Produced by Howard Sauertieg










THE INSTITUTES OF JUSTINIAN

Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn,
Barrister-at-Law, Fellow and Late Tutor of New College, Oxford

Fifth Edition (1913)



PROOEMIVM

In the name of Our Lord, Jesus Christ.

The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the
Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the
Africans, pious, prosperous, renowned, victorious, and triumphant, ever
august,

To the youth desirous of studying the law:

The imperial majesty should be armed with laws as well as glorified
with arms, that there may be good government in times both of war and
of peace, and the ruler of Rome may not only be victorious over his
enemies, but may show himself as scrupulously regardful of justice as
triumphant over his conquered foes.

With deepest application and forethought, and by the blessing of God, we
have attained both of these objects. The barbarian nations which we have
subjugated know our valour, Africa and other provinces without number
being once more, after so long an interval, reduced beneath the sway of
Rome by victories granted by Heaven, and themselves bearing witness to
our dominion. All peoples too are ruled by laws which we have either
enacted or arranged. Having removed every inconsistency from the sacred
constitutions, hitherto inharmonious and confused, we extended our care
to the immense volumes of the older jurisprudence; and, like sailors
crossing the mid-ocean, by the favour of Heaven have now completed a
work of which we once despaired. When this, with God's blessing, had
been done, we called together that distinguished man Tribonian, master
and exquaestor of our sacred palace, and the illustrious Theophilus and
Dorotheus, professors of law, of whose ability, legal knowledge, and
trusty observance of our orders we have received many and genuine
proofs, and especially commissioned them to compose by our authority and
advice a book of Institutes, whereby you may be enabled to learn your
first lessons in law no longer from ancient fables, but to grasp them by
the brilliant light of imperial learning, and that your ears and minds
may receive nothing useless or incorrect, but only what holds good in
actual fact. And thus whereas in past time even the foremost of you were
unable to read the imperial constitutions until after four years, you,
who have been so honoured and fortunate as to receive both the beginning
and the end of your legal teaching from the mouth of the Emperor, can
now enter on the study of them without delay. After the completion
therefore of the fifty books of the Digest or Pandects, in which all
the earlier law has been collected by the aid of the said distinguished
Tribonian and other illustrious and most able men, we directed the
division of these same Institutes into four books, comprising the
first elements of the whole science of law. In these the law previously
obtaining has been briefly stated, as well as that which after becoming
disused has been again brought to light by our imperial aid. Compiled
from all the Institutes of our ancient jurists, and in particular from
the commentaries of our Gaius on both the Institutes and the common
cases, and from many other legal works, these Institutes were submitted
to us by the three learned men aforesaid, and after reading
and examining them we have given them the fullest force of our
constitutions.

Receive then these laws with your best powers and with the eagerness of
study, and show yourselves so learned as to be encouraged to hope that
when you have compassed the whole field of law you may have ability to
govern such portion of the state as may be entrusted to you.

Given at Constantinople the 21st day of November, in the third consulate
of the Emperor Justinian, Father of his Country, ever august.




BOOK I.

     TITLES
     I. Of Justice and Law
     II. Of the law of nature, the law of nations,
     and the civil law
     III. Of the law of persons
     IV. Of men free born
     V. Of freedmen
     VI. Of persons unable to manumit, and the
     causes of their incapacity
     VII. Of the repeal of the lex Fufia Caninia
     VIII. Of persons independent or dependent
     IX. Of paternal power
     X. Of marriage
     XI. Of adoptions
     XII. Of the modes in which paternal power
     is extinguished
     XIII. Of guardianships
     XIV. Who can be appointed guardians by will
     XV. Of the statutory guardianship of agnates
     XVI. Of loss of status
     XVII. Of the statutory guardianship of patrons
     XVIII. Of the statutory guardianship of parents
     XIX. Of fiduciary guardianship
     XX. Of Atilian guardians, and those appointed
     under the lex Iulia et Titia
     XXI. Of the authority of guardians
     XXII. Of the modes in which guardianship
     is terminated
     XXIII. Of curators
     XXIV. Of the security to be given by guardians
     and curators
     XXV. Of guardians' and curators' grounds
     of exemption
     XXVI. Of guardians or curators who are
     suspected




TITLE I. OF JUSTICE AND LAW

Justice is the set and constant purpose which gives to every man his
due.

1 Jurisprudence is the knowledge of things divine and human, the science
of the just and the unjust.

2 Having laid down these general definitions, and our object being
the exposition of the law of the Roman people, we think that the most
advantageous plan will be to commence with an easy and simple path, and
then to proceed to details with a most careful and scrupulous exactness
of interpretation. Otherwise, if we begin by burdening the student's
memory, as yet weak and untrained, with a multitude and variety of
matters, one of two things will happen: either we shall cause him wholly
to desert the study of law, or else we shall bring him at last, after
great labour, and often, too, distrustful of his own powers (the
commonest cause, among the young, of ill-success), to a point which
he might have reached earlier, without such labour and confident in
himself, had he been led along a smoother path.

3 The precepts of the law are these: to live honestly, to injure no one,
and to give every man his due.

4 The study of law consists of two branches, law public, and law
private. The former relates to the welfare of the Roman State; the
latter to the advantage of the individual citizen. Of private law then
we may say that it is of threefold origin, being collected from the
precepts of nature, from those of the law of nations, or from those of
the civil law of Rome.




TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW

1 The law of nature is that which she has taught all animals; a law not
peculiar to the human race, but shared by all living creatures, whether
denizens of the air, the dry land, or the sea. Hence comes the union
of male and female, which we call marriage; hence the procreation and
rearing of children, for this is a law by the knowledge of which we see
even the lower animals are distinguished. The civil law of Rome, and
the law of all nations, differ from each other thus. The laws of every
people governed by statutes and customs are partly peculiar to itself,
partly common to all mankind. Those rules which a state enacts for its
own members are peculiar to itself, and are called civil law: those
rules prescribed by natural reason for all men are observed by all
peoples alike, and are called the law of nations. Thus the laws of
the Roman people are partly peculiar to itself, partly common to all
nations; a distinction of which we shall take notice as occasion offers.

2 Civil law takes its name from the state wherein it binds; for
instance, the civil law of Athens, it being quite correct to speak thus
of the enactments of Solon or Draco. So too we call the law of the Roman
people the civil law of the Romans, or the law of the Quirites; the law,
that is to say, which they observe, the Romans being called Quirites
after Quirinus. Whenever we speak, however, of civil law, without any
qualification, we mean our own; exactly as, when 'the poet' is spoken
of, without addition or qualification, the Greeks understand the great
Homer, and we understand Vergil. But the law of nations is common to the
whole human race; for nations have settled certain things for themselves
as occasion and the necessities of human life required. For instance,
wars arose, and then followed captivity and slavery, which are contrary
to the law of nature; for by the law of nature all men from the
beginning were born free. The law of nations again is the source of
almost all contracts; for instance, sale, hire, partnership, deposit,
loan for consumption, and very many others.

3 Our law is partly written, partly unwritten, as among the Greeks.
The written law consists of statutes, plebiscites, senatusconsults,
enactments of the Emperors, edicts of the magistrates, and answers of
those learned in the law.

4 A statute is an enactment of the Roman people, which it used to make
on the motion of a senatorial magistrate, as for instance a consul. A
plebiscite is an enactment of the commonalty, such as was made on the
motion of one of their own magistrates, as a tribune. The commonalty
differs from the people as a species from its genus; for 'the people'
includes the whole aggregate of citizens, among them patricians and
senators, while the term 'commonalty' embraces only such citizens as are
not patricians or senators. After the passing, however, of the statute
called the lex Hortensia, plebiscites acquired for the first time the
force of statutes.

5 A senatusconsult is a command and ordinance of the senate, for when
the Roman people had been so increased that it was difficult to assemble
it together for the purpose of enacting statutes, it seemed right that
the senate should be consulted instead of the people.

6 Again, what the Emperor determines has the force of a statute, the
people having conferred on him all their authority and power by the
'lex regia,' which was passed concerning his office and authority.
Consequently, whatever the Emperor settles by rescript, or decides in
his judicial capacity, or ordains by edicts, is clearly a statute: and
these are what are called constitutions. Some of these of course are
personal, and not to be followed as precedents, since this is not the
Emperor's will; for a favour bestowed on individual merit, or a
penalty inflicted for individual wrongdoing, or relief given without
a precedent, do not go beyond the particular person: though others are
general, and bind all beyond a doubt.

7 The edicts of the praetors too have no small legal authority, and
these we are used to call the 'ius honorarium,' because those who occupy
posts of honour in the state, in other words the magistrates, have given
authority to this branch of law. The curule aediles also used to issue
an edict relating to certain matters, which forms part of the ius
honorarium.

8 The answers of those learned in the law are the opinions and views of
persons authorized to determine and expound the law; for it was of old
provided that certain persons should publicly interpret the laws, who
were called jurisconsults, and whom the Emperor privileged to give
formal answers. If they were unanimous the judge was forbidden by
imperial constitution to depart from their opinion, so great was its
authority.

9 The unwritten law is that which usage has approved: for ancient
customs, when approved by consent of those who follow them, are like
statute.

10 And this division of the civil law into two kinds seems not
inappropriate, for it appears to have originated in the institutions of
two states, namely Athens and Lacedaemon; it having been usual in the
latter to commit to memory what was observed as law, while the Athenians
observed only what they had made permanent in written statutes.

11 But the laws of nature, which are observed by all nations alike, are
established, as it were, by divine providence, and remain ever fixed and
immutable: but the municipal laws of each individual state are subject
to frequent change, either by the tacit consent of the people, or by the
subsequent enactment of another statute.

12 The whole of the law which we observe relates either to persons, or
to things, or to actions. And first let us speak of persons: for it is
useless to know the law without knowing the persons for whose sake it
was established.




TITLE III. OF THE LAW OF PERSONS

In the law of persons, then, the first division is into free men and
slaves.

1 Freedom, from which men are called free, is a man's natural power of
doing what he pleases, so far as he is not prevented by force or law:

2 slavery is an institution of the law of nations, against nature
subjecting one man to the dominion of another.

3 The name 'slave' is derived from the practice of generals to order the
preservation and sale of captives, instead of killing them; hence they
are also called mancipia, because they are taken from the enemy by the
strong hand.

4 Slaves are either born so, their mothers being slaves themselves; or
they become so, and this either by the law of nations, that is to say
by capture in war, or by the civil law, as when a free man, over twenty
years of age, collusively allows himself to be sold in order that he may
share the purchase money.

5 The condition of all slaves is one and the same: in the conditions
of free men there are many distinctions; to begin with, they are either
free born, or made free.




TITLE IV. OF MEN FREE BORN

A freeborn man is one free from his birth, being the offspring of
parents united in wedlock, whether both be free born or both made free,
or one made free and the other free born. He is also free born if his
mother be free even though his father be a slave, and so also is
he whose paternity is uncertain, being the offspring of promiscuous
intercourse, but whose mother is free. It is enough if the mother be
free at the moment of birth, though a slave at that of conception: and
conversely if she be free at the time of conception, and then becomes a
slave before the birth of the child, the latter is held to be free born,
on the ground that an unborn child ought not to be prejudiced by the
mother's misfortune. Hence arose the question of whether the child of a
woman is born free, or a slave, who, while pregnant, is manumitted, and
then becomes a slave again before delivery. Marcellus thinks he is born
free, for it is enough if the mother of an unborn infant is free at any
moment between conception and delivery: and this view is right.

1 The status of a man born free is not prejudiced by his being placed
in the position of a slave and then being manumitted: for it has been
decided that manumission cannot stand in the way of rights acquired by
birth.




TITLE V. OF FREEDMEN

Those are freedmen, or made free, who have been manumitted from legal
slavery. Manumission is the giving of freedom; for while a man is in
slavery he is subject to the power once known as 'manus'; and from that
power he is set free by manumission. All this originated in the law
of nations; for by natural law all men were born free--slavery, and by
consequence manumission, being unknown. But afterwards slavery came in
by the law of nations; and was followed by the boon of manumission; so
that though we are all known by the common name of 'man,' three classes
of men came into existence with the law of nations, namely men free
born, slaves, and thirdly freedmen who had ceased to be slaves.

