Actions with a formula incerta

Finally, there were the claims with a formula incerta. They were all characterized by the clause "quidquid ob earn rem N^m N^m A° A° dare facere oportet, eius iudex N^m N^m A" A° condemna...", the "quidquid ob earn rem" in turn referring to a set of facts related in the

² As far as obligations to deliver fungible things are concerned, cf.

³ Gai. IV, 47.

* Cf. also Medicus, (1969) 86 ZSS 98 sq.

Ulp. D. 13, 6, 3, 1; cf. also Ulp. D. 16, 3, 1, 16. preceding demonstratio. The actio ex stipulatio (incerti) fell into this category ("Quod A^s A^s d^e ¹ ¹ incertum stipulates est... "^[4046])i so did the actio deposit! in ius concepta ("Quod A^s A^s apud N^m N^m mensam argenteam deposuit, qua de re agitur..,"^[4047]) as well as all actions arising from any of the consensual contracts. In these latter instances the intentio was extended by the words "ex fide bona". "Quidquid ob earn rem... dare facere oportet" remained "true", even if the object deposited or sold had been destroyed. "In obligatione" was not merely the duty to give or return a specific (existing) object, but "to give or to do" whatever the debtor/defendant ought to give or do on account of (for instance) the deposit or the sale. This could obviously be, in appropriate cases, the payment of id quod interest (damages). Again, therefore, no perpetuatio obligationis was required in order to arrive at liability for non-performance; and again, the crucial factor for determining condemnation or absolution was the standard of liability for which the debtor was responsible (dolus and, possibly, culpa lata in case of a depositum,^[4048] custodia when the object of a sale had been destroyed "emptione perfecta" but before delivery);^[4049] a specific categorization of the reasons for non-performance was not required. The debtor was thus liable whenever he had not performed at all or had not performed properly, provided only that such failure was attributable to him according to the rules of the specific contract.

Particularly interesting, in the present context, are the bonae fidei iudicia, where the judge was asked to establish "quidquid... N^m N^m A° A° dare facere oportet ex fide bona": with regard both to the estimation of the object of performance and to the establishment of the ambit of the debtor's liability the judge enjoyed a far-reaching discretion. The debtor had to adjust his behaviour in accordance with the precepts of good faith, and was thus subject to a whole range of duties of care. Infringement of these duties led to a claim for damages. Thus, a mandatarius was liable who had reported falsely that a person was solvent to whom the mandator was about to make a loan.^[4050] The actio, pro socio was available if one of the partners had fraudulently or negligently failed to make a good bargain.^[4051] A shoemaker was liable under the actio locati, if he had struck the neck of his apprentice with a shoe last so forcefully that the poor boy's eye popped out.^[4052] Many more cases could be quoted.^{[4053] [4054] Under certain circumstances, the plaintiff was even able to recover consequential damages; the leaky vats and toxic plants of Pomp. D. 19, 1, 6, 4 and Ulp. D. 19, 2, 19, I44 immediately spring to mind in this regard.[4055]}