beasts, but only of those which are reckoned among cattle, we may consider its provision as not applying to dogs or wild animals, but only to animals which may be properly said to feed in herds, as horses, mules, asses, sheep, oxen, goats, and also swine, for they are included in the term "cattle," for they feed in herds. Thus Homer says, as Laelius Marcianus quotes in his Institutes:
You will find him seated by his swine,
and they are feeding by the rock of Corax,
near the spring Arethusa.
2. To kill wrongfully is to kill without any right: consequently, a person who kills a thief is not liable to this actio, that is, if he could not otherwise avoid the danger with which he was threatened.
3. Nor is a person made liable by this law who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong-doing.
4. Consequently, if anyone playing or practicing with a javelin pierces with it your slave as he goes by, there is a distinction made; if the accident befalls a soldier while in the camp, or other places appropriated to military exercises, there is no fault in the soldier, but there would be in anyone else besides a soldier, and the soldier himself would be in fault if he inflicted such an injury in any other place than one appropriated to military exercises.
5. If, again, anyone, in pruning a tree, by letting a bough fall, kills your slave who is passing, and this takes place near a public way, or a way belonging to a neighbor, and he has not cried out to make persons take care, he is in fault; but if he has called out, and the passer-by would not take care, he is not to blame. He is also equally free from blame if he was cutting far from any public way, or in the middle of a field, even though he has not called out, for by such a place no stranger has a right to pass.
6. So, again, a physician who has performed an operation on your slave, and then neglected to attend to his cure, so that the slave dies, is guilty of a fault.
7. Unskillfulness is also a fault, as, if a physician kills your slave by unskillfully performing an operation on him, or by giving him wrong medicines.
8. So, too, if a muleteer, through his want of skill, cannot manage his mules, and runs over your slave, he is guilty of a fault. As, also, he would be if he could not hold them on account of his weakness, provided that a stronger man could have held them in. The same decisions apply to an unskillful or infirm horseman, unable to manage his horse.
9. The words above quoted "the greatest value the thing has possessed at any time within a year previously," mean that if your slave is killed, being at the time of his death lame, maimed, or one-eyed, but having been within a year quite sound and of considerable value, the person who kills him is bound to pay not his actual value, but the greatest value he ever possessed within the year. Hence, this actio may be said to be penal, as a person is bound under it not only for the damage he has done, but for much more; and, therefore, the actio does not pass against his heir, as it would have done if the condemnation had not exceeded the amount of the actual damage.
10. It has been decided not by virtue of the actual wording of the law, but by interpretation, that not only is the value of the thing perishing to be estimated as we have said, but also the loss which in any way we incur by its perishing; as, for instance, if your slave having been instituted heir by some one is killed before he enters at your command on the inheritance, the loss of the inheritance should be taken account of. So, too, if one pair of mules, or a set of four horses, or one slave of a band of comedians, is killed, account is to be taken not only of the value of the thing killed, but also of the diminished value of what remains.
11. The master of a slave who is killed may bring a private actio for the damages given by the lex Aquilia, and also bring a capital actio against the murderer.
12. The second head of the lex Aquilia is not now in use.
13. The third head provides for every kind of damage; and therefore, if a slave, or a four-footed beast, of those reckoned among cattle, is wounded, or a four-footed beast of those not reckoned among cattle, as a dog or wild beast, is wounded or killed, an actio may be brought under the third head. Compensation may also be obtained under it for all wrongful injury to animals or inanimate things, and, in fact, for anything burnt, broken, or fractured, although the word broken ("ruptum") would have sufficed for all these cases; for a thing is ruptum which in any way is spoilt ("corruptum"), so that not only things fractured or burnt, but also things cut, bruised, split, or in any way destroyed or deteriorated may be said to be rupta. It has also been decided that any one who mixes anything with the oil or wine of another, so as to spoil the goodness of the wine or oil, is liable under this head of the lex Aquilia.
14. It is evident that as a person is liable under the first head, if by wilful injury or by his fault he kills a slave or a four-footed beast, so by this head a person is liable for every other damage if there is wrongful injury or fault in what he does. But in this case the offender is bound to pay the greatest value the thing has possessed, not within the year next preceding, but the thirty days next preceding.
15. Even the word plurimi, i. e., of the greatest value, is not expressed in this case. But Sabinus was rightly of opinion that the estimation ought to be made as if this word was in the law, since it must have been that the plebeians, who were the authors of this law on the motion of the tribune Aquilius, thought it sufficient to have used the word in the first head of the law.