1 Manumission may take place in various ways; either in the holy church,
according to the sacred constitutions, or by default in a fictitious
vindication, or before friends, or by letter, or by testament or any
other expression of a man's last will: and indeed there are many other
modes in which freedom may be acquired, introduced by the constitutions
of earlier emperors as well as by our own.

2 It is usual for slaves to be manumitted by their masters at any time,
even when the magistrate is merely passing by, as for instance while the
praetor or proconsul or governor of a province is going to the baths or
the theatre.

3 Of freedmen there were formerly three grades; for those who were
manumitted sometimes obtained a higher freedom fully recognised by the
laws, and became Roman citizens; sometimes a lower form, becoming by
the lex Iunia Norbana Latins; and sometimes finally a liberty still more
circumscribed, being placed by the lex Aelia Sentia on the footing of
enemies surrendered at discretion. This last and lowest class, however,
has long ceased to exist, and the title of Latin also had become rare:
and so in our goodness, which desires to raise and improve in every
matter, we have amended this in two constitutions, and reintroduced the
earlier usage; for in the earliest infancy of Rome there was but one
simple type of liberty, namely that possessed by the manumitter, the
only distinction possible being that the latter was free born, while
the manumitted slave became a freedman. We have abolished the class of
'dediticii,' or enemies surrendered at discretion, by our constitution,
published among those our decisions, by which, at the suggestion of the
eminent Tribonian, our quaestor, we have set at rest the disputes of
the older law. By another constitution, which shines brightly among the
imperial enactments, and suggested by the same quaestor, we have altered
the position of the 'Latini Iuniani,' and dispensed with all the rules
relating to their condition; and have endowed with the citizenship
of Rome all freedmen alike, without regard to the age of the person
manuumitted, and nature of the master's ownership, or the mode of
manumission, in accordance with the earlier usage; with the addition of
many new modes in which freedom coupled with the Roman citizenship, the
only kind of freedom now known may be bestowed on slaves.




TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR
INCAPACITY

In some cases, however, manumission is not permitted; for an owner who
would defraud his creditors by an intended manumission attempts in vain
to manumit, the act being made of no effect by the lex Aelia Sentia.

1 A master, however, who is insolvent may institute one of his slaves
heir in his will, conferring freedom on him at the same time, so that
he may become free and his sole and necessary heir, provided no one else
takes as heir under the will, either because no one else was instituted
at all, or because the person instituted for some reason or other does
not take the inheritance. And this was a judicious provision of the
lex Aelia Sentia, for it was most desirable that persons in embarrassed
circumstances, who could get no other heir, should have a slave as
necessary heir to satisfy their creditors' claims, or that at least (if
he did not do this) the creditors might sell the estate in the slave's
name, so as to save the memory of the deceased from disrepute.

2 The law is the same if a slave be instituted heir without liberty
being expressly given him, this being enacted by our constitution in
all cases, and not merely where the master is insolvent; so that in
accordance with the modern spirit of humanity, institution will be
equivalent to a gift of liberty; for it is unlikely, in spite of the
omission of the grant of freedom, that one should have wished the person
whom one has chosen as one's heir to remain a slave, so that one should
have no heir at all.

3 If a person is insolvent at the time of a manumission, or becomes so
by the manumission itself, this is manumission in fraud of creditors.
It is, however, now settled law, that the gift of liberty is not avoided
unless the intention of the manumitter was fraudulent, even though his
property is in fact insufficient to meet his creditors' claims; for men
often hope and believe that they are better off than they really are.
Consequently, we understand a gift of liberty to be avoided only when
the creditors are defrauded both by the intention of the manumitter,
and in fact: that is to say, by his property being insufficient to meet
their claims.

4 The same lex Aelia Sentia makes it unlawful for a master under twenty
years of age to manumit, except in the mode of fictitious vindication,
preceded by proof of some legitimate motive before the council.

5 It is a legitimate motive of manumission if the slave to be manumitted
be, for instance, the father or mother of the manumitter, or his son
or daughter, or his natural brother or sister, or governor or nurse or
teacher, or fosterson or fosterdaughter or fosterbrother, or a slave
whom he wishes to make his agent, or a female slave whom he intends to
marry; provided he marry her within six months, and provided that the
slave intended as an agent is not less than seventeen years of age at
the time of manumission.

6 When a motive for manumission, whether true or false, has once been
proved, the council cannot withdraw its sanction.

7 Thus the lex Aelia Sentia having prescribed a certain mode of
manumission for owners under twenty, it followed that though a person
fourteen years of age could make a will, and therein institute an heir
and leave legacies, yet he could not confer liberty on a slave until he
had completed his twentieth year. But it seemed an intolerable hardship
that a man who had the power of disposing freely of all his property
by will should not be allowed to give his freedom to a single slave:
wherefore we allow him to deal in his last will as he pleases with his
slaves as with the rest of his property, and even to give them their
liberty if he will. But liberty being a boon beyond price, for which
very reason the power of manumission was denied by the older law to
owners under twenty years of age, we have as it were selected a middle
course, and permitted persons under twenty years of age to manumit their
slaves by will, but not until they have completed their seventeenth
and entered on their eighteenth year. For when ancient custom allowed
persons of this age to plead on behalf of others, why should not their
judgement be deemed sound enough to enable them to use discretion in
giving freedom to their own slaves?




TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA

Moreover, by the lex Fufia Caninia a limit was placed on the number of
slaves who could be manumitted by their master's testament: but this
law we have thought fit to repeal, as an obstacle to freedom and to some
extent invidious, for it was certainly inhuman to take away from a man
on his deathbed the right of liberating the whole of his slaves, which
he could have exercised at any moment during his lifetime, unless there
were some other obstacle to the act of manumission.




TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT

Another division of the law relating to persons classifies them as
either independent or dependent. Those again who are dependent are in
the power either of parents or of masters. Let us first then consider
those who are dependent, for by learning who these are we shall at the
same time learn who are independent. And first let us look at those who
are in the power of masters.

1 Now slaves are in the power of masters, a power recognised by the
law of all nations, for all nations present the spectacle of masters
invested with power of life and death over slaves; and to whatever is
acquired through a slave his owner is entitled.

2 But in the present day no one under our sway is permitted to
indulge in excessive harshness towards his slaves, without some reason
recognised by law; for, by a constitution of the Emperor Antoninus Pius,
a man is made as liable to punishment for killing his own slave as for
killing the slave of another person; and extreme severity on the part of
masters is checked by another constitution whereby the same Emperor, in
answer to inquiries from presidents of provinces concerning slaves who
take refuge at churches or statues of the Emperor, commanded that on
proof of intolerable cruelty a master should be compelled to sell his
slaves on fair terms, so as to receive their value. And both of these
are reasonable enactments, for the public interest requires that no one
should make an evil use of his own property. The terms of the rescript
of Antoninus to Aelius Marcianus are as follow:--'The powers of masters
over their slaves ought to continue undiminished, nor ought any man to
be deprived of his lawful rights; but it is the master's own interest
that relief justly sought against cruelty, insufficient sustenance, or
intolerable wrong, should not be denied. I enjoin you then to look
into the complaints of the slaves of Iulius Sabinus, who have fled for
protection to the statue of the Emperor, and if you find them treated
with undue harshness or other ignominious wrong, order them to be sold,
so that they may not again fall under the power of their master; and the
latter will find that if he attempts to evade this my enactment, I shall
visit his offence with severe punishment.'




TITLE IX. OF PATERNAL POWER

Our children whom we have begotten in lawful wedlock are in our power.

1 Wedlock or matrimony is the union of male and female, involving the
habitual intercourse of daily life.

2 The power which we have over our children is peculiar to Roman
citizens, and is found in no other nation.

3 The offspring then of you and your wife is in your power, and so too
is that of your son and his wife, that is to say, your grandson and
granddaughter, and so on. But the offspring of your daughter is not in
your power, but in that of its own father.




TITLE X. OF MARRIAGE

Roman citizens are joined together in lawful wedlock when they are
united according to law, the man having reached years of puberty, and
the woman being of a marriageable age, whether they be independent or
dependent: provided that, in the latter case, they must have the consent
of the parents in whose power they respectively are, the necessity of
which, and even of its being given before the marriage takes place, is
recognised no less by natural reason than by law. Hence the question has
arisen, can the daughter or son of a lunatic lawfully contract marriage?
and as the doubt still remained with regard to the son, we decided that,
like the daughter, the son of a lunatic might marry even without the
intervention of his father, according to the mode prescribed by our
constitution.

1 It is not every woman that can be taken to wife: for marriage with
certain classes of persons is forbidden. Thus, persons related as
ascendant and descendant are incapable of lawfully intermarrying; for
instance, father and daughter, grandfather and granddaughter, mother and
son, grandmother and grandson, and so on ad infinitum; and the union of
such persons is called criminal and incestuous. And so absolute is
the rule, that persons related as ascendant and descendant merely by
adoption are so utterly prohibited from intermarriage that dissolution
of the adoption does not dissolve the prohibition: so that an
adoptive daughter or granddaughter cannot be taken to wife even after
emancipation.

2 Collateral relations also are subject to similar prohibitions, but
not so stringent. Brother and sister indeed are prohibited from
intermarriage, whether they are both of the same father and mother, or
have only one parent in common: but though an adoptive sister cannot,
during the subsistence of the adoption, become a man's wife, yet if the
adoption is dissolved by her emancipation, or if the man is emancipated,
there is no impediment to their intermarriage. Consequently, if a man
wished to adopt his son-in-law, he ought first to emancipate his
daughter: and if he wished to adopt his daughter-in-law, he ought first to
emancipate his son.

3 A man may not marry his brother's or his sister's daughter, or even
his or her granddaughter, though she is in the fourth degree; for when
we may not marry a person's daughter, we may not marry the granddaughter
either. But there seems to be no obstacle to a man's marrying the
daughter of a woman whom his father has adopted, for she is no relation
of his by either natural or civil law.

4 The children of two brothers or sisters, or of a brother and sister,
may lawfully intermarry.

5 Again, a man may not marry his father's sister, even though the tie
be merely adoptive, or his mother's sister: for they are considered to
stand in the relation of ascendants. For the same reason too a man may
not marry his great-aunt either paternal or maternal.

6 Certain marriages again are prohibited on the ground of affinity, or
the tie between a man or his wife and the kin of the other respectively.
For instance, a man may not marry his wife's daughter or his son's wife,
for both are to him in the position of daughters. By wife's daughter
or son's wife we must be understood to mean persons who have been thus
related to us; for if a woman is still your daughterinlaw, that is,
still married to your son, you cannot marry her for another reason,
namely, because she cannot be the wife of two persons at once. So too
if a woman is still your stepdaughter, that is, if her mother is still
married to you, you cannot marry her for the same reason, namely,
because a man cannot have two wives at the same time.

7 Again, it is forbidden for a man to marry his wife's mother or his
father's wife, because to him they are in the position of a mother,
though in this case too our statement applies only after the
relationship has finally terminated; otherwise, if a woman is still your
stepmother, that is, is married to your father, the common rule of law
prevents her from marrying you, because a woman cannot have two husbands
at the same time: and if she is still your wife's mother, that is, if
her daughter is still married to you, you cannot marry her because you
cannot have two wives at the same time.

8 But a son of the husband by another wife, and a daughter of the wife
by another husband, and vice versa, can lawfully intermarry, even though
they have a brother or sister born of the second marriage.

9 If a woman who has been divorced from you has a daughter by a second
husband, she is not your stepdaughter, but Iulian is of opinion that you
ought not to marry her, on the ground that though your son's betrothed
is not your daughterinlaw, nor your father's betrothed you stepmother,
yet it is more decent and more in accordance with what is right to
abstain from intermarrying with them.

10 It is certain that the rules relating to the prohibited degrees of
marriage apply to slaves: supposing, for instance, that a father and
daughter, or a brother and sister, acquired freedom by manumission.

11 There are also other persons who for various reasons are forbidden to
intermarry, a list of whom we have permitted to be inserted in the books
of the Digest or Pandects collected from the older law.

