DE REBUS CREDITIS SI CERTUM PETETUR ET DE CONDICTIONE.

D. 12. i.

1. Ulpianus libro uicensimo sexto ad edictum. E re est, priusquam ad uerborum interpretationem perueniamus, pauca de significatione ipsius tituli referre, (i.) Quoniam igitur multa ad contractus uarios pertinentia iura sub hoc titulo praetor inseruit, ideo rerum creditarum titulum praemisit: omnes enim con­tractus, quos alienam fidem secuti instituimus, conplectitur: nam, ut libro primo quaestionum Celsus ait, credendi generalis appellatio est: ideo sub hoc titulo praetor et de commodato et

1.

¹ Dependence on another’s good faith is characteristic of all con­tracts; but the phrase “alienam fidem sequi" is specially applied to those contracts wherein we part with pro­perty to another in consideration of his engagement, voluntary or im­posed by law, to give or do some­thing, or to abstain from something in return. See Savigny, Fiim. Rccht. § 219.

W.

² Papinian does not mean that the Praetor included the topics of commodatum and pigiius under the title “De Rebus Creditis,” merely because they involve a certain amount of dependence on another’s good faith, in the fact that we entrust him with the possession of our pro­perty.

I

2. Paulus libro uicensimo octauo ad edictum. Mutuum damus recepturi non eandem speciem quam dedimus (alioquin commodatum erit aut depositum), sed idem genus: nam si aliud genus, ueluti ut pro tritico uinum recipiamus, non erit mutuum, (i.) Mutui datio consistit in his rebus, quae pondere numero mensura consistunt, quoniam eorum datione possumus in creditum ire, quia in genere suo functionem recipiunt per solutionem quam specie : nam in ceteris rebus ideo in creditum under this heading. For whenever we consent to anything in dependence on another’s good faith and expecting hereafter to receive something under the contract, we are said “to trust” {credere}. The Praetor also used the word res as being a com­prehensive one.

2. Paulus. What we give is a mutuum, when we do not expect to receive back the identical thing which we gave, (if we do, it will be a commodatum or a depositum^) but the same kind : for if we are to receive back another kind, as wine in return for wheat, it will not be a mutuum'. i. The giving of a mutuum is possible in the case of those things which can be weighed, counted or measured; since we can create ourselves creditors² by the giving of such, inasmuch as they admit of discharge by payment in their kind rather than in identity; for the reason why we cannot become creditors as to different ire non possumus, quia aliud pro alio inuito creditori solui non potest. (2.) Appellata est autem mutui datio ab eo, quod de meo tuum fit: et ideo, si non fiat tuum, non nascitur obligatio. (3.) Creditum ergo a mutuo differt qua genus a specie: nam creditum consistit extra eas res, quae pondere numero mensura continentur sic, ut, si eandem rem recepturi sumus, creditum est. item mutuum non potest esse, nisi proficiscatur pecunia, creditum autem interdum etiam si nihil proficiscatur, ueluti si post nuptias dos promittatur. (4.) In mutui datione oportet dominum esse dantem, nec obest, quod filius familias et seruus dantes peculiares nummos obligant: id enim tale est, quale si uoluntate mea tu des pecuniam : nam mihi actio adquiritur, licet mei nummi non fuerint.

the special character of the trust implied in creditum, viz. that it involves a parting with all proprie­tary rights. If a man does not deny our ownership of the deposit or pledge left in his hands, we can only proceed against him by a bonce fidei action, actio commodati or actio pigneraticia. But if, after we have entrusted him with possession, he wrongfully assumes property, by consuming or alienating the article, he destroys our vindicatio; and to replace it we have a condictio, which we may, if we please, use instead of the bonce fidei action. The commo­datum or pignus has in fact by such

supervening event been converted into a creditum, and the usual remedy for a breach of creditum is applic­able. See Introduction, under head­ing (C), and the notes thereon.

¹ This will be permutatio, or do ut des, one of the so-called innominate contracts.

² Creditum here has a restricted signification. In other passages it denotes an expectation of a return, but here an expectation of a return in genere. This being an arbitrary⁷ sense attached to the word, the rea­soning in the concluding part of the paragraph is merely arguing in a circle.

matters is that one thing cannot be paid for another without the creditor’s consent. 2. Mutuum derives its name from the circumstance that a thing becomes yours from being mine; and therefore if it does not become yours, the obligation does not arise. 3. Hence creditum differs from mutiunn as a class from a species; for there is creditum in matters which do not admit of weighing, counting or measuring, so that it is a creditum even when we are to receive back the same article. Again, there can be no mutuum unless value is parted with, but there is sometimes creditum even though nothing be parted with, as, for instance, when a portion is promised subse­quently to marriage \ 4. When a mutuum is given, the donor must be owner; and it is not contrary to this statement that a filiusfamilias and a slave bind (the receiver) by giving money which is part of their peculium: since this is a case similar to your giving money at my request, for the right of action accrues to me, although the money was not mine².

¹ Creditum is here used in a sense more sweeping than any previously employed, viz. an expectation which is not founded at all upon consider­ation given by ourselves, but ismerely based on another’s voluntary promise.

² The agent is regarded as making it mine when he lends it on my account.

³ We can therefore have a con- diction ; but the obligation is not ex mutuo.

3. Pomponius libro uicensimo septimo ad Sabinum. Cum quid mutuum dederimus, etsi non cauimus, ut aeque bonum nobis redderetur, non licet debitori deteriorem rem, quae ex eodem genere sit, reddere, ueluti uinum nouum pro uetere : nam in contrahendo quod agitur pro cauto habendum est, id autem agi intellegitur, ut eiusdem generis et eadem bonitate soluatur, qua datum sit.

4. Ulpianus libro trigensimo quarto ad Sabinum. Si quis nec causam nec propositum foenerandi habuerit et tu empturus praedia desideraueris mutuam pecuniam nec uolueris creditae nomine antequam emisses suscipere, atque ita creditor, quia necessitatem forte proficiscendi habebat, deposuerit apud te hanc eandem pecuniam, ut, si emisses, crediti nomine ob­ligatus esses, hoc depositum periculo est eius qui suscepit, nam et qui rem uendendam acceperit, ut pretio uteretur,

3. Pomponius. When we have given anything as a mutuum, even though we have not specified that an article equally good is to be returned to us, the debtor may not return an inferior article of the same class, as new wine for old; for in contract­ing the intention¹ is supposed to be expressed, and the inten­tion is understood to be that return shall be made of the same kind and of equal goodness with that given.

4. Ulpian. If a person had neither inducement^{[15] [16] nor intention to put out money at interest, and you, intending to buy lands, asked him for a loan, but were not willing to take it up as money lent until you had made your purchase, and so the creditor, being, we will suppose, under a necessity to go away, deposited the said money with you, on the understanding that you would be bound for it as a loan, if you bought the lands ; this deposit is at the risk of the receiver[17].}

through his own fault that he has not done so. But before the purchase it is also at his risk, for the deposit isfor his benefit. There is, however, a dispute whether he is liable for casus as well as culpa; and probably he is not, for the money is still the lender’s.

periculo suo rem habebit, (i.) Res pignori data pecunia soluta condici potest, et fructus ex iniusta causa percepti condicendi sunt: nam et si colonus post lustrum completum fructus per­ceperit, condici eos constat ita demum, si non ex uoluntate domini percepti sunt: nam si ex uoluntate, procul dubio cessat condictio. (2.) Ea, quae ui fluminum importata sunt, condici possunt.

5. Pomponius libro uicensimo secundo ad Sabinum. Quod te mihi dare oporteat si id postea perierit, quam per te factum erit quominus id mihi dares, tuum fore id detrimentum constat, sed cum quaeratur, an per te factum sit, animaduerti debebit, non solum in potestate tua fuerit id nec ne, aut dolo malo feceris quominus esset uel fuerit nec ne, sed etiam si price of it. i. A conduction¹ can be brought to recover a pledge, so soon as the debt has been discharged. Fruits also improperly taken can be sued for by condiction^{[18] [19]; for it is the rule that if a tenant has taken fruits after the five years[20] are at an end, a condiction can be brought for them ; unless they were taken with the landlord’s consent; if, however, they were taken with his consent, the condiction obviously fails. 2. Ar­ticles carried on to another man’s land by the violence of a stream can be the subject of a condiction[21].}

5. Pomponius. If a thing which you ought to give to me perishes after a delay in its delivery has been occasioned by you, it is ruled that the loss will fall on you. But when the question is whether the delay was attributable to you, we shall · have to consider not only whether it was under your control or,not, or whether you maliciously caused it to be or to have been out of your control or did not, but, besides, whether there

separate title, and the fruits thence­forth were not a mere accessory of the land.