16. But the direct actio under this law cannot be brought if anyone has, with his own body, done damage, and consequently utiles actiones are given against the person who does damage in any other way, as, for instance, a utilis actio is given against one who shuts up a slave or a beast, so as to produce death by hunger; who drives a horse so fast as to knock him to pieces, or drives cattle over a precipice, or persuades another man's slave to climb a tree, or go down in a well, and the slave in climbing or descending is killed or maimed. But if any one has flung the slave of another from a bridge or a bank into a river, and the slave is drowned, then, as he has actually flung him down, there can be no difficulty in deciding that he has caused the damage with his own body, and consequently he is directly liable under the lex Aquilia. But if no damage has been done by the body, nor to the body, but damage has been done in some other way, the actio directa and the actio utilis are both inapplicable, and an actio in factum is given against the wrongdoer; for instance, if any one through compassion has loosed the fetters of a slave, to enable him to escape.
IV. Injuria.
Injuria, in its general sense, signifies every action contrary to law; in a special sense, it means, sometimes, the same as contumelia ("outrage"), which is derived from contemnere, the Greek ubris; sometimes the same as culpa ("fault"), in Greek adikama as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek adikia; for a person against whom the praetor or judge pronounces an unjust sentence is said to have received an injuria.
1. An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.
2. A man may receive an injuria, not only in his own person, but in that of his children in his power, and even in that of his wife, according to the opinion that has prevailed. If, therefore, you injure a daughter in the power of her father, but married to Titius, the actio for the injury may be brought not only in the name of the daughter herself, but also in that of the father or. husband. But, if a husband has sustained an injuria, the wife cannot bring the actio injuriarum, for the husband is the protector of the wife, not the wife of the husband. The father-in-law may also bring this actio in the name of his daughter-in-law, if her husband is in his power.
3. An injuria cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master, as if a person has flogged severely the slave of another, in which case this actio is given against him. But a master cannot bring an actio against a person who has collected a crowd round his slave, or struck him with his fist.
4. If an injuria has been done to a slave held in common, equity demands that it shall be estimated not according to their respective shares in him, but according to their respective position, for it is the masters who are injured.
5. If Titius has the usufructus, and Maevius the property in a slave, the injuria is considered to be done rather to Maevius than to Titius.
6. If the injury has been done to a free man, who serves you bona fide, you have no actio, but he can bring an actio in his own name, unless he has been injured merely to insult you, for, in that case, you may bring the actio injuriarum. So, too, with regard to a slave of another who serves you bona fide, you may bring this actio whenever the slave is injured for the purpose of insulting you.
7. The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation being exacted proportionate to the great poverty of the times. Afterwards, the praetor permitted the injured parties themselves to estimate the injury, so that the iudex should condemn the defendants to pay the sum estimated, or less, as he may think proper. The penalty appointed by the Twelve Tables has fallen into desuetude, but that introduced by the praetors, and termed honorary, is adopted in the administration of justice. For, according to the rank and character of the person injured, the estimate is greater or less; and a similar gradation is observed, not improperly, even with regard to a slave, one amount being paid in the case of a slave who is a steward, a second in that of a slave holding an office of the intermediate class, and a third in that of one of the lowest rank, or one condemned to wear fetters.
8. The lex Cornelia also speaks of injuriae, and introduced an actio injuriarum, which may be brought when anyone alleges that he has been struck or beaten, or that his house has been broken into. And the term "his house" includes one which belongs to him and in which he lives, or one he hires, or one in which he is received gratuitously or as a guest.
9. An injuria is said to be of a grave character, either from the nature of the act, as if any one is wounded or beaten with clubs by another, or from the nature of the place, as when an injury is done in a theater, a forum, or in the presence of the praetor; sometimes from the quality of the person, as when it is a magistrate that has received the injuria, or a senator has sustained it at the hands of a person of low condition, or a parent or patron at the hands of a child or freedman. For the injuria done to a senator a parent or a patron is estimated differently from an injury done to a person of low condition or to a stranger. Sometimes it is the part of the body injured that gives the character to the injuria as if any one had been struck in the eye. Nor does it make any difference whether such an injuria has been done to a paterfamilias or a filiusfamilius, it being in either case considered of a grave character.
10. Lastly, it must be observed that in every case of injuria he who has received it may bring either a criminal or a civil actio. In the latter, it is a sum estimated, as we have said, that constitutes the penalty; in the former, the iudex, in the exercise of his duty, inflicts on the offender an extraordinary punishment. We must, however, remark that a constitutio of Zeno permits men of the rank of illustris, or any higher rank, to bring or defend the actio injuriarum if brought criminally by a procurator, as may be seen more clearly by reading the constitutio itself.