12 Alliances which infringe the rules here stated do not confer the
status of husband and wife, nor is there in such case either wedlock or
marriage or dowry. Consequently children born of such a connexion
are not in their father's power, but as regards the latter are in
the position of children born of promiscuous intercourse, who, their
paternity being uncertain, are deemed to have no father at all, and
who are called bastards, either from the Greek word denoting illicit
intercourse, or because they are fatherless. Consequently, on the
dissolution of such a connexion there can be no claim for return of
dowry. Persons who contract prohibited marriages are subjected to
penalties set forth in our sacred constitutions.

13 Sometimes it happens that children who are not born in their father's
power are subsequently brought under it. Such for instance is the case
of a natural son made subject to his father's power by being inscribed a
member of the curia; and so too is that of a child of a free woman with
whom his father cohabited, though he could have lawfully married her,
who is subjected to the power of his father by the subsequent execution
of a dowry deed according to the terms of our constitution: and the same
boon is in effect bestowed by that enactment on children subsequently
born of the same marriage.




TITLE XI. OF ADOPTIONS

Not only natural children are subject, as we said, to paternal power,
but also adoptive children.

1 Adoption is of two forms, being effected either by rescript of the
Emperor, or by the judicial authority of a magistrate. The first is the
mode in which we adopt independent persons, and this form of adoption
is called adrogation: the second is the mode in which we adopt a person
subject to the power of an ascendant, whether a descendant in the first
degree, as a son or daughter, or in a remoter degree, as a grandson,
granddaughter, great-grandson, or great-granddaughter.

2 But by the law, as now settled by our constitution, when a child in
power is given in adoption to a stranger by his natural father, the
power of the latter is not extinguished; no right passes to the adoptive
father, nor is the person adopted in his power, though we have given a
right of succession in case of the adoptive father dying intestate.
But if the person to whom the child is given in adoption by its natural
father is not a stranger, but the child's own maternal grandfather, or,
supposing the father to have been emancipated, its paternal grandfather,
or its great-grandfather paternal or maternal, in this case, because the
rights given by nature and those given by adoption are vested in one
and the same person, the old power of the adoptive father is left
unimpaired, the strength of the natural bond of blood being augmented by
the civil one of adoption, so that the child is in the family and
power of an adoptive father, between whom and himself there existed
antecedently the relationship described.

3 When a child under the age of puberty is adopted by rescript of
the Emperor, the adrogation is only permitted after cause shown, the
goodness of the motive and the expediency of the step for the pupil
being inquired into. The adrogation is also made under certain
conditions; that is to say, the adrogator has to give security to a
public agent or attorney of the people, that if the pupil should die
within the age of puberty, he will return his property to the persons
who would have succeeded him had no adoption taken place. The adoptive
father again may not emancipate them unless upon inquiry they are found
deserving of emancipation, or without restoring them their property.
Finally, if he disinherits him at death, or emancipates him in his
lifetime without just cause, he is obliged to leave him a fourth of
his own property, besides that which he brought him when adopted, or by
subsequent acquisition.

4 It is settled that a man cannot adopt another person older than
himself, for adoption imitates nature, and it would be unnatural for a
son to be older than his father. Consequently a man who desires either
to adopt or to adrogate a son ought to be older than the latter by the
full term of puberty, or eighteen years.

5 A man may adopt a person as grandson or granddaughter, or as
great-grandson or great-granddaughter, and so on, without having a son at
all himself; 6 and similarly he may adopt another man's son as grandson,
or another man's grandson as son.

7 If he wishes to adopt some one as grandson, whether as the son of an
adoptive son of his own, or of a natural son who is in his power, the
consent of this son ought to be obtained, lest a family heir be thrust
upon him against his will: but on the other hand, if a grandfather
wishes to give a grandson by a son in adoption to some one else, the
son's consent is not requisite.

8 An adoptive child is in most respects in the same position, as regards
the father, as a natural child born in lawful wedlock. Consequently
a man can give in adoption to another a person whom he has adopted by
imperial rescript, or before the praetor or governor of a province,
provided that in this latter case he was not a stranger (i.e. was a
natural descendant) before he adopted him himself.

9 Both forms of adoption agree in this point, that persons incapable
of procreation by natural impotence are permitted to adopt, whereas
castrated persons are not allowed to do so.

10 Again, women cannot adopt, for even their natural children are not
subject to their power; but by the imperial clemency they are enabled to
adopt, to comfort them for the loss of children who have been taken from
them.

11 It is peculiar to adoption by imperial rescript, that children in the
power of the person adrogated, as well as their father, fall under the
power of the adrogator, assuming the position of grandchildren. Thus
Augustus did not adopt Tiberius until Tiberius had adopted Germanicus,
in order that the latter might become his own grandson directly the
second adoption was made.

12 The old writers record a judicious opinion contained in the writings
of Cato, that the adoption of a slave by his master is equivalent to
manumission. In accordance with this we have in our wisdom ruled by a
constitution that a slave to whom his master gives the title of son by
the solemn form of a record is thereby made free, although this is not
sufficient to confer on him the rights of a son.




TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED

Let us now examine the modes in which persons dependent on a superior
become independent. How slaves are freed from the power of their
masters can be gathered from what has already been said respecting their
manumission. Children under paternal power become independent at the
parent's death, subject, however, to the following distinction.
The death of a father always releases his sons and daughters from
dependence; the death of a grandfather releases his grandchildren from
dependence only provided that it does not subject them to the power of
their father. Thus, if at the death of the grandfather the father is
alive and in his power, the grandchildren, after the grandfather's
death, are in the power of the father; but if at the time of the
grandfather's death the father is dead, or not subject to the
grandfather, the grandchildren will not fall under his power, but become
independent.

1 As deportation to an island for some penal offence entails loss of
citizenship, such removal of a man from the list of Roman citizens has,
like his death, the effect of liberating his children from his power;
and conversely, the deportation of a person subject to paternal power
terminates the power of the parent. In either case, however, if the
condemned person is pardoned by the grace of the Emperor, he recovers
all his former rights.

2 Relegation to an island does not extinguish paternal power, whether it
is the parent or the child who is relegated.

3 Again, a father's power is extinguished by his becoming a 'slave of
punishment,' for instance, by being condemned to the mines or exposed to
wild beasts.

4 A person in paternal power does not become independent by entering
the army or becoming a senator, for military service or consular
dignity does not set a son free from the power of his father. But by
our constitution the supreme dignity of the patriciate frees a son from
power immediately on the receipt of the imperial patent; for who would
allow anything so unreasonable as that, while a father is able by
emancipation to release his son from the tie of his power, the imperial
majesty should be unable to release from dependence on another the man
whom it has selected as a father of the State? 5 Again, capture of the
father by the enemy makes him a slave of the latter; but the status
of his children is suspended by his right of subsequent restoration by
postliminium; for on escape from captivity a man recovers all his former
rights, and among them the right of paternal power over his children,
the law of postliminium resting on a fiction that the captive has never
been absent from the state. But if he dies in captivity the son is
reckoned to have been independent from the moment of his father's
capture. So too, if a son or a grandson is captured by the enemy, the
power of his ascendant is provisionally suspended, though he may again
be subjected to it by postliminium. This term is derived from 'limen'
and 'post,' which explains why we say that the person who has been
captured by the enemy and has come back into our territories has
returned by postliminium: for just as the threshold forms the boundary
of a house, so the ancients represented the boundaries of the empire as
a threshold; and this is also the origin of the term 'limes, signifying
a kind of end and limit. Thus postliminium means that the captive
returns by the same threshold at which he was lost. A captive who is
recovered after a victory over the enemy is deemed to have returned by
postliminium.

6 Emancipation also liberates children from the power of the parent.
Formerly it was effected either by the observance of an old form
prescribed by statute by which the son was fictitiously sold and then
manumitted, or by imperial rescript. Our forethought, however, has
amended this by a constitution, which has abolished the old fictitious
form, and enabled parents to go directly to a competent judge or
magistrate, and in his presence release their sons or daughters,
grandsons or granddaughters, and so on, from their power. After this,
the father has by the praetor's edict the same rights over the property
of the emancipated child as a patron has over the property of his
freedman: and if at the time of emancipation the child, whether son or
daughter, or in some remoter degree of relationship, is beneath the age
of puberty, the father becomes by the emancipation his or her guardian.

7 It is to be noted, however, that a grandfather who has both a son,
and by that son a grandson or granddaughter, in his power, may either
release the son from his power and retain the grandson or granddaughter,
or emancipate both together; and a great-grandfather has the same
latitude of choice.

8 Again, if a father gives a son whom he has in his power in adoption
to the son's natural grandfather or great-grandfather, in accordance
with our constitution on this subject, that is to say, by declaring
his intention, before a judge with jurisdiction in the matter, in the
official records, and in the presence and with the consent of the person
adopted, the natural father's power is thereby extinguished, and passes
to the adoptive father, adoption by whom under these circumstances
retains, as we said, all its old legal consequences.

9 It is to be noted, that if your daughterinlaw conceives by your son,
and you emancipate or give the latter in adoption during her pregnancy,
the child when born will be in your power; but if the child is conceived
after its father's emancipation or adoption, it is in the power of its
natural father or its adoptive grandfather, as the case may be.

10 Children, whether natural or adoptive, are only very rarely able to
compel their parent to release them from his power.




TITLE XIII. OF GUARDIANSHIPS

Let us now pass on to another classification of persons. Persons
not subject to power may still be subject either to guardians or to
curators, or may be exempt from both forms of control. We will first
examine what persons are subject to guardians and curators, and thus
we shall know who are exempt from both kinds of control. And first of
persons subject to guardianship or tutelage.

1 Guardianship, as defined by Servius, is authority and control over a
free person, given and allowed by the civil law, in order to protect one
too young to defend himself:

2 and guardians are those persons who possess this authority and
control, their name being derived from their very functions; for they
are called guardians as being protectors and defenders, just as those
entrusted with the care of sacred buildings are called 'aeditui.'

3 The law allows a parent to appoint guardians in his will for those
children in his power who have not attained the age of puberty, without
distinction between sons and daughters; but a grandson or granddaughter
can receive a testamentary guardian only provided that the death of the
testator does not bring them under the power of their own father.
Thus, if your son is in your power at the time of your death, your
grandchildren by him cannot have a guardian given them by your will,
although they are in your power, because your death leaves them in the
power of their father.

4 And as in many other matters afterborn children are treated on the
footing of children born before the execution of the will, so it is
ruled that afterborn children, as well as children born before the will
was made, may have guardians therein appointed to them, provided that
if born in the testator's lifetime they would be family heirs and in his
power.

5 If a testamentary guardian be given by a father to his emancipated
son, he must be approved by the governor in all cases, though inquiry
into the case is unnecessary.




TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL

1 Persons who are in the power of others may be appointed testamentary
guardians no less than those who are independent; and a man can also
validly appoint one of his own slaves as testamentary guardian, giving
him at the same time his liberty; and even in the absence of express
manumission his freedom is to be presumed to have been tacitly conferred
on him, whereby his appointment becomes a valid act, although of course
it is otherwise if the testator appointed him guardian in the erroneous
belief that he was free. The appointment of another man's slave as
guardian, without any addition or qualification, is void, though valid
if the words 'when he shall be free' are added: but this latter form is
ineffectual if the slave is the testator's own, the appointment being
void from the beginning.

2 If a lunatic or minor is appointed testamentary guardian, he cannot
act until, if a lunatic, he recovers his faculties, and, if a minor, he
attains the age of twentyfive years.

3 There is no doubt that a guardian may be appointed for and from a
certain time, or conditionally, or before the institution of the heir.

4 A guardian cannot, however, be appointed for a particular matter or
business, because his duties relate to the person, and not merely to a
particular business or matter.

5 If a man appoints a guardian to his sons or daughters, he is held to
have intended them also for such as may be afterborn, for the latter
are included in the terms son and daughter. In the case of grandsons,
a question may arise whether they are implicitly included in an
appointment of guardians to sons; to which we reply, that they are
included in an appointment of guardians if the term used is 'children,'
but not if it is 'sons': for the words son and grandson have quite
different meanings. Of course an appointment to afterborn children
includes all children, and not sons only.




TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES

In default of a testamentary guardian, the statute of the Twelve Tables
assigns the guardianship to the nearest agnates, who are hence called
statutory guardians.

1 Agnates are persons related to one another by males, that is, through
their male ascendants; for instance, a brother by the same father, a
brother's son, or such son's son, a father's brother, his son or son's
son. But persons related only by blood through females are not agnates,
but merely cognates. Thus the son of your father's sister is no agnate
of yours, but merely your cognate, and vice versa; for children are
member's of their father's family, and not of your mother's.

2 It was said that the statute confers the guardianship, in case
of intestacy, on the nearest agnates; but by intestacy here must be
understood not only complete intestacy of a person having power to
appoint a testamentary guardian, but also the mere omission to make
such appointment, and also the case of a person appointed testamentary
guardian dying in the testator's lifetime.

3 Loss of status of any kind ordinarily extinguishes rights by agnation,
for agnation is a title of civil law. Not every kind of loss of status,
however, affects rights by cognation; because civil changes cannot
affect rights annexed to a natural title to the same extent that they
can affect those annexed to a civil one.




TITLE XVI. OF LOSS OF STATUS

Loss of status, or change in one's previous civil rights, is of three
orders, greatest, minor or intermediate, and least.

1 The greatest loss of status is the simultaneous loss of citizenship
and freedom, exemplified in those persons who by a terrible sentence are
made 'slaves of punishment,' in freedmen condemned for ingratitude to
their patrons, and in those who allow themselves to be sold in order to
share the purchase money when paid.

2 Minor or intermediate loss of status is loss of citizenship
unaccompanied by loss of liberty, and is incident to interdiction of
fire and water and to deportation to an island.

3 The least loss of status occurs when citizenship and freedom are
retained, but a man's domestic position is altered, and is exemplified
by adrogation and emancipation.

4 A slave does not suffer loss of status by being manumitted, for while
a slave he had no civil rights:

5 and where the change is one of dignity, rather than of civil rights,
there is no loss of status; thus it is no loss of status to be removed
from the senate.

6 When it was said that rights by cognation are not affected by loss of
status, only the least loss of status was meant; by the greatest loss
of status they are destroyed--for instance, by a cognate's becoming
a slave--and are not recovered even by subsequent manumission. Again,
deportation to an island, which entails minor or intermediate loss of
status, destroys rights by cognation.

7 When agnates are entitled to be guardians, it is not all who are so
entitled, but only those of the nearest degree, though if all are in the
same degree, all are entitled.




TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS

The same statute of the Twelve Tables assigns the guardianship of
freedmen and freedwomen to the patron and his children, and this
guardianship, like that of agnates, is called statutory guardianship;
not that it is anywhere expressly enacted in that statute, but because
its interpretation by the jurists has procured for it as much reception
as it could have obtained from express enactment: the fact that the
inheritance of a freedman or freedwoman, when they die intestate, was
given by the statute to the patron and his children, being deemed a
proof that they were intended to have the guardianship also, partly
because in dealing with agnates the statute coupled guardianship with
succession, and partly on the principle that where the advantage of
the succession is, there, as a rule, ought too to be the burden of the
guardianship. We say 'as a rule,' because if a slave below the age of
puberty is manumitted by a woman, though she is entitled, as patroness,
to the succession, another person is guardian.




TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS

The analogy of the patron guardian led to another kind of socalled
statutory guardianship, namely that of a parent over a son or daughter,
or a grandson or granddaughter by a son, or any other descendant through
males, whom he emancipates below the age of puberty: in which case he
will be statutory guardian.




TITLE XIX. OF FIDUCIARY GUARDIANSHIP

There is another kind of guardianship known as fiduciary guardianship,
which arises in the following manner. If a parent emancipates a son or
daughter, a grandson or granddaughter, or other descendant while under
the age of puberty, he becomes their statutory guardian: but if at his
death he leaves male children, they become fiduciary guardians of their
own sons, or brothers and sisters, or other relatives who had been thus
emancipated. But on the decease of a patron who is statutory guardian
his children become statutory guardians also; for a son of a deceased
person, supposing him not to have been emancipated during his father's
lifetime, becomes independent at the latter's death, and does not
fall under the power of his brothers, nor, consequently, under their
guardianship; whereas a freedman, had he remained a slave, would at
his master's death have become the slave of the latter's children. The
guardianship, however, is not cast on these persons unless they are of
full age, which indeed has been made a general rule in guardianship and
curatorship of every kind by our constitution.




TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA
ET TITIA

Failing every other kind of guardian, at Rome one used to be appointed
under the lex Atilia by the praetor of the city and the majority of the
tribunes of the people; in the provinces one was appointed under the lex
Iulia et Titia by the president of the province.

1 Again, on the appointment of a testamentary guardian subject to a
condition, or on an appointment limited to take effect after a certain
time, a substitute could be appointed under these statutes during the
pendency of the condition, or until the expiration of the term: and
even if no condition was attached to the appointment of a testamentary
guardian, a temporary guardian could be obtained under these statutes
until the succession had vested. In all these cases the office of the
guardian so appointed determined as soon as the condition was fulfilled,
or the term expired, or the succession vested in the heir.

2 On the capture of a guardian by the enemy, the same statutes regulated
the appointment of a substitute, who continued in office until the
return of the captive; for if he returned, he recovered the guardianship
by the law of postliminium.

3 But guardians have now ceased to be appointed under these statutes,
the place of the magistrates directed by them to appoint being taken,
first, by the consuls, who began to appoint guardians to pupils of
either sex after inquiry into the case, and then by the praetors, who
were substituted for the consuls by the imperial constitutions; for
these statutes contained no provisions as to security to be taken from
guardians for the safety of their pupils' property, or compelling them
to accept the office in case of disinclination.

4 Under the present law, guardians are appointed at Rome by the
prefect of the city, and by the praetor when the case falls within his
jurisdiction; in the provinces they are appointed, after inquiry, by
the governor, or by inferior magistrates at the latter's behest if the
pupil's property is of no great value.

5 By our constitution, however, we have done away with all difficulties
of this kind relating to the appointing person, and dispensed with the
necessity of waiting for an order from the governor, by enacting that if
the property of the pupil or adult does not exceed five hundred solidi,
guardians or curators shall be appointed by the officers known as
defenders of the city, along with the holy bishop of the place, or in
the presence of other public persons, or by the magistrates, or by the
judge of the city of Alexandria; security being given in the amounts
required by the constitution, and those who take it being responsible if
it be insufficient.

6 The wardship of children below the age of puberty is in accordance
with the law of nature, which prescribes that persons of immature years
shall be under another's guidance and control.

7 As guardians have the management of their pupils' business, they are
liable to be sued on account of their administration as soon as the
pupil attains the age of puberty.




TITLE XXI. OF THE AUTHORITY OF GUARDIANS

In some cases a pupil cannot lawfully act without the authority of
his guardian, in others he can. Such authority, for instance, is not
necessary when a pupil stipulates for the delivery of property, though
it is otherwise where he is the promisor; for it is an established rule
that the guardian's authority is not necessary for any act by which the
pupil simply improves his own position, though it cannot be dispensed
with where he proposes to make it worse. Consequently, unless the
guardian authorizes all transactions generating bilateral obligations,
such as sale, hire, agency, and deposit, the pupil is not bound,
though he can compel the other contracting party to discharge his own
obligation.

1 Pupils, however, require their guardian's authority before they can
enter on an inheritance, demand the possession of goods, or accept an
inheritance by way of trust, even though such act be advantageous to
them, and involves no chance of loss.

2 If the guardian thinks the transaction will be beneficial to his
pupil, his authority should be given presently and on the spot.
Subsequent ratification, or authority given by letter, has no effect.

3 In case of a suit between guardian and pupil, as the former cannot
lawfully authorize an act in which he is personally concerned or
interested, a curator is now appointed, in lieu of the old praetorian
guardian, with whose cooperation the suit is carried on, his office
determining as soon as it is decided.




TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED

Pupils of either sex are freed from guardianship when they reach the age
of puberty, which the ancients were inclined to determine, in the
case of males, not only by age, but also by reference to the physical
development of individuals. Our majesty, however, has deemed it not
unworthy of the purity of our times to apply in the case of males also
the moral considerations which, even among the ancients, forbade in the
case of females as indecent the inspection of the person. Consequently
by the promulgation of our sacred constitution we have enacted that
puberty in males shall be considered to commence immediately on
the completion of the fourteenth year, leaving unaltered the rule
judiciously laid down by the ancients as to females, according to which
they are held fit for marriage after completing their twelfth year.

1 Again, tutelage is terminated by adrogation or deportation of the
pupil before he attains the age of puberty, or by his being reduced to
slavery or taken captive by the enemy.

2 So too if a testamentary guardian be appointed to hold office until
the occurrence of a condition, on this occurrence his office determines.

3 Similarly tutelage is terminated by the death either of pupil or of
guardian.

4 If a guardian suffers such a loss of status as entails loss of either
liberty or citizenship, his office thereby completely determines. It is,
however, only the statutory kind of guardianship which is destroyed by
a guardian's undergoing the least loss of status, for instance, by his
giving himself in adoption. Tutelage is in every case put an end to by
the pupil's suffering loss of status, even of the lowest order.

5 Testamentary guardians appointed to serve until a certain time lay
down their office when that time arrives.

6 Finally, persons cease to be guardians who are removed from their
office on suspicion, or who are enabled to lay down the burden of
the tutelage by a reasonable ground of excuse, according to the rules
presently stated.




TITLE XXIII. OF CURATORS

Males, even after puberty, and females after reaching marriageable
years, receive curators until completing their twenty-fifth year,
because, though past the age fixed by law as the time of puberty, they
are not yet old enough to administer their own affairs.

1 Curators are appointed by the same magistrates who appoint guardians.
They cannot legally be appointed by will, though such appointment, if
made, is usually confirmed by an order of the praetor or governor of the
province.

2 A person who has reached the age of puberty cannot be compelled
to have a curator, except for the purpose of conducting a suit: for
curators, unlike guardians, can be appointed for a particular matter.

3 Lunatics and prodigals, even though more than twentyfive years of age,
are by the statute of the Twelve Tables placed under their agnates as
curators; but now, as a rule, curators are appointed for them at Rome
by the prefect of the city or praetor, and in the provinces by the
governor, after inquiry into the case.

4 Curators should also be given to persons of weak mind, to the deaf,
the dumb, and those suffering from chronic disease, because they are not
competent to manage their own affairs.

5 Sometimes even pupils have curators, as, for instance, when a
statutory guardian is unfit for his office: for if a pupil already has
one guardian, he cannot have another given him. Again, if a testamentary
guardian, or one appointed by the praetor or governor, is not a good man
of business, though perfectly honest in his management of the pupil's
affairs, it is usual for a curator to be appointed to act with
him. Again, curators are usually appointed in the room of guardians
temporarily excused from the duties of their office.

6 If a guardian is prevented from managing his pupil's affairs by
illhealth or other unavoidable cause, and the pupil is absent or an
infant, the praetor or governor of the province will, at the guardian's
risk, appoint by decree a person selected by the latter to act as agent
of the pupil.




TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS

To prevent the property of pupils and of persons under curators from
being wasted or diminished by their curators or guardians the
praetor provides for security being given by the latter against
maladministration. This rule, however, is not without exceptions, for
testamentary guardians are not obliged to give security, the testator
having had full opportunities of personally testing their fidelity
and carefulness, and guardians and curators appointed upon inquiry are
similarly exempted, because they have been expressly chosen as the best
men for the place.

1 If two or more are appointed by testament, or by a magistrate upon
inquiry, any one of them may offer security for indemnifying the pupil
or person to whom he is curator against loss, and be preferred to his
colleague, in order that he may either obtain the sole administration,
or else induce his colleague to offer larger security than himself, and
so become sole administrator by preference. Thus he cannot directly call
upon his colleague to give security; he ought to offer it himself, and
so give his colleague the option of receiving security on the one hand,
or of giving it on the other. If none of them offer security, and the
testator left directions as to which was to administer the property,
this person must undertake it: in default of this, the office is cast
by the praetor's edict on the person whom the majority of guardians or
curators shall choose. If they cannot agree, the praetor must interpose.
The same rule, authorizing a majority to elect one to administer the
property, is to be applied where several are appointed after inquiry by
a magistrate.