³ The usual duration of a farming lease.

⁴ As a rule we cannot bring a condictio for our own property; but there is an exception in the case of thieves, see Introduction (H): and the persons mentioned in §§ 1, 2 are practically though not tech­nically thieves. “Non cadit furtum in rem soli.”

aliqua iusta causa sit, propter quam intellegere deberes te dare oportere.

6. Paulus libro uicensimo octauo ad edictum. Certum est, cuius species uel quantitas, quae in obligatione uersatur, aut nomine suo aut ea demonstratione quae nominis uice fungitur qualis quantaque sit ostenditur, nam et Pedius libro primo de stipulationibus nihil referre ait, proprio nomine res appel­letur, an digito ostendatur an uocabulis quibusdam demon­stretur : quatenus mutua uice fungantur, quae tantundem praestent.

7. Ulpianus libro uicensimo sexto ad edictum. Omnia, quae inseri stipulationibus possunt, eadem possunt etiam nu­merationi pecuniae, et ideo et condiciones.

8. Pomponius libro sexto ex Plautio. Proinde mutui datio interdum pendet, ut ex post facto confirmetur: ueluti si dem tibi mutuos nummos, ut, si condicio aliqua extiterit, tui fiant sisque mihi obligatus : item si legatam pecuniam heres crediderit, deinde legatarius eam noluit ad se pertinere, quia heredis ex die aditae hereditatis uidentur nummi fuisse, ut was any reasonable cause for your being obliged to keep in mind that it was your duty to give it.

6. Paulus. A thing is certain, when its individuality or its quantity, which is the matter of an obligation, is shewn to be of a certain kind and a certain amount by its name or by a description equivalent to a name. For Pedius, in his first book On Stipulations, says that it is immaterial whether the thing is called by its proper name, or pointed out with the finger, or described by certain words : since processes which effect the same result are equivalent one to the other.

7. Ulpian. All provisions which can be introduced into stipulations, can also be introduced into the delivery of money, and therefore so also can conditions.

8. Pomponius. Hence, the giving of a loan is sometimes dependent for its confirmation on some subsequent event; as, for instance, supposing I lend you money on terms that if some condition comes to pass it shall be yours, and you shall be under obligation to me ; also when an heir lends money which is the matter of a legacy, and afterwards the legatee declines to accept the legacy; for the money is then considered to have belonged to the heir from the day he entered upon the

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credita pecunia peti possit, nam lulianus ait et traditiones ab herede factas ad id tempus redigi, quo hereditas adita fuerit, cum repudiatum sit legatum aut adpositum.

9. Ulpianus libro uicensimo sexto ad edictum. Certi condictio competit ex omni causa, ex omni obligatione, ex qua certum petitur, siue ex certo contractu petatur siue ex incerto : licet enim nobis ex omni contractu certum condicere, dum­modo praesens sit obligatio: ceterum si in diem sit uel sub condicione obligatio, ante diem uel condicionem non potero agere, (i.) Competit haec actio etiam ex legati causa et ex lege Aquilia, sed et ex causa furtiua per hanc actionem condicitur, inheritance, so that there can be a suit for money lent¹. Fo: Julian says that when a legacy or a share of an inheritance' is refused, transfers made by the heir^{[22] [23] [24] relate back to the time when entry on the inheritance took place.}

9. Ulpian. A condictio certi can be employed on every ground and on every obligation where there is a claim for something certain, whether the claim be based on a certain or an uncertain contract^[25]: for we may bring a condictio certi upon any contract, provided only there is a present obligation : but if the obligation be future or conditional, I shall not be able to sue before the time or the condition, r. This action also avails in case of legacy and under the Lex Aquilia^[26]. And a condiction can also be brought in this form on the ground

dictio incerti or actio ex stipulate would never be wanted; but it refers to the nature of the contract, i.e. nominate or innominate. This is the view of Pothier and Savigny. See Pothier ad loc.; Sav. Rom. Recht, App. xiv. § 23.

⁵ The condictio certi was not ex­pressly granted by the Lex Aquilia; but was on the quasi-contract arising from the fact of the defendant realiz­ing a benefit; still, as the benefit arose from the damage he committed, and that damage, as a delict, fell under the Lex Aquilia, it may be said, though somewhat inaccurately, that the condiction is ex lege Aquilia, “in connection with that lex.”

sed et si ex senatus consulto agetur, competit haec actio, ueluti si is cui fiduciaria hereditas restituta est agere uolet. (2.) Siue autem suo nomine quis obligatus sit siue alieno, per hanc ac­tionem recte conuenitur. (3.) Quoniam igitur ex omnibus con­tractibus haec certi condictio competit, siue re fuerit contractus factus siue uerbis siue coniunctim, referendae sunt nobis quae­dam species, quae dignum habent tractatum, an haec actio ad petitionem eorum sufficiat. (4.) Numeraui tibi decem et haec alii stipulatus sum : nulla est stipulatio: an condicere decem per hanc actionem possim, quasi duobus contractibus inter- uenientibus, uno qui re factus est, id est numeratione, alio qui uerbis, id est inutiliter, quoniam alii stipulari non potui ? et puto posse. (5.) Idem erit, si a pupillo fuero sine tutoris auctori-

of theft. This action also avails when proceedings are taken under a senatusconsultum, when, for instance, a person to whom a trust-inheritance has been transferred is wishful to sue¹.

2. Further, whether a man be bound on his own behalf or on that of another, he is properly sued by this form of action.

3. Hence, as this condictio certi can be brought upon any contract, whether real or verbal or of a mixt^{[27] [28] character, we must take notice of some transactions where it is proper to consider whether this form of action is adequate for their en­forcement. 4. I have (for instance) paid to you ten aurei, and stipulated for their repayment to another person ; the stipula­tion is void[29]: can I then bring a condiction in this form[30] for ten aurei, on the ground that there were two contracts, one real, i.e. effected by the payment, the other verbal, and there­fore useless, because I cannot stipulate for the benefit of an­other? I think I can do so 5. 5. The rule will be the same,}

to deliver something, superadds a stipulation for repayment. Sa- vigny thinks that Ulpian must have added ex Uteris, as his catalogue without this would be incomplete. Rom. Recht, App. XIV. § 24.

³ Gai. Comm. 3. 103: Just. Inst. 3· 19· 4·

⁴ Sc. in the form of a condictto certi.

⁵ If a novation had been effected, there would only have been an action on the stipulation; and there would

tate stipulatus, cui tutore auctore credidi: nam et tunc manebit mihi condictio ex numeratione. (6.) Item quaeri potest et si, quod tibi numeraui, sub impossibili condicione stipuler: cum enim nulla sit stipulatio, manebit condictio. (7.) Sedet si ei numera- uero, cui postea bonis interdictum est, mox ab eo stipuler, puto pupillo eum comparandum, quoniam et stipulando sibi adquirit. (8.) Si nummos meos tuo nomine dedero uelut tuos absente te et ignorante, Aristo scribit adquiri tibi condictionem: lulianus quoque de hoc interrogatus libro decimo scribit ueram esse Aristonis sententiam, nec dubitari, quin, si meam pecuniam tuo nomine uoluntate tua dedero, tibi adquiritur obligatio, cum cottidie credituri pecuniam mutuam ab alio

if I have stipulated with a pupil without the authorization of his tutor, having previously lent to him with the authorization of his tutor; for then too I shall retain the condiction founded on the payment. 6. The question may also be raised, if I stipulate under some impossible condition for repayment of money which I have paid to you; for although the stipulation is void ’, the condiction will stand good. 7. And again, if I pay money to a person who subsequently is forbidden to manage his own business, and afterwards stipulate with him, I think he may be considered to be on the same footing with a ward, for the latter also acquires for himself by stipulation². 8. If I pay on your account money of my own, as if it were yours, without your presence and knowledge, Aristo writes that the condiction is acquired by you³; and Julian also, having been consulted about this, writes in his tenth book that the opinion of Aristo is a correct one ; and that there is no doubt as to the right being acquired by you, when I give my own money on your account with your consent; since every day when we want to lend money we ask some other person to poscamus, ut nostro nomine creditor numeral futuro debitori nostro. (9.) Deposui apud te decem, postea permissi tibi uti: Nerua Proculus etiam antequam moneantur, condicere quasi mutua tibi haec posse aiunt, et est uerum, ut et Marcello uidetur: animo enim coepit possidere, ergo transit periculum ad eum qui mutuam rogauit, et poterit ei condici.

certainly have been a novation, if the stipulation had been binding either morally or legally; D. 46. 2. 1. 1. But the stipulation in the text is altogether void, hence there is no novation, and the first obliga­tion remains effective.