11. Not only is he liable to the actio injuriarum who has inflicted the injury, as, for instance, the person who has struck the blow; but he also who has maliciously caused or contrived that any one should be struck in the face with the fist.
12. This actio is extinguished by a person dissembling to have received the injury; and therefore, a person who has taken no account of the injury, that is, who immediately on receiving it has shown no resentment at it, cannot afterwards change his mind and resuscitate the injury he has allowed to rest.
1. An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.
2. A man may receive an injuria, not only in his own person, but in that of his children in his power, and even in that of his wife, according to the opinion that has prevailed. If, therefore, you injure a daughter in the power of her father, but married to Titius, the actio for the injury may be brought not only in the name of the daughter herself, but also in that of the father or. husband. But, if a husband has sustained an injuria, the wife cannot bring the actio injuriarum, for the husband is the protector of the wife, not the wife of the husband. The father-in-law may also bring this actio in the name of his daughter-in-law, if her husband is in his power.
3. An injuria cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master, as if a person has flogged severely the slave of another, in which case this actio is given against him. But a master cannot bring an actio against a person who has collected a crowd round his slave, or struck him with his fist.
4. If an injuria has been done to a slave held in common, equity demands that it shall be estimated not according to their respective shares in him, but according to their respective position, for it is the masters who are injured.
5. If Titius has the usufructus, and Maevius the property in a slave, the injuria is considered to be done rather to Maevius than to Titius.
6. If the injury has been done to a free man, who serves you bona fide, you have no actio, but he can bring an actio in his own name, unless he has been injured merely to insult you, for, in that case, you may bring the actio injuriarum. So, too, with regard to a slave of another who serves you bona fide, you may bring this actio whenever the slave is injured for the purpose of insulting you.
7. The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation being exacted proportionate to the great poverty of the times. Afterwards, the praetor permitted the injured parties themselves to estimate the injury, so that the iudex should condemn the defendants to pay the sum estimated, or less, as he may think proper. The penalty appointed by the Twelve Tables has fallen into desuetude, but that introduced by the praetors, and termed honorary, is adopted in the administration of justice. For, according to the rank and character of the person injured, the estimate is greater or less; and a similar gradation is observed, not improperly, even with regard to a slave, one amount being paid in the case of a slave who is a steward, a second in that of a slave holding an office of the intermediate class, and a third in that of one of the lowest rank, or one condemned to wear fetters.
8. The lex Cornelia also speaks of injuriae, and introduced an actio injuriarum, which may be brought when anyone alleges that he has been struck or beaten, or that his house has been broken into. And the term "his house" includes one which belongs to him and in which he lives, or one he hires, or one in which he is received gratuitously or as a guest.
9. An injuria is said to be of a grave character, either from the nature of the act, as if any one is wounded or beaten with clubs by another, or from the nature of the place, as when an injury is done in a theater, a forum, or in the presence of the praetor; sometimes from the quality of the person, as when it is a magistrate that has received the injuria, or a senator has sustained it at the hands of a person of low condition, or a parent or patron at the hands of a child or freedman. For the injuria done to a senator a parent or a patron is estimated differently from an injury done to a person of low condition or to a stranger. Sometimes it is the part of the body injured that gives the character to the injuria as if any one had been struck in the eye. Nor does it make any difference whether such an injuria has been done to a paterfamilias or a filiusfamilius, it being in either case considered of a grave character.
10. Lastly, it must be observed that in every case of injuria he who has received it may bring either a criminal or a civil actio. In the latter, it is a sum estimated, as we have said, that constitutes the penalty; in the former, the iudex, in the exercise of his duty, inflicts on the offender an extraordinary punishment. We must, however, remark that a constitutio of Zeno permits men of the rank of illustris, or any higher rank, to bring or defend the actio injuriarum if brought criminally by a procurator, as may be seen more clearly by reading the constitutio itself.
11. Not only is he liable to the actio injuriarum who has inflicted the injury, as, for instance, the person who has struck the blow; but he also who has maliciously caused or contrived that any one should be struck in the face with the fist.
12. This actio is extinguished by a person dissembling to have received the injury; and therefore, a person who has taken no account of the injury, that is, who immediately on receiving it has shown no resentment at it, cannot afterwards change his mind and resuscitate the injury he has allowed to rest.