2 It is to be noted that, besides the liability of guardians and
curators to their pupils, or the persons for whom they act, for the
management of their property, there is a subsidiary action against the
magistrate accepting the security, which may be resorted to where
all other remedies prove inadequate, and which lies against those
magistrates who have either altogether omitted to take security from
guardians or curators, or taken it to an insufficient amount. According
to the doctrines stated by the jurists, as well as by imperial
constitutions, this action may be brought against the magistrate's heirs
as well as against him personally;

3 and these same constitutions ordain that guardians or curators who
make default in giving security may be compelled to do so by legal
distraint of their goods.

4 This action, however, will not lie against the prefect of the city,
the praetor, or the governor of a province, or any other magistrate
authorized to appoint guardians, but only against those to whose usual
duties the taking of security belongs.




TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION

There are various grounds on which persons are exempted from serving the
office of guardian or curator, of which the most common is their having
a certain number of children, whether in power or emancipated. If, that
is to say, a man has, in Rome, three children living, in Italy four, or
in the provinces five, he may claim exemption from these, as from other
public offices; for it is settled that the office of a guardian or
curator is a public one. Adopted children cannot be reckoned for this
purpose, though natural children given in adoption to others may:
similarly grandchildren by a son may be reckoned, so as to represent
their father, while those by a daughter may not. It is, however, only
living children who avail to excuse their fathers from serving as
guardian or curator; such as have died are of no account, though the
question has arisen whether this rule does not admit of an exception
where they have died in war; and it is agreed that this is so, but only
where they have fallen on the field of battle: for these, because they
have died for their country, are deemed to live eternally in fame.

1 The Emperor Marcus, too, replied by rescript, as is recorded in his
Semestria, that employment in the service of the Treasury is a valid
excuse from serving as guardian or curator so long as that employment
lasts.

2 Again, those are excused from these offices who are absent in the
service of the state; and a person already guardian or curator who has
to absent himself on public business is excused from acting in either of
these capacities during such absence, a curator being appointed to act
temporarily in his stead. On his return, he has to resume the burden
of tutelage, without being entitled to claim a year's exemption, as has
been settled since the opinion of Papinian was delivered in the fifth
book of his replies; for the year's exemption or vacation belongs only
to such as are called to a new tutelage.

3 By a rescript of the Emperor Marcus persons holding any magistracy may
plead this as a ground of exemption, though it will not enable them to
resign an office of this kind already entered upon.

4 No guardian or curator can excuse himself on the ground of an action
pending between himself and his ward, unless it relates to the latter's
whole estate or to an inheritance.

5 Again, a man who is already guardian or curator to three persons
without having sought after the office is entitled to exemption from
further burdens of the kind so long as he is actually engaged with
these, provided that the joint guardianship of several pupils, or
administration of an undivided estate, as where the wards are brothers,
is reckoned as one only.

6 If a man can prove that through poverty he is unequal to the burden of
the office, this, according to rescripts of the imperial brothers and of
the Emperor Marcus, is a valid ground of excuse.

7 Illhealth again is a sufficient excuse if it be such as to prevent a
man from attending to even his own affairs:

8 and the Emperor Pius decided by a rescript that persons unable to read
ought to be excused, though even these are not incapable of transacting
business.

9 A man too is at once excused if he can show that a father has
appointed him testamentary guardian out of enmity, while conversely no
one can in any case claim exemption who promised the ward's father that
he would act as guardian to them:

10 and it was settled by a rescript of M. Aurelius and L. Verus that the
allegation that one was unacquainted with the pupil's father cannot be
admitted as a ground of excuse.

11 Enmity against the ward's father, if extremely bitter, and if there
was no reconciliation, is usually accepted as a reason for exemption
from the office of guardian;

12 and similarly a person can claim to be excused whose status or civil
rights have been disputed by the father of the ward in an action.

13 Again, a person over seventy years of age can claim to be excused
from acting as guardian or curator, and by the older law persons less
than twentyfive were similarly exempted. But our constitution, having
forbidden the latter to aspire to these functions, has made excuses
unnecessary. The effect of this enactment is that no pupil or
person under twentyfive years of age is to be called to a statutory
guardianship; for it was most incongruous to place persons under the
guardianship or administration of those who are known themselves to need
assistance in the management of their own affairs, and are themselves
governed by others.

14 The same rule is to be observed with soldiers, who, even though they
desire it, may not be admitted to the office of guardian:

15 and finally grammarians, rhetoricians, and physicians at Rome, and
those who follow these callings in their own country and are within the
number fixed by law, are exempted from being guardians or curators.

16 If a person who has several grounds of excuse wishes to obtain
exemption, and some of them are not allowed, he is not prohibited from
alleging others, provided he does this within the time prescribed. Those
desirous of excusing themselves do not appeal, but ought to allege
their grounds of excuse within fifty days next after they hear of their
appointment, whatever the form of the latter, and whatever kind of
guardians they may be, if they are within a hundred miles of the place
where they were appointed: if they live at a distance of more than a
hundred miles, they are allowed a day for every twenty miles, and thirty
days in addition, but this time, as Scaevola has said, must never be so
reckoned as to amount to less than fifty days.

17 A person appointed guardian is deemed to be appointed to the whole
patrimony;

18 and after he has once acted as guardian he cannot be compelled
against his will to become the same person's curator--not even if the
father who appointed him testamentary guardian added in the will that
he made him curator, too, as soon as the ward reached fourteen years of
age--this having been decided by a rescript of the Emperors Severus and
Antoninus.

19 Another rescript of the same emperors settled that a man is
entitled to be excused from becoming his own wife's curator, even after
intermeddling with her affairs.

20 No man is discharged from the burden of guardianship who has procured
exemption by false allegations.




TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED

The accusation of guardians or curators on suspicion originated in the
statute of the Twelve Tables;

1 the removal of those who are accused on suspicion is part of the
jurisdiction, at Rome, of the praetor, and in the provinces of their
governors and of the proconsul's legate.

2 Having shown what magistrates can take cognizance of this subject, let
us see what persons are liable to be accused on suspicion. All guardians
are liable, whether appointed by testament or otherwise; consequently
even a statutory guardian may be made the object of such an accusation.
But what is to be said of a patron guardian? Even here we must reply
that he too is liable; though we must remember that his reputation must
be spared in the event of his removal on suspicion.

3 The next point is to see what persons may bring this accusation; and
it is to be observed that the action partakes of a public character,
that is to say, is open to all. Indeed, by a rescript of Severus and
Antoninus even women are made competent to bring it, but only those who
can allege a close tie of affection as their motive; for instance, a
mother, nurse, grandmother, or sister. And the praetor will allow any
woman to prefer the accusation in whom he finds an affection real enough
to induce her to save a pupil from suffering harm, without seeming to be
more forward than becomes her sex.

4 Persons below the age of puberty cannot accuse their guardians on
suspicion; but by a rescript of Severus and Antoninus it has been
permitted to those who have reached that age to deal thus with their
curators, after taking the advice of their nearest relations.

5 A guardian is 'suspected' who does not faithfully discharge his
tutorial functions, though he may be perfectly solvent, as was the
opinion also of Julian. Indeed, Julian writes that a guardian may be
removed on suspicion before he commences his administration, and a
constitution has been issued in accordance with this view.

6 A person removed from office on suspicion incurs infamy if his offence
was fraud, but not if it was merely negligence.

7 As Papinian held, on a person being accused on suspicion he is
suspended from the administration until the action is decided.

8 If a guardian or curator who is accused on suspicion dies after the
commencement of the action, but before it has been decided, the action
is thereby extinguished;

9 and if a guardian fails to appear to a summons of which the object is
to fix by judicial order a certain rate of maintenance for the pupil,
the rescript of the Emperors Severus and Antoninus provides that the
pupil may be put in possession of the guardian's property, and orders
the sale of the perishable portions thereof after appointment of a
curator. Consequently, a guardian may be removed as suspected who does
not provide his pupil with sufficient maintenance.

10 If, on the other hand, the guardian appears, and alleges that the
pupil's property is too inconsiderable to admit of maintenance being
decreed, and it is shown that the allegation is false, the proper course
is for him to be sent for punishment to the prefect of the city, like
those who purchase a guardianship with bribery.

11 So too a freedman, convicted of having acted fraudulently as guardian
of the sons or grandsons of his patron, should be sent to the prefect of
the city for punishment.

12 Finally, it is to be noted, that guardians or curators who are guilty
of fraud in their administration must be removed from their office even
though they offer to give security, for giving security does not change
the evil intent of the guardian, but only gives him a larger space of
time wherein he may injure the pupil's property: 13 for a man's mere
character or conduct may be such as to justify one's deeming him
'suspected.' No guardian or curator, however, may be removed on
suspicion merely because he is poor, provided he is also faithful and
diligent.




BOOK II.




     TITLES
     I. Of the different kinds of Things
     II. Of incorporeal Things
     III. Of servitudes
     IV. Of usufruct
     V. Of use and habitation
     VI. Of usucapion and long possession
     VII. Of gifts
     VIII. Of persons who may, and who may
     not alienate
     IX. Of persons through whom we acquire
     X. Of the execution of wills
     XI. Of soldiers' wills
     XII. Of persons incapable of making wills
     XIII. Of the disinherison of children
     XIV. Of the institution of the heir
     XV. Of ordinary substitution
     XVI. Of pupillary substitution
     XVII. Of the modes in which wills become
     void
     XVIII.  Of an unduteous will
     XIX. Of the kinds of and differences
     between heirs
     XX. Of legacies
     XXI. Of the ademption and transference
     of legacies
     XXII. Of the lex Falcidia
     XXIII. Of trust inheritances
     XXIV. Of trust bequests of single things
     XXV. Of codicils




TITLE I. OF THE DIFFERENT KINDS OF THINGS

In the preceding book we have expounded the law of Persons: now let us
proceed to the law of Things. Of these, some admit of private ownership,
while others, it is held, cannot belong to individuals: for some things
are by natural law common to all, some are public, some belong to a
society or corporation, and some belong to no one. But most things
belong to individuals, being acquired by various titles, as will appear
from what follows.

1 Thus, the following things are by natural law common to all--the air,
running water, the sea, and consequently the seashore. No one therefore
is forbidden access to the seashore, provided he abstains from injury to
houses, monuments, and buildings generally; for these are not, like the
sea itself, subject to the law of nations.

2 On the other hand, all rivers and harbours are public, so that all
persons have a right to fish therein.

3 The seashore extends to the limit of the highest tide in time of storm
or winter.

4 Again, the public use of the banks of a river, as of the river itself,
is part of the law of nations; consequently every one is entitled to
bring his vessel to the bank, and fasten cables to the trees growing
there, and use it as a resting-place for the cargo, as freely as he may
navigate the river itself. But the ownership of the bank is in the owner
of the adjoining land, and consequently so too is the ownership of the
trees which grow upon it.

5 Again, the public use of the seashore, as of the sea itself, is part
of the law of nations; consequently every one is free to build a cottage
upon it for purposes of retreat, as well as to dry his nets and haul
them up from the sea. But they cannot be said to belong to any one as
private property, but rather are subject to the same law as the sea
itself, with the soil or sand which lies beneath it.

6 As examples of things belonging to a society or corporation, and not
to individuals, may be cited buildings in cities--theatres, racecourses,
and such other similar things as belong to cities in their corporate
capacity.

7 Things which are sacred, devoted to superstitious uses, or sanctioned,
belong to no one, for what is subject to divine law is no one's
property.

8 Those things are sacred which have been duly consecrated to God by
His ministers, such as churches and votive offerings which have been
properly dedicated to His service; and these we have by our constitution
forbidden to be alienated or pledged, except to redeem captives from
bondage. If any one attempts to consecrate a thing for himself and by
his own authority, its character is unaltered, and it does not become
sacred. The ground on which a sacred building is erected remains sacred
even after the destruction of the building, as was declared also by
Papinian.