¹ See Inst. 3. 19. 11.

² The ward can stipulate, although he cannot make a binding promise:

and so too the prodigal is only in­terdicted from diminishing, not from increasing his estate. The real obli­gation stands good, as in the cases previously mentioned, although a void stipulation is superadded to the valid real contract.

³ Provided, of course, that you ratify my proceeding when it is brought to your knowledge.

10. Idem libro secundo ad edictum. Quod si ab initio, cum deponerem, uti tibi si uoles permisero, creditam non esse antequam mota sit, quoniam debitu iri non est certum.

11. Idem libro uicensimo sexto ad edictum. Rogasti me, ut tibi pecuniam crederem: ego cum non haberem, lancem tibi dedi uel massam auri, ut eam uenderes et nummis utereris, si uendideris, puto mutuam pecuniam factam, quod si lancem uel massam sine tua culpa perdideris prius quam uenderes, utrum mihi an tibi perierit, quaestionis est. mihi uidetur Neruae distinctio uerissima existimantis multum interesse, lend, as our creditor, to the person who is about to become our debtor. 9. I deposited with you ten aurei, and afterwards gave you permission to use them ^[XXXI]; Nerva and Proculus say that even before they are removed by you, I can bring a con- diction for them as being a loan ; and this is true, as Marcellus also thinks ; for the possession is commenced by mere intent: hence the risk devolves on him who requested the loan, and a condiction can be brought against him.

10. Ulpian. But if, when I first deposited the money with you, I gave you permission to use it if you pleased, it is not a loan till it has been removed, for till then it is not certain that it will become a debt².

11. You requested me to lend you money: having none, I gave you a dish or an ingot of gold, that you might sell it and use the money. If you sold it, I think a loan was created. But if, before a sale was effected, you lost the dish or ingot without fault on your part, it is questionable whether the loss falls on me or on you. It seems to me that Nerva’s discrimi-

there needs only a change of animus, and this is shew n by the fact of the new agreement.

² In this case the moving is the only possible test of the change of animus.

uenalem habui hanc lancem uel massam nec ne, ut, si uenalem habui, mihi perierit, quemadmodum si alii dedissem uenden- dam : quod si non fui proposito hoc ut uenderem, sed haec causa fuit uendendi, ut tu utereris, tibi eam perisse, et maxime si sine usuris credidi, (i.) Si tibi dedero decem sic, ut nouem debeas, Proculus ait, et recte, non amplius te ipso iure debere quam nouem. sed si dedero, ut undecim debeas, putat Pro­culus amplius quam decem condici non posse. (2.) Si fugitiuus seruus nummos tibi crediderit, an condicere tibi dominus nation is a very correct one, for he holds that it is a most important point whether I was offering the dish or ingot for sale or not; for if I was offering it for sale, the loss is mine, just as it would have been, if I had entrusted it to some other person to sell; but if I had no intention of being a vendor, and the object of the sale was that you might use the proceeds, then the loss falls on you, especially if I lent it to you without charging interest^[XXXII]. 1. If I have given you ten aurei on con­dition that you be my debtor for nine, Proculus says, and rightly, that in strictness of law you only owe me nine. But if I have given them on condition that you be my debtor for eleven, Proculus holds that a condiction will not hold for more than ten². 2. If a runaway slave has lent you money,

ego te venditorem rogavi, meum esse periculum, si tu me, tuum, si neuter nostrum, sed dumtaxat consensimus, teneri te hactenus ut dolum et culpam mihi praestes.” See also D. 19. 5. 19. Africanus in D. 17. 1. 34 is generally supposed to decide to the contrary the self-same point which Ulpian here discusses; but Africanus’ case seems to involve the important difference that his agent was to sell the article, and if he succeeded was promised a loan of the money; he ought therefore to have delivered the money to his principal, and then had it redelivered to him; here, however, by agreement of the parties the actual sale of the article is to stand also for a delivery brevi manu of the pro­ceeds of its sale.

² The reason is given in D. 2. 14. i7./r. “re enim non potest obligatio contrahi, nisi quatenus datum sit.”

possit, quaeritur, et quidem si seruus meus, cui concessa est peculii administratio, crediderit tibi, erit mutua: fugitiuus autem uel alius seruus contra uoluntatem domini credendo non facit accipientis, quid ergo? uindicari nummi possunt, si extant, aut, si dolo malo desinant possideri, ad exhibendum agi: quod si sine dolo malo consumpsisti, condicere tibi potero.

12. Pomponius libro sexto ex Plautio. Si a furioso, cum eum compotem mentis esse putares, pecuniam quasi mutuam acceperis eaque in rem tuam uersa fuerit, condictionem fuiroso adquiri lulianus ait: nam ex quibus causis ignorantibus nobis actiones adquiruntur, ex isdem etiam furioso adquiri. item si the question is asked, can the master bring a condiction for it? If indeed my slave who lent you the money was one who had been permitted to manage his own peculium, there will be a loan¹: but a runaway or other² slave does not make the money the receiver’s property³, when he lends it against the will of his owner. What then is our conclusion ? The money, if still able to be identified, can be recovered by vindication; or if it has been fraudulently got rid of, there can be an actio ad exhiben­dum: and if you have spent it without fraud, I can bring a con- diction against you⁴.

12. Pomponius. If you have taken money, as if on loan⁴, from a madman, thinking him to be sound of mind, and it has been expended to your profit, Julian says that a condiction is competent to the madman; for in whatever cases rights of action are acquired for us without our knowledge, in the same cases are they also acquired for a madman. So also, if any is qui seruo crediderat furere coeperit, deinde seruus in rem domini id uerterit, condici furiosi nomine posse, et si alienam pecuniam credendi causa quis dederit, deinde furere coeperit et consumpta sit ea pecunia, condictionem furioso adquiri.

A pactum adjectum is upheld bn the fiction that it is part of the original contract: hence a mere pact, to the detriment of the debtor, attached to a real contract, cannot increase his liability. It is the rule, however, that a pact to the detriment of the creditor may be pleaded as an ex­ception, and so the creditor who has agreed to take nine will fail in his suit for ten. See D. 2. 14. 4. 3, also D. 12. 1.40 below.

¹ Therefore on the loan I can bring a coudictio certi.

- Alius—cd\ non concessa est

peculii administratio.

³ “Libera peculii administratio non permanet in fugitivo.” D. 15. 1. 48.

⁴ But only so far as the consump­tion has caused benefit to the inno­cent receiver; as we see from the next excerpt.

⁵ As a madman cannot have in­tention, there is no true mutuum, but only a quasi-mutuum, till con­sumption cures the want of concur­rence in intent on the part of lender and borrower.

13. Ulpianus libro uicensimo sexto ad edictum. Nam et si fur nummos tibi credendi animo dedit, accipientis non facit, sed consumptis eis nascitur condictio. (1.) Unde Papinianus libro octauo quaestionum git: si alienos nummos tibi mutuos dedi, non ante mihi teneris, quam eos consumpseris, quod si per partes eos consumpseris, an per partes tibi condicam, quaerit: et ait condicturum, si admonitus alienos nummos fuisse ideo per partem condico, quia nondum totos consumptos compereram. (2.) Si seruus communis decem crediderit, puto, one became mad after having lent money to a slave, and then the slave expended it to his master’s profit, there could be a condiction in the name of the madman¹. So again, if any one has given the money of another on loan, and then become mad, and the money has been spent, there will be a condic­tion for the madman^{[33] [34].}

13. Ulpian. For a thief too, if he has given you money with the intent of lending, does not make it the property of the receiver, and yet when it is consumed a condiction arises^[35]. 1. Hence in the eighth book of his Quaestiones Papinian says, if I have lent to you the money of another man, you are under no obligation to me until you have spent it^[36]. But the question, arises, if you have spent part of it, can I bring a condiction against you for that part ? and he replies that I can bring a condiction (for part), if my reason for bringing it for part, when I learned that the money was another person’s, was that I knew the whole was not yet spent^[37]. 2. If a slave owned in common

this dictum is as inconclusive as the one preceding it.

³ Sc. a condiction can be brought by the thief.

⁴ Till you spend it, I have no action, but the owner has a vind - catio. After the consumption, I am responsible to the owner in a con­dictio, and therefore you are re­sponsible to me in one.

⁵ I sue, of course, for the part

siue administratio seruo concessa est siue non, et consumantur nummi, quinum competere actionem: nam et si communes tibi nummos credidero centum, posse me quinquaginta con­dicere libro octauo quaestionum Papinianus scribit, etiamsi singula corpora communia fuerint.

14. Idem libro uicensimo nono ad edictum. Si filius familias contra senatus consultum mutuatus pecuniam soluerit, patri nummos uindicanti nulla exceptio obicietur: sed si fuerint consumpti a creditore nummi, Marcellus ait cessare condic­tionem, quoniam totiens condictio datur, quotiens ex ea causa numerati sunt, ex qua actio esse potuisset, si dominium ad has lent ten aurei, I think that, whether the slave had or had not permission to deal with his peculium, if the money has been spent, (each owner) has an action for five : for in the eighth book of his Quaestiones Papinian says that also in the case of my lending you a hundred coins of common property, I may bring my condiction for fifty, although each individual coin was common property¹.

14. Ulpian. If a filiusfamilias has borrowed money in contravention of the senatusconsultum², and repaid it, no ex­ception will stand good against the father, if he brings a vindi­catio: but if the money has been spent by the creditor, Marcellus says a condiction will not avail; for the condiction is only allowed in cases where money has been paid for a cause which would have given rise to an action³, supposing the ownership accipientem transisset: in proposito autem non esset, denique per errorem soluti contra senatus consultum crediti magis est cessare repetitionem.

consumed to your profit: if the whole had been spent to your profit, I should have brought the condic­tion for the whole. The part re­maining unconsumed is no mutuum, but recoverable by vindication brought by the true owner.

¹ Though originally I am part owner of every coin, yet, as money is a res fungibilis, I have only a right to claim half in quantity, instead of half of each coin.

² Sc. S. C. Macedonianum, see D. 14. 6.

³ Actio \iexe=condictto. There is then a vindication of the money, if yet unconsumed; but no condiction when it has been consumed. The

meaning of the passage is that when money is consumed in good faith by a person who has received it in a transaction generally lawful, but prohibited in a particular instance, there is a condiction (as opposed to a vindication) in consequence of con­sumption only when, but for the positive rule of law, there would have been a condiction in cansequence of the delivery. In the present instance the filiusfamilias refays borrowed money: he therefore does what the law usually approves; and if he had been a paterfamilias he would have had no condictio indebiti to recover his money. Hence, consumption does not give his fath'er the right to

15. Idem libro trigensimo primo ad edictum. Singularia quaedam recepta sunt circa pecuniam creditam, nam si tibi debitorem meum iussero dare pecuniam, obligaris mihi, quam- uis meos nummos non acciperis, quod igitur in duabus personis recipitur, hoc et in eadem persona recipiendum est, ut, cum ex causa mandati pecuniam mihi debeas et conuenerit, ut crediti nomine eam retineas, uideatur mihi data pecunia et a me ad te profecta.

had passed to the receiver; and in the present case it would not be so. In fact, it is more reasonable that there should be no real action for borrowed money repaid by mistake in contra­vention of the senatusconsultum ’.

15. Ulpian. Some peculiar rules are allowed with regard to money lent. For if I have directed my debtor to give you money, you are liable to me, though you have not received money of mine. This rule, therefore, established for the case of two persons, must be applied if the person be the same, so that when you owe me money on mandate, and we have agreed that you are to retain it as a loan, the money is regarded as having been delivered to me, and retransferred by me to you².

a condiction, although his father can vindicate the unconsumed money. The creditor, of course, is supposed to be in good faith, that is, under the impression that the debt has been repaid with the father’s consent, or repaid with money extra patrimo- nitimpatris. This consideration har­monizes the present passage with one at first sight contradictory to it, viz. D. 14. 6. 9. 1.

¹ The meaning of this remark appears to be, that on equitable prin­ciples there ought to be no vindicatio of money received through error in discharge of a debt morally bind­ing: the law, however, disregards this principle when the actual coins repaid can be traced, though it follows equity when they have been

consumed in good faith. There is no want of equity in refusing a condictio for money consumed under these circumstances of good faith, says Ulpian; the want of equity is rather in the other rule, which allows a vindicatio if the money is still unconsumed.

² In D. 41. 2. 34 we have an excerpt from Africanus, which ap­pears at first sight to state a doc­trine the very reverse of what is here laid down by Ulpian. Vinnius en­deavours to explain the discrepancy by saying that Ulpian is speaking of an agreement between the manda- tarius and mandator, whereas in Africanus’ case there is only proffer on the part of the mandatarius and no acceptance on the part of the

16. Paulus libro trigensimo secundo ad edictum. Si socius propriam pecuniam mutuam dedit, omnimodo creditam pecuniam facit, licet ceteri dissenserint: quod si communem numerauit, non alias creditam efficit, nisi ceteri quoque con­sentiant, quia suae partis tantum alienationem habuit.

17. Ulpianus libro primo disputationum. Cum filius familias uiaticum suum mutuum dederit, cum studiorum causa Romae ageret, responsum est a Scaeuola extraordinario iudicio esse illi subueniendum.

18. Idem libro septimo disputationum. Si ego pecuniam tibi quasi donaturus dedero, tu quasi mutuam accipias, lulianus scribit donationem non esse : sed an mutua sit, uidendum. et puto nec mutuam esse, magisque nummos accipientis non fieri,

16. Paulus. If a partner has lent his own money, he con­verts it in any case into money lent, even though the other partners disapprove. But if he has paid over money owned in common, he does not convert it into money lent, unless the others also assent, because he has only power to alienate his own share.

17. Ulpian. When a filiusfamilias, staying at Rome for purposes of study, has lent his travelling money, Scaevola held that he must be relieved by means of extraordinary pro­cedure¹.

18. Ulpian. If I have delivered to you money with the intent of conferring a gift, and you receive it as a loan, Julian says that there is no gift. Let us then consider whether there is a loan. I think that there is not, and that the money does cum alia opinione acceperit, quare si eos consumpserit, licet condictione teneatur, tamen doli exceptione uti poterit, quia secundum uoluntatem dantis nummi sunt consumpti. (1.) Si ego quasi deponens tibi dedero, tu quasi mutuam accipias, nec depositum nec mutuum est: idem est et si tu quasi mutuam pecuniam dederis, ego quasi commodatam ostendendi gratia accepi: sed in utroque casu consumptis nummis condictioni sine doli exceptione locus erit.

mandator. But this explanation is unsatisfactory; for Africanus implies further on that there was a nuda pactio, or, in other words, that the proffer to hold on loan was assented to. A better solution of the diffi­culty is that of Voet, who says that in the case discussed by Africanus the communication between the mandator and mandatarius was by letter, and that Ulpian’s hypothesis implies an agreement inter prae­sentes. The question at issue be­tween the two Jurists is not whether there is a binding agreement or not,

but whether the contract, if there be one at all, is a mutuum. Fictions must imitate nature, and therefore the parties must be in presence one of the other, in order that a traditio brevi manu may be presumed. See in support of this view D. 6. i. 47 : D. 41. 2. 1. 21: D. 47. 2,43 (44). 2.

¹ He has besides an utilis actio, at any rate in cases where the usual remedy for a paterfamilias would be by actio injuriarum, quod vi aut clam, depositi, commodati, mandati, crediti, furti, ex lege Aquilia. D. 5. 1. 18. 1 : D. 44. 7. 9 and 13.