9 Any one can devote a place to superstitious uses of his own free
will, that is to say, by burying a dead body in his own land. It is not
lawful, however, to bury in land which one owns jointly with some one
else, and which has not hitherto been used for this purpose, without the
other's consent, though one may lawfully bury in a common sepulchre
even without such consent. Again, the owner may not devote a place to
superstitious uses in which another has a usufruct, without the consent
of the latter. It is lawful to bury in another man's ground, if he gives
permission, and the ground thereby becomes religious even though he
should not give his consent to the interment till after it has taken
place.

10 Sanctioned things, too, such as city walls and gates, are, in
a sense, subject to divine law, and therefore are not owned by any
individual. Such walls are said to be 'sanctioned,' because any offence
against them is visited with capital punishment; for which reason
those parts of the laws in which we establish a penalty for their
transgressors are called sanctions.

11 Things become the private property of individuals in many ways; for
the titles by which we acquire ownership in them are some of them titles
of natural law, which, as we said, is called the law of nations, while
some of them are titles of civil law. It will thus be most convenient to
take the older law first: and natural law is clearly the older, having
been instituted by nature at the first origin of mankind, whereas
civil laws first came into existence when states began to be founded,
magistrates to be created, and laws to be written.

12 Wild animals, birds, and fish, that is to say all the creatures which
the land, the sea, and the sky produce, as soon as they are caught
by any one become at once the property of their captor by the law of
nations; for natural reason admits the title of the first occupant to
that which previously had no owner. So far as the occupant's title is
concerned, it is immaterial whether it is on his own land or on that of
another that he catches wild animals or birds, though it is clear that
if he goes on another man's land for the sake of hunting or fowling,
the latter may forbid him entry if aware of his purpose. An animal thus
caught by you is deemed your property so long as it is completely under
your control; but so soon as it has escaped from your control, and
recovered its natural liberty, it ceases to be yours, and belongs to the
first person who subsequently catches it. It is deemed to have recovered
its natural liberty when you have lost sight of it, or when, though it
is still in your sight, it would be difficult to pursue it.

13 It has been doubted whether a wild animal becomes your property
immediately you have wounded it so severely as to be able to catch it.
Some have thought that it becomes yours at once, and remains so as
long as you pursue it, though it ceases to be yours when you cease
the pursuit, and becomes again the property of any one who catches it:
others have been of opinion that it does not belong to you till you have
actually caught it. And we confirm this latter view, for it may happen
in many ways that you will not capture it.

14 Bees again are naturally wild; hence if a swarm settles on your tree,
it is no more considered yours, until you have hived it, than the birds
which build their nests there, and consequently if it is hived by
some one else, it becomes his property. So too any one may take the
honeycombs which bees may chance to have made, though, of course, if you
see some one coming on your land for this purpose, you have a right,
to forbid him entry before that purpose is effected. A swarm which has
flown from your hive is considered to remain yours so long as it is in
your sight and easy of pursuit: otherwise it belongs to the first person
who catches it.

15 Peafowl too and pigeons are naturally wild, and it is no valid
objection that they are used to return to the same spots from which they
fly away, for bees do this, and it is admitted that bees are wild by
nature; and some people have deer so tame that they will go into the
woods and yet habitually come back again, and still no one denies that
they are naturally wild. With regard, however, to animals which have
this habit of going away and coming back again, the rule has been
established that they are deemed yours so long as they have the intent
to return: for if they cease to have this intention they cease to be
yours, and belong to the first person who takes them; and when they lose
the habit they seem also to have lost the intention of returning.

16 Fowls and geese are not naturally wild, as is shown by the fact that
there are some kinds of fowls and geese which we call wild kinds. Hence
if your geese or fowls are frightened and fly away, they are considered
to continue yours wherever they may be, even though you have lost sight
of them; and any one who keeps them intending thereby to make a profit
is held guilty of theft.

17 Things again which we capture from the enemy at once become ours
by the law of nations, so that by this rule even free men become our
slaves, though, if they escape from our power and return to their own
people, they recover their previous condition.

18 Precious stones too, and gems, and all other things found on the
seashore, become immediately by natural law the property of the finder:

19 and by the same law the young of animals of which you are the owner
become your property also.

20 Moreover, soil which a river has added to your land by alluvion
becomes yours by the law of nations. Alluvion is an imperceptible
addition; and that which is added so gradually that you cannot perceive
the exact increase from one moment of time to another is added by
alluvion.

21 If, however, the violence of the stream sweeps away a parcel of
your land and carries it down to the land of your neighbour it clearly
remains yours; though of course if in the process of time it becomes
firmly attached to your neighbour's land, they are deemed from that time
to have become part and parcel thereof.

22 When an island rises in the sea, though this rarely happens, it
belongs to the first occupant; for, until occupied, it is held to belong
to no one. If, however (as often occurs), an island rises in a river,
and it lies in the middle of the stream, it belongs in common to the
landowners on either bank, in proportion to the extent of their riparian
interest; but if it lies nearer to one bank than to the other, it
belongs to the landowners on that bank only. If a river divides into
two channels, and by uniting again these channels transform a man's land
into an island, the ownership of that land is in no way altered:

23 but if a river entirely leaves its old channel, and begins to run in
a new one, the old channel belongs to the landowners on either side of
it in proportion to the extent of their riparian interest, while the new
one acquires the same legal character as the river itself, and becomes
public. But if after a while the river returns to its old channel, the
new channel again becomes the property of those who possess the land
along its banks.

24 It is otherwise if one's land is wholly flooded, for a flood does not
permanently alter the nature of the land, and consequently if the water
goes back the soil clearly belongs to its previous owner.

25 When a man makes a new object out of materials belonging to another,
the question usually arises, to which of them, by natural reason, does
this new object belong--to the man who made it, or to the owner of the
materials? For instance, one man may make wine, or oil, or corn, out of
another man's grapes, olives, or sheaves; or a vessel out of his gold,
silver, or bronze; or mead of his wine and honey; or a plaster or
eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest,
or a chair out of his timber. After many controversies between the
Sabinians and Proculians, the law has now been settled as follows, in
accordance with the view of those who followed a middle course between
the opinions of the two schools. If the new object can be reduced to
the materials out of which it was made, it belongs to the owner of the
materials; if not, it belongs to the person who made it. For instance, a
vessel can be melted down, and so reduced to the rude material--bronze,
silver, or gold--of which it is made: but it is impossible to reconvert
wine into grapes, oil into olives, or corn into sheaves, or even mead
into the wine and honey out of which it was compounded. But if a man
makes a new object out of materials which belong partly to him and
partly to another--for instance, mead of his own wine and another's
honey, or a plaster or eyesalve of drugs which are not all his own, or
cloth of wool which belongs only in part to him--in this case there
can be no doubt that the new object belongs to its creator, for he has
contributed not only part of the material, but the labour by which it
was made.

26 If, however, a man weaves into his own cloth another man's purple,
the latter, though the more valuable, becomes part of the cloth by
accession; but its former owner can maintain an action of theft against
the purloiner, and also a condiction, or action for reparative damages,
whether it was he who made the cloth, or some one else; for although the
destruction of property is a bar to a real action for its recovery,
it is no bar to a condiction against the thief and certain other
possessors.

27 If materials belonging to two persons are mixed by consent--for
instance, if they mix their wines, or melt together their gold or their
silver--the result of the mixture belongs to them in common. And the law
is the same if the materials are of different kinds, and their mixture
consequently results in a new object, as where mead is made by mixing
wine and honey, or electrum by mixing gold and silver; for even here it
is not doubted that the new object belongs in common to the owners of
the materials. And if it is by accident, and not by the intention of the
owners, that materials have become mixed, the law is the same, whether
they were of the same or of different kinds.

28 But if the corn of Titius has become mixed with yours, and this by
mutual consent, the whole will belong to you in common, because the
separate bodies or grains, which before belonged to one or the other
of you in severalty, have by consent on both sides been made your joint
property. If, however, the mixture was accidental, or if Titius mixed
the two parcels of corn without your consent, they do not belong to
you in common, because the separate grains remain distinct, and their
substance is unaltered; and in such cases the corn no more becomes
common property than does a flock formed by the accidental mixture of
Titius's sheep with yours. But if either of you keeps the whole of the
mixed corn, the other can bring a real action for the recovery of such
part of it as belongs to him, it being part of the province of the judge
to determine the quality of the wheat which belonged to each.

29 If a man builds upon his own ground with another's materials, the
building is deemed to be his property, for buildings become a part
of the ground on which they stand. And yet he who was owner of the
materials does not cease to own them, but he cannot bring a real action
for their recovery, or sue for their production, by reason of a clause
in the Twelve Tables providing that no one shall be compelled to take
out of his house materials (tignum), even though they belong to another,
which have once been built into it, but that double their value may
be recovered by the action called 'de tigno iniuncto.' The term tignum
includes every kind of material employed in building, and the object
of this provision is to avoid the necessity of having buildings pulled
down; but if through some cause or other they should be destroyed, the
owner of the materials, unless he has already sued for double value, may
bring a real action for recovery, or a personal action for production.

30 On the other hand, if one man builds a house on another's land with
his own materials, the house belongs to the owner of the land. In this
case, however, the right of the previous owner in the materials is
extinguished, because he is deemed to have voluntarily parted with them,
though only, of course, if he was aware that the land on which he was
building belonged to another man. Consequently, though the house should
be destroyed, he cannot claim the materials by real action. Of course,
if the builder of the house has possession of the land, and the owner of
the latter claims the house by real action, but refuses to pay for the
materials and the workmen's wages, he can be defeated by the plea of
fraud, provided the builder's possession is in good faith: for if he
knew that the land belonged to some one else it may be urged against him
that he was to blame for rashly building on land owned to his knowledge
by another man.

31 If Titius plants another man's shrub in land belonging to himself,
the shrub will become his; and, conversely, if he plants his own shrub
in the land of Maevius, it will belong to Maevius. In neither case,
however, will the ownership be transferred until the shrub has taken
root: for, until it has done this, it continues to belong to the
original owner. So strict indeed is the rule that the ownership of
the shrub is transferred from the moment it has taken root, that if a
neighbour's tree grows so close to the land of Titius that the soil of
the latter presses round it, whereby it drives its roots entirely into
the same, we say the tree becomes the property of Titius, on the ground
that it would be unreasonable to allow the owner of a tree to be a
different person from the owner of the land in which it is rooted.
Consequently, if a tree which grows on the boundaries of two estates
drives its roots even partially into the neighbour's soil, it becomes
the common property of the two landowners.

32 On the same principle corn is reckoned to become a part of the soil
in which it is sown. But exactly as (according to what we said) a man
who builds on another's land can defend himself by the plea of fraud
when sued for the building by the owner of the land, so here too one who
has in good faith and at his own expense put crops into another man's
soil can shelter himself behind the same plea, if refused compensation
for labour and outlay.

33 Writing again, even though it be in letters of gold, becomes a part
of the paper or parchment, exactly as buildings and sown crops become
part of the soil, and consequently if Titius writes a poem, or a
history, or a speech on your paper and parchment, the whole will be held
to belong to you, and not to Titius. But if you sue Titius to recover
your books or parchments, and refuse to pay the value of the writing,
he will be able to defend himself by the plea of fraud, provided that he
obtained possession of the paper or parchment in good faith.

34 Where, on the other hand, one man paints a picture on another's
board, some think that the board belongs, by accession, to the painter,
others, that the painting, however great its excellence, becomes part of
the board. The former appears to us the better opinion, for it is absurd
that a painting by Apelles or Parrhasius should be an accessory of a
board which, in itself, is thoroughly worthless. Hence, if the owner
of the board has possession of the picture, and is sued for it by the
painter, who nevertheless refuses to pay the cost of the board, he will
be able to repel him by the plea of fraud. If, on the other hand, the
painter has possession, it follows from what has been said that the
former owner of the board, [if he is to be able to sue at all], must
claim it by a modified and not by a direct action; and in this case,
if he refuses to pay the cost of the picture, he can be repelled by the
plea of fraud, provided that the possession of the painter be in good
faith; for it is clear, that if the board was stolen by the painter, or
some one else, from its former owner, the latter can bring the action of
theft.