19. Iulianus libro decimo digestorum. Non omnis nu­meratio eum qui accepit obligat, sed quotiens id ipsum agitur, ut confestim obligaretur, nam et is, qui mortis causa pecuniam donat, numerat pecuniam, sed non aliter obligabit accipientem, quam si exstitisset casus, in quem obligatio collata fuisset, ueluti si donator conualuisset aut is qui accipiebat prior deces­not become the property of the receiver at all, seeing that he took it under a mistake*. Hence, although he is liable to a condiction, if he has spent it, he can employ the exception of fraud, because the money has been spent according to the in­tention of the giver. 1. If I have delivered money to you as a deposit, and you receive it as a loan, it is neither a deposit nor a loan. So again in the case where you have given money as a loan for use, and I have received it as a loan for exhibi­tion ; but in both these cases, if the money has been spent, a condiction can be brought, which will not be defeated by the exception of fraud².

19. Julian. Delivery (of money) does not invariably put the receiver under obligation, but only when there is a present intent that he should be immediately bound. For the giver of a donation mortis causa pays over the money, but will not put the receiver under obligation³, unless the event happens on which the obligation was made to depend, the recovery of the donor, for instance, from sickness, or the prior death of the sisset. et cum pecunia daretur, ut aliquid fieret, quamdiu in pendenti esset, an id futurum esset, cessabit obligatio : cum uero certum esse coepisset futurum id non esse, obligabitur qui accepisset: ueluti si Titio decem dedero, ut Stichum intra kalendas manumitteret, ante kalendas nullam actionem habebo, post kalendas ita demum agere potero, si manumissus non fuerit, (i.) Si pupillus sine tutoris auctoritate crediderit aut sol- uendi causa dederit, consumpta pecunia condictionem habet uel liberatur non alia ratione, quam quod facto eius intellegitur ad eum qui acceperit peruenisse : quapropter si eandem pecuniam is, qui in creditum uel in solutum acceperat, alii porro in creditum uel in solutum dederit, consumpta ea et ipse pupillo obligatur uel eum a se liberabit et eum cui dederit obligatum habebit uel se ab eo liberabit, nam omnino qui alienam pecuniam credendi causa dat, consumpta ea habet obligatum receiver¹. Again, supposing money to be given that something may be done, so long as it is doubtful whether it will be done or not, the obligation will be in suspense; but when it becomes certain that it will not be done, the receiver will be bound ; for instance, if I have given to Titius ten aurei to set Stichus f ee before the Kalends, till the Kalends I shall have no action, and after the Kalends I can only sue, if he has not been manumitted^{[38] [39], i. If a pupil has lent money or discharged a debt without his tutor’s authorization, he has a condiction or is released from debt by the money being spent[40], for this reason and no other, that clearly through his act the money reached the person who received it; therefore, if the person who received the money on loan or in payment, has passed it to another on loan or in payment, the second possessor, when it has been spent (by the third), becomes under obligation to the pupil or sets the pupil free from obligation to himself, and puts under obligation the person to whom he gave the money or frees himself from obligation to that person. For in all cases he who gives another’s money on loan has the}

¹ See my note on D. 41. 1. 36. Technically the money does not be­come the property of the receiver, and therefore a vindicatio can be brought, if the money is still un­consumed, and a condictio sine causa, if it has been consumed. But both the vindicatio and the condictio can be met successfully by the exceptio doli,

W.

so practically the ownership of the money passes.

² In these cases there is only a delivery of detention, not a delivery of possession, but consumption cures this defect.

³ Sc. the obligation to treat the money as a mutuum and return it.

data causa non secuta. D. 12. 4. 8.

³ Spent so as not to be traceable : for then, as it has been used to his profit, equity treats it as if it had been made his originally. So long as it is not spent or is traceable, lheie is a •vindicatio for its recovery.

eum qui acceperit: item qui in solutum dederit, liberabitur ab eo qui acceperit.

20. Idem libro octauo decimo digestorum. Si tibi pe­cuniam donassem, ut tu mihi eandem crederes, an credita fieret? dixi in huiusmodi propositionibus non propriis uerbis nos uti, nam talem contractum neque donationem esse neque pecuniam creditam: donationem non esse, quia non ea mente pecunia daretur, ut omnimodo penes accipientem maneret: creditam non esse, quia exsoluendi causa magis daretur, quam alterius obligandi, igitur si is, qui pecuniam hac condicione accepit, ut mihi in creditum daret, acceptam dederit, non fore creditam : magis enim meum accepisse intellegi debeo, sed haec intellegenda sunt propter suptilitatem uerborum: be­nignius tamen est utrumque ualere.

21. Idem libro quadragensimo octauo digestorum. Qui­dam existimauerunt neque eum, qui decem peteret, cogendum receiver under obligation so soon as the money is spent; and in the same event he who gives money in payment will be free from obligation to the receiver.

20. Julian. If I gave you money on condition that you were to lend me the same, would there be a loan ? I replied that in supposed cases of this sort we were not employing correct appellations, for that such a contract is neither a gift nor a loan : it is not a gift, because the money was not given with the intent that it should under all circumstances remain with the receiver; it is not a loan, because it was given¹ rather to discharge a duty than to lay a duty on another. Therefore, if a man who received money on the condition that he should lend it to me again, has given it back to me after receiving it, this will not be a loan ; for I ought rather to be considered to have received what was mine already. But these we must hold to be the rules if we follow the strict meaning of the words^{[41] [42]; and yet it is more equitable to consider both gift and loan to stand good.}

21. Julian. Some authorities have laid down a rule that a man who claims ten cannot be compelled to take five and

that the strict meaning of the words wis not insisted on. The mutuum therefore was sufficient to found a condictio certi.

quinque accipere et reliqua persequi, neque eum, qui fundum suum diceret, partem dumtaxat iudicio persequi: sed in utra­que causa humanius facturus uidetur praetor, si actorem com­pulerit ad accipiendum id quod offeratur, cum ad officium eius pertineat lites deminuere.

22. Idem libro quarto ex Minicio. Vinum, quod mutuum datum erat, per iudicem petitum est: quaesitum est, cuius temporis aestimatio fieret, utrum cum datum esset an cum litem contestatus fuisset an cum res indicaretur. Sabinus re­spondit, si dictum esset quo tempore redderetur, quanti tunc fuisset, si dictum non esset, quanti tunc fuisset, cum petitum esset, interrogaui, cuius loci pretium sequi oporteat, respon­dit, si conuenisset, ut certo loco redderetur, quanti eo loco esset, si dictum non esset, quanti ubi esset petitum.

23. Africanus libro secundo quaestionum. Si eum sue for the balance, nor a man who asserts that a field is his, to (take part and) bring an action for part only; but in both these instances it seems as if the Praetor would take the more reasonable course by compelling the plaintiff to accept what is tendered, for it is his duty to diminish litigation^[XLIII].

22. Julian. Wine which had been lent was sued for before a judex: the question was, at what moment should its value be taken, at the time when it was given, or at the time of the litis contestatio, or at the time of the judgment. Sabinus gave an opinion, that if mention had been made of the time when it was to be returned, its value should be taken then; if there was no such mention², its value at the time when it was sued for. I asked of what place should we take the price. He replied, if there was an agreement for it to be repaid at a certain place, the price of that place; if it was not specified, the price of the place where it was sued for³.

23. Africanus. Supposing a slave has been left to you

debtor, the loss falls on the creditor. D. 46. 3. 72. pr. _

² The words printed in italics in the text are not to be found in the MSS., but it is obvious they have been omitted through oversight of the copyist.

³ This excerpt obviously has refer­ence to the condictio triticaria, and not to the condictio certi.

seruum, qui tibi legatus sit, quasi mihi legatum possederim et uendiderim, mortuo eo posse te mihi pretium condicere lulia- nus ait, quasi ex re tua locupletior factus sim.

24. Ulpianus libro singulari pandectarum. Si quis cer­tum stipulatus fuerit, ex stipulatu actionem non habet, sed illa condicticia actione id persequi debet, per quam certum pe­titur.

25. Idem libro singulari de officio consularium. Creditor, qui ob restitutionem aedificiorum crediderit, in pecuniam quam crediderit priuilegium exigendi habebit.

26. Idem libro quinto opinionum. Si pecuniam militis procurator eius mutuam dedit fideiussoremque accepit, exemplo eo quo si tutor pupilli aut curator iuuenis pecuniam alterutrius as a legacy, and I take possession of him as if he had been left to me, and sell him, Julian says that even though he be dead, you can bring a condiction against me, on the ground that I have been enriched by means of your property¹.

24. Ulpian. If a person has stipulated for a definite sum of money, he has not an action ex stipulatu, but should pro­secute his claim by the condiction for the recovery of a specific sum of money^{[44] [45].}

25. Ulpian. A creditor who has lent for the repair of buildings will have a priority in recovering the money which he lent.

26. Ulpian. If the agent of a soldier has lent the soldier’s money and taken a surety for it, it has been decided that an action is to be granted to the soldier himself, to whom the money belonged, in the same manner as (an action is granted) when a tutor has stipulated for the money of his ward which

cally denote any thing definite, i.e. a certain quantity of res fungibiles or a specific thing: but we must not imagine that Ulpian here contra­dicts his own express statement in D. 13. 3. 1, and therefore must restrict the meaning of certum, and regard it as equivalent to certa pecunia. See Introduction (E).

eorum creditam stipulatus fuerit, actionem dari militi cuius pecunia fuerit placuit.

27. Idem libro decimo ad edictum. Ciuitas mutui datione obligari potest, si ad utilitatem eius pecuniae uersae sunt: alioquin ipsi soli qui contraxerunt, non ciuitas tenebuntur.

28. Gaius libro uicensimo primo ad edictum prouinciale. Creditor, qui non idoneum pignus accepit, non amittit exactio­nem eius debiti quantitatis, in quam pignus non sufficit.

29. Paulus libro quarto ad Plautium. Si institorem ser- uum dominus habuerit, posse dici Julianus ait etiam condici ei posse, quasi iussu eius contrahatur, a quo praepositus sit.

30. Idem libro quinto ad Plautium. Qui pecuniam credi­tam accepturus spopondit creditori futuro, in potestate habet, ne accipiendo se ei obstringat.

has been lent, or a curator for that of the youth under his charge¹.

27. Ulpian. A municipality can be bound by the delivery to them of a loan, if the money was employed to their benefit; otherwise, those alone who made the contract, and not the municipality, will be bound.

28. Gaius. A creditor who has taken an insufficient pledge does not lose his right to exact the balance not covered by the pledge.

29. Paulus. If a master has employed a slave as his in­stitor, Julian says that it may be laid down that a condiction can also^{[46] [47] be brought against the master, on the ground that the slave contracts by command of the person by whom he was put in charge.}

30. Paulus. A person who has made a promise to an in­tended creditor when purposing to take a loan, has it in his own power to avoid binding himself to the other by taking it³.

toria, if the slave’s contract is a mu­tuum.

³ He is not liable in a condictio certi, since mutuum is a real con­tract, and he has not received any­thing: whether he is not liable for damages, if the non-receipt was through his default, is another ques­tion.

31. Idem libro septimo decimo ad Plautium. Cum fun­dus uel homo per condictionem petitus esset, puto hoc nos iure uti, ut post indicium acceptum causa omnis restituenda sit, id est omne, quod habiturus esset actor, si litis contestandae tempore solutus fuisset. (1.) Seruum tuum imprudens a fure bona fide emi: is ex peculio, quod ad te pertinebat, hominem parauit, qui mihi traditus est. Sabinus Cassius posse te mihi hominem condicere : sed si quid mihi abesset ex negotio quod is gessisset, inuicem me tecum acturum, et hoc uerum est: nam et lulianus ait uidendum, ne dominus integram ex empto actionem habeat, uenditor autem condicere possit bonae fidei

31. Paulus. When a field or a slave is claimed by condic- tion, I think we observe the rule that all accruals after issue joined must be delivered up, i.e. all that the plaintiff would have had, if payment had been made at the moment of the litis contestatio. 1. I bought your slave¹ without knowing (he was yours) in good faith from a thief; he purchased a slave out of his peculium which belonged to you^{[48] [49], and this servus vicarius was delivered to me[50]. Sabinus and Cassius think that you can bring a condiction for the vicarius against me[51] [52]; but that if I have suffered any loss by what the ordinarius did3, I in my turn can sue you. And this is correct, for Julian also says we must consider[53] whether the owner has not his action ex empto safe, whilst the vendor can bring a condiction against the bona fide possessor[54]. As to the purchase money}

prised in the peculium of the ordi- nariits which appertains to me. If you sue me for the slave, I can claim these expenses as a set-off. If I have already delivered the slave to you, I can bring a condictio incerti to recover my expenses. D. 12. 6. 40. 1.

⁶ Videiidum sit: this implies here, as it does often elsewhere, that thj writer held the affirmative.

⁷ The owner of the ordinarius has an action ex empto against the man who sold the vicarius to the ordi­narius, for he has delivered him to a wrong person. But to prevent this vendor suffering hurt, he has in turn a condictio sine causa against

emptori, quod ad peculiares nummos attinet, si exstant, uindi- care eos dominus potest, sed actione de peculio tenetur uendi- tori, ut pretium soluat: si consumpti sint, actio de peculio euanescit. sed adicere debuit lulianus non aliter domino serui uenditorem ex empto teneri, quam si ei pretium solidum et quaecumque, si cum libero contraxisset, deberentur, domi­nus serui praestaret, idem dici debet, si bonae fidei posses­sori soluissem, si tamen actiones, quas aduersus eum habeam, praestare domino paratus sim.

32. Celsus libro quinto digestorum. Si et me et Titium mutuam pecuniam rogaueris, et ego meum debitorem tibi pro­mittere iusserim, tu stipulatus sis, cum putares eum Titii debi- which came out of the peculium,—if it be traceable, the owner (of the ordinarius} can bring a vindication for it, but he will then be liable to the vendor’s action de peculio for enforcement of payment¹; if it has been spent, the action de peculio falls through². But Julian ought to add that the vendor is only liable ex empto to the owner of the slave, when the owner of the slave has paid to him the full price and anything else which would have been due, if he had made his contract with a freeman®. The same must be said⁴, if I have delivered the vicarius to the bona fide possessor (of the ordinarius}, provided only that I am prepared to transfer to the dominus the actions which I have against the possessor⁵.

32. Celsus. If you have asked both Titius and me to lend you money, and I have directed my debtor to promise it to you, and you have stipulated with him under the supposition torem esse, an mihi obligaris ? subsisto, si quidem nullum negotium mecum contraxisti: sed propius est ut obligari te existimem, non quia pecuniam tibi credidi (hoc enim nisi inter consentientes fieri non potest): sed quia pecunia mea ad te peruenit, eam mihi a te reddi bonum et aequum est.

the bonae fidei possessor of the ordi- narius, to whom the vicarius was delivered.

¹ The actual purchase money is his own, but if he reclaims it and yet keeps the slave (i.e. the vicarius), good faith requires that he should pay lor the slave with other money.

² Consumption makes the purchase money the property of the vendor ; hence the action de peculio falls thrcngh, because there is no condictio (as of course there is no vindication for the purchase money. The vendor has received his payment, and can­not lose it again, so as to require the actio de peculio.

³ Julian is contrasting the rights of the vendor as plaintiff, and of the dominus ordinarii as plaintiff. If the former sues, he can only claim to the extent of the peculium of the or- dinarius: if the latter, he can claim the slave or his full value, if he has himself done all that good faith re­quires. Et quacctimque &c. in­cludes interest, for instance, if he claims fulfilment of the contract some time after it was made.

⁴ Sc. that the vendor is not liable to the action ex vendito of the do­minus ordinarii.

⁵ Sc. the condictio sine causa or condictio indebiti.

33. Modestinus libro decimo pandectarum. Principali­bus constitutionibus cauetur, ne hi qui prouinciam regunt quiue circa eos sunt negotientur mutuamue pecuniam dent foenusue exerceant.

34. Paulus libro secundo sententiarum. Praesidis pro- uinciae officiales, quia perpetui sunt, mutuam pecuniam dare et foenebrem exercere possunt. (1.) Praeses prouinciae mutuam pecuniam foenebrem sumere non prohibetur.

35. Modestinus libro tertio responsorum. Periculum nominum ad eum, cuius culpa deterius factum probari potest, pertinet.

that he was a debtor of Titius, are you under obligation to me ? I doubt it, since you made no contract with me; but yet it is more proper that I should consider you bound, not because I have lent you money (for there cannot be a loan except between consenting parties), but because it is right and fair that when my money^[LV] has come into your hands, it should be returned by you.