35 If a man in good faith buys land from another who is not its owner,
though he believed he was, or acquires it in good faith by gift or some
other lawful title, natural reason directs that the fruits which he has
gathered shall be his, in consideration of his care and cultivation:
consequently if the owner subsequently appears and claims the land by
real action, he cannot sue for fruits which the possessor has consumed.
This, however, is not allowed to one who takes possession of land which
to his knowledge belongs to another person, and therefore he is obliged
not only to restore the land, but to make compensation for fruits even
though they have been consumed.

36 A person who has a usufruct in land does not become owner of
the fruits which grow thereon until he has himself gathered them;
consequently fruits which, at the moment of his decease, though ripe,
are yet ungathered, do not belong to his heir, but to the owner of the
land. What has been said applies also in the main to the lessee of land.

37 The term 'fruits,' when used of animals, comprises their young,
as well as milk, hair, and wool; thus lambs, kids, calves, and foals,
belong at once, by the natural law of ownership, to the fructuary.
But the term does not include the offspring of a female slave, which
consequently belongs to her master; for it seemed absurd to reckon human
beings as fruits, when it is for their sake that all other fruits have
been provided by nature.

38 The usufructuary of a flock, as Julian held, ought to replace any of
the animals which die from the young of the rest, and, if his usufruct
be of land, to replace dead vines or trees; for it is his duty to
cultivate according to law and use them like a careful head of a family.

39 If a man found treasure in his own land, the Emperor Hadrian,
following natural equity, adjudged to him the ownership of it, as he
also did to a man who found one by accident in soil which was sacred or
religious. If he found it in another man's land by accident, and without
specially searching for it, he gave half to the finder, half to the
owner of the soil; and upon this principle, if a treasure were found in
land belonging to the Emperor, he decided that half should belong to
the latter, and half to the finder; and consistently with this, if a man
finds one in land which belongs to the imperial treasury or the people,
half belongs to him, and half to the treasury or the State.

40 Delivery again is a mode in which we acquire things by natural law;
for it is most agreeable to natural equity that where a man wishes to
transfer his property to another person his wish should be confirmed.
Consequently corporeal things, whatever be their nature, admit of
delivery, and delivery by their owner makes them the property of the
alienee; this, for instance, is the mode of alienating stipendiary and
tributary estates, that is to say, estates lying in provincial soil;
between which, however, and estates in Italy there now exists, according
to our constitution, no difference.

41 And ownership is transferred whether the motive of the delivery
be the desire to make a gift, to confer a dowry, or any other motive
whatsoever. When, however, a thing is sold and delivered, it does not
become the purchaser's property until he has paid the price to the
vendor, or satisfied him in some other way, as by getting some one else
to accept liability for him, or by pledge. And this rule, though laid
down also in the statute of the Twelve Tables, is rightly said to be a
dictate of the law of all nations, that is, of natural law. But if the
vendor gives the purchaser credit, the goods sold belong to the latter
at once.

42 It is immaterial whether the person who makes delivery is the owner
himself, or some one else acting with his consent.

43 Consequently, if any one is entrusted by an owner with the management
of his business at his own free discretion, and in the execution of his
commission sells and delivers any article, he makes the receiver its
owner.

44 In some cases even the owner's bare will is sufficient, without
delivery, to transfer ownership. For instance, if a man sells or makes
you a present of a thing which he has previously lent or let to you or
placed in your custody, though it was not from that motive he originally
delivered it to you, yet by the very fact that he suffers it to be
yours you at once become its owner as fully as if it had been originally
delivered for the purpose of passing the property.

45 So too if a man sells goods lying in a warehouse, he transfers the
ownership of them to the purchaser immediately he has delivered to the
latter the keys of the warehouse.

46 Nay, in some cases the will of the owner, though directly only
towards an uncertain person, transfers the ownership of the thing, as
for instance when praetors and consuls throw money to a crowd: here they
know not which specific coin each person will get, yet they make the
unknown recipient immediately owner, because it is their will that each
shall have what he gets.

47 Accordingly, it is true that if a man takes possession of property
abandoned by its previous owner, he at once becomes its owner himself:
and a thing is said to be abandoned which its owner throws away with the
deliberate intention that it shall no longer be part of his property,
and of which, consequently, he immediately ceases to be the owner.

48 It is otherwise with things which are thrown overboard during a
storm, in order to lighten the ship; in the ownership of these things
there is no change, because the reason for which they are thrown
overboard is obviously not that the owner does not care to own them any
longer, but that he and the ship besides may be more likely to escape
the perils of the sea. Consequently any one who carries them off after
they are washed on shore, or who picks them up at sea and keeps them,
intending to make a profit thereby, commits a theft; for such things
seem to be in much the same position as those which fall out of a
carriage in motion unknown to their owners.




TITLE II. OF INCORPOREAL THINGS

Some things again are corporeal, and others incorporeal.

1 Those are corporeal which in their own nature are tangible, such as
land, slaves, clothing, gold, silver, and others innumerable.

2 Things incorporeal are such as are intangible: rights, for instance,
such as inheritance, usufruct, and obligations, however acquired. And it
is no objection to this definition that an inheritance comprises things
which are corporeal; for the fruits of land enjoyed by a usufructuary
are corporeal too, and obligations generally relate to the conveyance of
something corporeal, such as land, slaves, or money, and yet the right
of succession, the right of usufruct, and the right existing in every
obligation, are incorporeal.

3 So too the rights appurtenant to land, whether in town or country,
which are usually called servitudes, are incorporeal things.




TITLE III. OF SERVITUDES

The following are rights appurtenant to country estates: 'iter,'
the right of passage at will for a man only, not of driving beast or
vehicles; 'actus,' the right of driving beasts or vehicles (of which two
the latter contains the former, though the former does not contain the
latter, so that a man who has iter has not necessarily actus, while if
he has actus he has also iter, and consequently can pass himself even
though unaccompanied by cattle); 'via,' which is the right of going, of
driving any thing whatsoever, and of walking, and which thus contains
both iter and actus; and fourthly, 'aquaeductus,' the right of
conducting water over another man's land.

1 Servitudes appurtenant to town estates are rights which are attached
to buildings; and they are said to appertain to town estates because all
buildings are called 'town estates,' even though they are actually in
the country. The following are servitudes of this kind--the obligation
of a man to support the weight of his neighbour's house, to allow a beam
to be let into his wall, or to receive the rain from his neighbour's
roof on to his own either in drops or from a shoot, or from a gutter
into his yard; the converse right of exemption from any of these
obligations; and the right of preventing a neighbour from raising his
buildings, lest thereby one's ancient lights be obstructed.

2 Some think that among servitudes appurtenant to country estates ought
properly to be reckoned the rights of drawing water, of watering cattle,
of pasture, of burning lime, and of digging sand.

3 These servitudes are called rights attached to estates, because
without estates they cannot come into existence; for no one can acquire
or own a servitude attached to a town or country estate unless he has an
estate for it to be attached to.

4 When a landowner wishes to create any of these rights in favour of
his neighbour, the proper mode of creation is agreement followed by
stipulation. By testament too one can impose on one's heir an obligation
not to raise the height of his house so as to obstruct his neighbour's
ancient lights, or bind him to allow a neighbour to let a beam into
his wall, to receive the rain water from a neighbour's pipe, or allow a
neighbour a right of way, of driving cattle or vehicles over his land,
or conducting water over it.




TITLE IV. OF USUFRUCT

Usufruct is the right of using and taking the fruits of property not
one's own, without impairing the substance of that property; for being
a right over a corporeal thing, it is necessarily extinguished itself
along with the extinction of the latter.

1 Usufruct is thus a right detached from the aggregate of rights
involved in ownership, and this separation can be effected in very many
ways: for instance, if one man gives another a usufruct by legacy, the
legatee has the usufruct, while the heir has merely the bare ownership;
and, conversely, if a man gives a legacy of an estate, reserving
the usufruct, the usufruct belongs to the heir, while only the bare
ownership is vested in the legatee. Similarly, he can give to one man
a legacy of the usufruct, to another one of the estate, subject to the
other's usufruct. If it is wished to create a usufruct in favour of
another person otherwise than by testament, the proper mode is agreement
followed by stipulation. However, lest ownership should be entirely
valueless through the permanent separation from it of the usufruct,
certain modes have been approved in which usufruct may be extinguished,
and thereby revert to the owner.

2 A usufruct may be created not only in land or buildings, but also in
slaves, cattle, and other objects generally, except such as are actually
consumed by being used, of which a genuine usufruct is impossible by
both natural and civil law. Among them are wine, oil, grain, clothing,
and perhaps we may also say coined money; for a sum of money is in a
sense extinguished by changing hands, as it constantly does in simply
being used. For convenience sake, however, the senate enacted that a
usufruct could be created in such things, provided that due security be
given to the heir. Thus if a usufruct of money be given by legacy, that
money, on being delivered to the legatee, becomes his property, though
he has to give security to the heir that he will repay an equivalent
sum on his dying or undergoing a loss of status. And all things of this
class, when delivered to the legatee, become his property, though they
are first appraised, and the legatee then gives security that if he dies
or undergoes a loss of status he will ay the value which was put upon
them. Thus in point of fact the senate did not introduce a usufruct
of such things, for that was beyond its power, but established a right
analogous to usufruct by requiring security.

3 Usufruct determines by the death of the usufructuary, by his
undergoing either of the greater kinds of loss of status, by its
improper exercise, and by its nonexercise during the time fixed by
law; all of which points are settled by our constitution. It is also
extinguished when surrendered to the owner by the usufructuary (though
transfer to a third person is inoperative); and again, conversely,
by the fructuary becoming owner of the thing, this being called
consolidation. Obviously, a usufruct of a house is extinguished by
the house being burnt down, or falling through an earthquake or faulty
construction; and in such case a usufruct of the site cannot be claimed.

4 When a usufruct determines, it reverts to and is reunited with the
ownership; and from that moment he who before was but bare owner of the
thing begins to have full power over it.




TITLE V. OF USE AND HABITATION

A bare use, or right of using a thing, is created in the same mode as a
usufruct, and the modes in which it may determine are the same as those
just described.

1 A use is a less right than a usufruct; for if a man has a bare use of
an estate, he is deemed entitled to use the vegetables, fruit, flowers,
hay, straw, and wood upon it only so far as his daily needs require:
he may remain on the land only so long as he does not inconvenience its
owner, or impede those who are engaged in its cultivation; but he
cannot let or sell or give away his right to a third person, whereas a
usufructuary may.

2 Again, a man who has the use of a house is deemed entitled only to
live in it himself; he cannot transfer his right to a third person, and
it scarcely seems to be agreed that he may take in a guest; but besides
himself he may lodge there his wife, children, and freedmen, and other
free persons who form as regular a part of his establishment as his
slaves. Similarly, if a woman has the use of a house, her husband may
dwell there with her.

3 When a man has the use of a slave, he has only the right of personally
using his labour and services; in no way is he allowed to transfer his
right to a third person, and the same applies to the use of beasts of
burden.

4 If a legacy be given of the use of a herd or of a flock of sheep, the
usuary may not use the milk, lambs, or wool, for these are fruits; but
of course he may use the animals for the purpose of manuring his land.

5 If a right of habitation be given to a man by legacy or in some other
mode, this seems to be neither a use nor a usufruct, but a distinct
and as it were independent right; and by a constitution which we have
published in accordance with the opinion of Marcellus, and in the
interests of utility, we have permitted persons possessed of this right
not only to live in the building themselves, but also to let it out to
others.

6 What we have here said concerning servitudes, and the rights of
usufruct, use, and habitation, will be sufficient; of inheritance and
obligations we will treat in their proper places respectively. And
having now briefly expounded the modes in which we acquire things by the
law of nations, let us turn and see in what modes they are acquired by
statute or by civil law.