33. Modestinus. It is laid down in the Imperial Constitu­tions that provincial governors and their officials shall not engage in trade, lend money or take interest.

34. Paulus. The officials of the governor of a province, since their office is a standing one, can lend money and take interest. 1. The governor of a province is not forbidden to borrow money on interest.

35. Modestinus. The responsibility for outstanding debts falls on the person by whose fault the debt can be proved to have become insecure.

this theory, it seems more reasonable to allow a condictio sine causa; for although you would have taken the money, if you had known it was mine, yet in fact you took it without knowledge that it was mine, and so without proper cause, because not in fulfilment of our agreement.

36. Iavolenus libro primo epistularum. Pecuniam, quam mihi sine condicione debebas, iussu meo promisisti Attio sub condicione: cum pendente condicione in eo statu sit obligatio tua aduersus me, tamquam sub contrariam condicionem eam mihi spopondisti, si pendente condicione petam, an nihil acturus sum? respondit: non dubito, quin mea pecunia, quam ipse sine condicione stipulatus sum, etiam si condicio in persona Attii, qui ex mea uoluntate eandem pecuniam sub condicione stipulatus est, non extiterit, credita esse permaneat: (perinde est enim, ac si nulla stipulatio interuenisset): pendente autem causa condicionis idem petere non possum, quoniam, cum incertum sit, an ex ea stipulatione deberi possit, ante tempus petere uideor.

37. Papinianus libro primo definitionum. Cum ad prae­sens tempus condicio confertur, stipulatio non suspenditur et, si condicio uera sit, stipulatio tenet, quamuis tenere contra-

36. Javoknus. By my direction you promised to Attius conditionally money which you already owed me uncondition­ally. Now, inasmuch as, whilst the condition is pending, your obligation towards me is in the same position as if you had promised the money to me on the contrary condition, shall I sue to no effect, if I sue whilst the condition still pends? It was replied : I have no doubt that my money, which I myself stipulated for unconditionally, continues to be money lent, even though the condition does not come to pass with reference to Attius, who stipulated conditionally for the same money with my consent. For the case is (in that event) the same as if no second stipulation had been introduced : but, pending the decision of the condition, I cannot sue for the sum, for, inasmuch as it remains uncertain whether it can become due under that stipulation, I appear to sue before the time.

37. Papiniani When a condition is made to depend on the present moment, the stipulation is not in suspense, and if the condition be a reality the stipulation is binding, although the contracting parties may not know that the condition holds; hentes condicionem ignorent, ueluti ‘si rex Parthorum uiuit, ‘centum mihi dari spondes?’ eadem sunt et cum in praeteri­tum condicio confertur.

¹ The excerpts 37, 38, 39 are evi­dently misplaced, no unusual circum­stance in the Pandects, and belong properly to D. 45. 1, De verboruni

obligationibus. They have been in­troduced here, because a stipulation can be the ground of a condictio, certi, triticaria or incerti.

38. Scaevola libro primo quaestionum. Respiciendum enim esse, an, quantum in natura hominum sit, possit scire eam debitu iri..

39. Papinianus libro primo definitionum. Itaque tunc potestatem condicionis optinet, cum in futurum confertur.

40. Paulus libro tertio quaestionum. Lecta est in audi­torio Aemilii Papiniani praefecti praetorio iuris consulti cautio huiusmodi: ‘Lucius Titius scripsi me accepisse a Publio ‘ Maeuio quindecim mutua numerata mihi de domo, et haec ‘ quindecim proba recte dari kalendis futuris stipulatus est ‘ Publius Maeuius, spopondi ego Lucius Titius, si die supra ‘ scripta summa Publio Maeuio eiue ad quem ea res pertinebit ‘ data soluta satisue eo nomine factum non erit, tunc eo for example, “if the king of the Parthians is alive, do you engage to give me a hundred aurei V' So also is it when the condition depends on the past.

38. Scaevola. For we have to consider whether it is possi­ble, by human capacity, to ascertain that the money will be due¹.

39. Papinian. Hence, it has the force of a condition when it depends on the future.

40. Paulus³. In the court of Aemilius Papinianus, the Praetorian Prefect and Jurisconsult, there was recited a memo­randum thus worded : “ I, Lucius Titius, admit in writing that I have received fifteen aurei on loan from Publius Maevius, paid to me out of his estate³, and Publius Maevius has stipu­lated that these fifteen aurei shall be well and truly paid on the first day of next month, and I, Lucius Titius, have so engaged. If the sum shall not be given and paid on the day before-mentioned to Publius Maevius or to him who is entitled to it⁴, or if sureties be not given for the same, then addition -

It belongs to the topic of Pacts, and should have been placed in D. 2. 14.

³ See Dirksen, sub verb.

⁴ Sc. “to Publius Maevius or his heir,” as we see from the concluding words of the compact.

28

‘ amplius, quo post soluam, poenae nomine in dies triginta inque ‘denarios centenos denarios singulos dari stipulatus est Publius ‘ Maeuius, spopondi ego Lucius Titius, conuenitque inter nos, ‘ uti pro Maeuio ex summa supra scripta menstruos refundere ‘ debeam denarios trecenos ex omni summa ei herediue eius.’ quaesitum est de obligatione usurarum, quoniam numeros men­sium, qui solutioni competebat, transierat, dicebam, quia pacta in continenti facta stipulationi inesse creduntur, perinde esse, ac si per singulos menses certam pecuniam stipulatus, quoad tardius soluta esset, usuras adiecisset: igitur finito primo mense primae pensionis usuras currere, et similiter post secundum et tertium tractum usuras non solutae pecuniae pensionis crescere, nec ante sortis non solutae usuras peti posse quam ipsa sors ally, in proportion to the time of my default in payment, Publius Maevius has stipulated that by way of penalty there shall be given a denarius for every thirty days and for every hundred denarii, and I, Lucius Titius, have so engaged. And it is agreed^[LVI] between us that for the convenience of Maevius I shall, out of the before-named sum, repay each month three hundred denarii of the entire amount to him or his heir.” The question was as to the obligation to pay interest, for he had exceeded the number of months allowed⁸ for the pay­ment. I replied, that as pacts made concurrently with a stipu­lation are considered to form part of it, the case is the same as if he had stipulated for a particular sum each month, and imposed interest for payments made after date; therefore, when the first month had expired, interest ran on the first instalment, and so after the second and third interval interest accrued on the unpaid money of the instalment, and interest for unpaid principal³ could not be demanded till the principal

² Sc. allowed by the pact pro­viding for payment by instalments. Interest was due according to the original stipulation, but an extension of time had been allowed by the pact. How then did this affect the reckon­ing of interest?

³ I.e. on unpaid instalments of the principal. The interest was due ex mora, and there was no default when payments were postponed by the pact.

peti potuerat, pactum autem quod subiectum est quidam dicebant ad sortis solutionem tantum pertinere, non etiam ad usurarum, quae priore parte simpliciter in stipulationem uenis- sent, pactumque id tantum ad exceptionem prodesse, et ideo non soluta pecunia statutis pensionibus ex die stipulationis usuras deberi, atque si id nominatim esset expressum, sed cum sortis petitio dilata sit, consequens est, ut etiam usurae ex eo tempore, quo moram fecit, accedant, et si, ut ille putabat, ad exceptionem tantum prodesset pactum (quamuis sententia diuersa optinuerit), tamen usurarum obligatio ipso iure non com­mittetur : non enim in mora est is, a quo pecunia propter excep­tionem peti non potest, sed quantitatem, quae medio tempore colligitur, stipulamur, cum condicio exstiteret, sicut est in itself could be demanded. But some maintained that the added pact merely referred to the payment of the principal, and not also to that of the interest, which had been made the matter of an absolute¹ stipulation in the earlier part (of the agreement), and that the pact only availed as an exception; and therefore when the money was not paid by the prescribed payments, interest was due from the date of the stipulation^{[57] [58], just as if it had been expressly so stated. But as the recovery of the principal was postponed[59], it follows that the interest also accrues from the time when the debtor made default; and even if, as he thought[60], the pact only availed as an exception (although the opposite opinion was approved), yet still a lia­bility to interest will not be incurred through the letter of the law[61]; for a man is not in default when money cannot be claimed from him because of an exception. We do, however, (sometimes) stipulate that the amount which accrues during the intermediate time (shall be paid) when the condition vests, as}

the law, if the pactum adjectum was not part of the contract. But it was part of the contract. Still, if, for argument’s sake, it had only furnish­ed an exception, the interest would not have been exacted according to the letter of the law, though due according to the letter of the law ; for the letter of the law would have been overridden by the exception.

3o

fructibus: idem et in usuris potest exprimi, ut ad diem non soluta pecunia quo competit usurarum nomine ex die inter­positae stipulationis praestetur.

41. Africanus libro octauo quaestionum. Eius, qui in prouincia Stichum seruum kalendario praeposuerat. Romae testamentum recitatum erat, quo idem Stichus liber et ex parte heres erat scriptus: qui status sui ignarus pecunias defuncti aut exegit aut credidit, ut interdum stipularetur et pignora acciperet, consulebatur quid de his iuris esset, place­bat debitores quidem ei qui soluissent liberatos esse, si modo ipsi quoque ignorassent dominum decessisse, earum autem summarum nomine, quae ad Stichum peruenissent, familiae herciscundae quidem actionem non competere coheredibus, for example in the case of fruits : the same also may be ex­pressed in the case of interest, so that when the money is not paid to the day, that sum shall be paid which has accrued as interest from the date when the stipulation was made¹.

41. Africanus. A testament was published at Rome, made by a person who had appointed his slave Stichus to manage his money-matters^{[62] [63] in a province, wherein the said Stichus was made free and heir in part. He, not knowing his condition, got in or lent money of the deceased, in such wise that he occasionally[64] [65] stipulated and took pledges. An opinion was requested as to the legal bearing of these acts. It was held that, at any rate, the debtors who had paid him were acquitted, provided only they, as well as he, were unaware that his master was dead. But with regard to the sums which had come into Stichus’ hands, the heirs had no actio familiae erciscundae*, though an actio negotiorum gestorum ought to be}

that capacity, not even knowing that he was an heir: end, leaving his ignorance or knowledge out of the question, he could possibly have se­cured his own rights without inter­fering with the affairs of his co-heirs, for he could have taken payment of his own proportion, and left them to exact theirs. Hence, we can apply the rule in D. 10. 3. 6. 2, that pro­ceedings by communi dividundo (and of course byfamiliae erciscundae also) cannot be taken unless something

3¹

sed negotiorum gestorum dari debere, quas uero pecunias ipse credidisset, eas non ex maiore parte, quam ex qua ipse heres sit, alienatas esse: nam et si tibi in hoc dederim nummos, ut eos Sticho credas, deinde mortuo me ignorans dederis, ac­cipientis non facies : neque enim sicut illud receptum est, ut debitores soluentes ei liberentur, ita hoc quoque receptum, ut credendo nummos alienaret, quare si nulla stipulatio inter- uenisset, neque ut creditam pecuniam pro parte coheredis peti posse neque pignora teneri, quod si stipulatus quoque esset, referret, quemadmodum stipulatus esset: nam si nominatim forte Titio domino suo mortuo iam dari stipulatus sit, procul dubio inutiliter esset stipulatus, quod si sibi dari stipulatus esset, dicendum hereditati eum adquisisse: sicut enim nobis­granted to them. And with regard to the sums which he had lent, these had not been alienated to a greater extent than the proportion for which he was heir¹ : for even if I give you money in order that you may lend it to Stichus, and thereupon you give it, not knowing that I have died, you will not make the money the property of the recipient²; for although it is allowed that the debtors who pay Stichus are absolved, it is not also allowed that Stichus alienates money by lending it. Therefore, if no stipulation was interposed, there cannot be a suit for money lent, nor retention of the pledges, on account of a coheir’s proportion. But if he added a stipulation, it would be material in what manner he stipulated. For if he stipulated expressly for it to be given to his master, Titius suppose, who was already dead, undoubtedly he made a void stipulation³. But if he stipulated for it to be given to himself, we must decide that he has acquired it for the inheritance⁴; for just as met ipsis ex re nostra per eos, qui liberi uel alieni serui bona fide seruiant, adquiratur, ita hereditati quoque ex re here­ditaria adquiri. post aditam uero a coheredibus hereditatem non aeque idem dici potest, utique si scierint eum sibi cohere­dem datum, quoniam tunc non possunt uideri bonae fidei pos­sessores esse, qui nec possidendi animum haberent, quod si proponatur coheredes eius id ignorasse, quod forte ipsi quoque ex necessariis fuerint, potest adhuc idem responderi: quo quidem casu illud euenturum, ut, si suae condicionis coheredes iste seruus habeat, inuicem bona fide seruire uideantur.

has been done by a partner (or co­heir) without doing which he could not adequately guard his own inter­ests.

¹ This is all that need be stated for the present argument: but Afri­canus might have added that he did not even alienate his own share, as he acted in ignorance that it belonged to him. D. 41. 1. 35; B.J2. 4. 3. 8.

² The mandate is revoked by the

death of the giver of it. Just. Inst. 3. 26. 10 : D. 17. 1. 26. pr. and 1.

³ When a stipulation is for Titius, it is a tacit implication that Titius is alive and can take, therefore if Titius be already dead, the implied condition is not in suspense, but void. See § 37 above.

⁴ He is part of the inheritance, or at any rate in good faith con­siders himself part of the inherit­ance, till he is informed that he is

42. Celsus libro sexto digestorum. Si ego decem stipu­latus a Titio deinceps stipuler a Seio, quanto minus a Titio consequi possim : si decem petiero a Titio, non liberatur Seius, alioquin nequicquam mihi cauetur: at si iudicatum fecerit acquisition is made for ourselves in connection with our sub­stance by means of those persons, whether free or the slaves of other people, who are serving us in good faith, so also is acqui­sition made for the inheritance in connection with an item of the inheritance. But after his co-heirs have made entry on the inheritance, the same cannot be laid down as before, at any rate if they knew that he was appointed their co-heir; for then they cannot be considered to be possessors in good faith, since they had no intention of possessing¹. But if it be supposed that his co-heirs were ignorant, because, perhaps, they too were heredes necessarii, the same rule can still be laid down. On which hypothesis this also will be a result, that when such a slave has co-heirs of the same condition as him­self, they in their turn would seem to serve him in good faith.

42. Celsus'. If, after stipulating with Titius for ten aurei, I afterwards stipulate with Seius for the deficiency of what I can obtain from Titius ; then, supposing I sue Titius for ten, Seius is not acquitted, for otherwise his engagement Titius, nihil ultra Seius tenebitur, sed si cum Seio egero, quantumcumque est quo minus a Titio exigere potuero eo tempore, quo indicium inter me et Seium acceptum est, tanto minus a Titio postea petere possum, (i.) Labeo ait, cum decem dari curari stipulatus sis, ideo non posse te decem dare oportere intendere, quia etiam reum locupletiorem dando promissor liberari possit: quo scilicet significat non esse cogen­dum eum accipere iudicium, si reum locupletem offerat.

free. He therefore acquires for the inheritance, as a freeman acquires for one whom he believes to be his master. It is also ex operis sitis, for he is by vocation a dispensator.

¹ Sc. of possessing Stichus. If they did not know, Stichus acquires for the inheritance, and the inherit­ance appertains to them. This is

what is meant in the next sentence too, ''potest adhuc idem responderi." There is a presumption that a slave knows nothing: “servus nescit quod faciat dominus eius.”

² This excerpt should be placed under D. 45. 1, De verborum obli­gationibus.

would be of no value to me; although if Titius has paid the amount adjudged, Seius will not be liable for anything further. But if I sue Seius for the deficiency of the amount which I can exact from Titius at the time when the suit is instituted between Seius and myself, I can afterwards only sue Titius for so much less. i. Labeo says, that when you have stipulated that ten aurei “shall be caused to be given^[LXVI],’’ you cannot plead that ten ought to be given, because the promiser can acquit himself also by providing a wealthy defendant²; by which, un­doubtedly, he intends to say that he need not defend the suit, if he provides a rich defendant.

further on adds, “idque et Celsus libro sexto Digestorum refert.” So that he seems to be quoting the very passage in the text.

² Sc. as well as by paying the money. Therefore there is a plus petitio ex causa, if you take from him his option. Gai. Comm. 4. 53. a.