TITLE VI. OF USUCAPION AND LONG POSSESSION

It was a rule of the civil law that if a man in good faith bought a
thing, or received it by way of gift, or on any other lawful ground,
from a person who was not its owner, but whom he believed to be such, he
should acquire it by usucapion--if a movable, by one year's possession,
and by two years' possession if an immovable, though in this case
only if it were in Italian soil;--the reason of the rule being the
inexpediency of allowing ownership to be long unascertained. The
ancients thus considered that the periods mentioned were sufficient to
enable owners to look after their property; but we have arrived at a
better opinion, in order to save people from being overquickly defrauded
of their own, and to prevent the benefit of this institution from being
confined to only a certain part of the empire. We have consequently
published a constitution on the subject, enacting that the period of
usucapion for movables shall be three years, and that ownership of
immovables shall be acquired by long possession--possession, that is to
say, for ten years, if both parties dwell in the same province, and for
twenty years if in different provinces; and things may in these modes
be acquired in full ownership, provided the possession commences on a
lawful ground, not only in Italy but in every land subject to our sway.

1 Some things, however, not withstanding the good faith of the
possessor, and the duration of his possession, cannot be acquired by
usucapion; as is the case, for instance, if one possesses a free man, a
thing sacred or religious, or a runaway slave.

2 Things again of which the owner lost possession by theft, or
possession of which was gained by violence, cannot be acquired by
usucapion, even by a person who has possessed them in good faith for the
specified period: for stolen things are declared incapable of usucapion
by the statute of the Twelve Tables and by the lex Atinia, and things
taken with violence by the lex Iulia et Plautia.

3 The statement that things stolen or violently possessed cannot, by
statute, be acquired by usucapion, means, not that the thief or violent
dispossessor is incapable of usucapion--for these are barred by another
reason, namely the fact that their possession is not in good faith; but
that even a person who has purchased the thing from them in good faith,
or received it on some other lawful ground, is incapable of acquiring by
usucapion. Consequently, in things movable even a person who possesses
in good faith can seldom acquire ownership by usucapion, for he who
sells, or on some other ground delivers possession of a thing belonging
to another, commits a theft.

4 However, this admits of exception; for if an heir, who believes a
thing lent or let to, or deposited with, the person whom he succeeds,
to be a portion of the inheritance, sells or gives it by way of dowry to
another who receives it in good faith, there is no doubt that the latter
can acquire the ownership of it by usucapion; for the thing is here not
tainted with the flaw attaching to stolen property, because an heir does
not commit a theft who in good faith conveys a thing away believing it
to be his own.

5 Again, the usufructuary of a female slave, who believes her offspring
to be his property, and sells or gives it away, does not commit a theft:
for theft implies unlawful intention.

6 There are also other ways in which one man can transfer to another
property which is not his own, without committing a theft, and thereby
enable the receiver to acquire by usucapion.

7 Usucapion of property classed among things immovable is an easier
matter; for it may easily happen that a man may, without violence,
obtain possession of land which, owing to the absence or negligence of
its owner, or to his having died and left no successor, is presently
possessed by no one. Now this man himself does not possess in good
faith, because he knows the land on which he has seized is not his own:
but if he delivers it to another who receives it in good faith, the
latter can acquire it by long possession, because it has neither
been stolen nor violently possessed; for the idea held by some of the
ancients, that a piece of land or a place can be stolen, has now been
exploded, and imperial constitutions have been enacted in the interests
of persons possessing immovables, to the effect that no one ought to
be deprived of a thing of which he has had long and unquestioned
possession.

8 Sometimes indeed even things which have been stolen or violently
possessed can be acquired by usucapion, as for instance after they have
again come under the power of their real owner: for by this they are
relieved from the taint which had attached to them, and so become
capable of usucapion.

9 Things belonging to our treasury cannot be acquired by usucapion. But
there is on record an opinion of Papinian, supported by the rescripts of
the Emperors Pius, Severus, and Antoninus, that if, before the property
of a deceased person who has left no heir is reported to the exchequer,
some one has bought or received some part thereof, he can acquire it by
usucapion.

10 Finally, it is to be observed that things are incapable of being
acquired through usucapion by a purchaser in good faith, or by one who
possesses on some other lawful ground, unless they are free from all
flaws which vitiate the usucapion.

11 If there be a mistake as to the ground on which possession is
acquired, and which it is wrongly supposed will support usucapion,
usucapion cannot take place. Thus a man's possession may be founded on
a supposed sale or gift, whereas in point of fact there has been no sale
or gift at all.

12 Long possession which has begun to run in favour of a deceased person
continues to run on in favour of his heir or praetorian successor, even
though he knows that the land belongs to another person. But if the
deceased's possession had not a lawful inception, it is not available
to the heir or praetorian successor, although ignorant of this. Our
constitution has enacted that in usucapion too a similar rule shall
be observed, and that the benefit of the possession shall continue in
favour of the successor.

13 The Emperors Severus and Antoninus have decided by a rescript that a
purchaser too may reckon as his own the time during which his vendor has
possessed the thing.

14 Finally, it is provided by an edict of the Emperor Marcus that after
an interval of five years a purchaser from the treasury of property
belonging to a third person may repel the owner, if sued by him, by
an exception. But a constitution issued by Zeno of sacred memory has
protected persons who acquire things from the treasury by purchase,
gift, or other title, affording them complete security from the moment
of transfer, and guaranteeing their success in any action relating
thereto, whether they be plaintiffs or defendants; while it allows those
who claim any action in respect of such property as owners or pledges
to sue the imperial treasury at any time within four years from the
transaction. A divine constitution which we ourselves have lately issued
has extended the operation of Zeno's enactment, respecting conveyances
by the treasury, to persons who have acquired anything from our palace
or that of the Empress.




TITLE VII. OF GIFTS

Another mode in which property is acquired is gift. Gifts are of two
kinds; those made in contemplation of death, and those not so made.

1 Gifts of the first kind are those made in view of approaching death,
the intention of the giver being that in the event of his decease the
thing given should belong to the donee, but that if he should survive or
should desire to revoke the gift, or if the donee should die first, the
thing should be restored to him. These gifts in contemplation of death
now stand on exactly the same footing as legacies; for as in some
respects they were more like ordinary gifts, in others more like
legacies, the jurists doubted under which of these two classes
they should be placed, some being for gift, others for legacy: and
consequently we have enacted by constitution that in nearly every
respect they shall be treated like legacies, and shall be governed by
the rules laid down respecting them in our constitution. In a word, a
gift in contemplation of death is where the donor would rather have the
thing himself than that the donee should have it, and that the latter
should rather have it than his own heir. An illustration may be found in
Homer, where Telemachus makes a gift to Piraeus.

2 Gifts which are made without contemplation of death, which we call
gifts between the living, are of another kind, and have nothing in
common with legacies. If the transaction be complete, they cannot be
revoked at pleasure; and it is complete when the donor has manifested
his intention, whether in writing or not. Our constitution has settled
that such a manifestation of intention binds the donor to deliver,
exactly as in the case of sale; so that even before delivery gifts
are completely effectual, and the donor is under a legal obligation to
deliver the object. Enactments of earlier emperors required that
such gifts, if in excess of two hundred solidi, should be officially
registered; but our constitution has raised this maximum to five hundred
solidi, and dispensed with the necessity of registering gifts of this
or of a less amount; indeed it has even specified some gifts which are
completely valid, and require no registration, irrespective of their
amount. We have devised many other regulations in order to facilitate
and secure gifts, all of which may be gathered from the constitutions
which we have issued on this topic. It is to be observed, however,
that even where gifts have been completely executed we have by our
constitution under certain circumstances enabled donors to revoke them,
but only on proof of ingratitude on the part of the recipient of the
bounty; the aim of this reservation being to protect persons, who have
given their property to others, from suffering at the hands of the
latter injury or loss in any of the modes detailed in our constitution.

3 There is another specific kind of gift between the living, with which
the earlier jurists were quite unacquainted, and which owed its
later introduction to more recent emperors. It was called gift before
marriage, and was subject to the implied condition that it should not
be binding until the marriage had taken place; its name being due to the
fact that it was always made before the union of the parties, and could
never take place after the marriage had once been celebrated. The first
change in this matter was made by our imperial father Justin, who, as
it had been allowed to increase dowries even after marriage, issued a
constitution authorizing the increase of gifts before marriage during
the continuance of the marriage tie in cases where an increase had been
made to the dowry. The name 'gift before marriage' was, however, still
retained, though now inappropriate, because the increase was made to it
after the marriage. We, however, in our desire to perfect the law, and
to make names suit the things which they are used to denote, have by
a constitution permitted such gifts to be first made, and not merely
increased, after the celebration of the marriage, and have directed that
they shall be called gifts 'on account of' (and not 'before') marriage,
thereby assimilating them to dowries; for as dowries are not only
increased, but actually constituted, during marriage, so now gifts
on account of marriage may be not only made before the union of
the parties, but may be first made as well as increased during the
continuance of that union.

4 There was formerly too another civil mode of acquisition, namely, by
accrual, which operated in the following way: if a person who owned
a slave jointly with Titius gave him his liberty himself alone by
vindication or by testament, his share in the slave was lost, and went
to the other joint owner by accrual. But as this rule was very bad as a
precedent--for both the slave was cheated of his liberty, and the kinder
masters suffered all the loss while the harsher ones reaped all the
gain--we have deemed it necessary to suppress a usage which seemed so
odious, and have by our constitution provided a merciful remedy, by
discovering a means by which the manumitter, the other joint owner,
and the liberated slave, may all alike be benefited. Freedom, in whose
behalf even the ancient legislators clearly established many rules at
variance with the general principles of law, will be actually acquired
by the slave; the manumitter will have the pleasure of seeing the
benefit of his kindness undisturbed; while the other joint owner, by
receiving a money equivalent proportionate to his interest, and on the
scale which we have fixed, will be indemnified against all loss.




TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE

It sometimes happens that an owner cannot alienate, and that a nonowner
can. Thus the alienation of dowry land by the husband, without the
consent of the wife, is prohibited by the lex Iulia, although, since
it has been given to him as dowry, he is its owner. We, however, have
amended the lex Iulia, and thus introduced an improvement; for that
statute applied only to land in Italy, and though it prohibited a
mortgage of the land even with the wife's consent, it forbade it to be
alienated only without her concurrence. To correct these two defects we
have forbidden mortgages as well as alienations of dowry land even when
it is situated in the provinces, so that such land can now be dealt with
in neither of these ways, even if the wife concurs, lest the weakness
of the female sex should be used as a means to the wasting of their
property.

1 Conversely, a pledgee, in pursuance of his agreement, may alienate
the pledge, though not its owner; this, however, may seem to rest on the
assent of the pledgor given at the inception of the contract, in which
it was agreed that the pledgee should have a power of sale in default of
repayment. But in order that creditors may not be hindered from pursuing
their lawful rights, or debtors be deemed to be overlightly deprived of
their property, provisions have been inserted in our constitution and
a definite procedure established for the sale of pledges, by which the
interests of both creditors and debtors have been abundantly guarded.

2 We must next observe that no pupil of either sex can alienate anything
without his or her guardian's authority. Consequently, if a pupil
attempts to lend money without such authority, no property passes, and
he does not impose a contractual obligation; hence the money, if it
exists, can be recovered by real action. If the money which he attempted
to lend has been spent in good faith by the wouldbe borrower, it can
be sued for by the personal action called condiction; if it has been
fraudulently spent, the pupil can sue by personal action for its
production. On the other hand, things can be validly conveyed to pupils
of either sex without the guardian's authority; accordingly, if a debtor
wishes to pay a pupil, he must obtain the sanction of the guardian to
the transaction, else he will not be released. In a constitution
which we issued to the advocates of Caesarea at the instance of the
distinguished Tribonian, quaestor of our most sacred palace, it has with
the clearest reason been enacted, that the debtor of a pupil may safely
pay a guardian or curator by having first obtained permission by the
order of a judge, for which no fee is to be payable: and if the judge
makes the order, and the debtor in pursuance thereof makes payment, he
is completely protected by this form of discharge. Supposing, however,
that the form of payment be other than that which we have fixed, and
that the pupil, though he still has the money in his possession, or has
been otherwise enriched by it, attempts to recover the debt by action,
he can be repelled by the plea of fraud. If on the other hand he has
squandered the money or had it stolen from him, the plea of fraud will
not avail the debtor, who will be condemned to pay again, as a penalty
for having carelessly paid without the guardian's authority, and not
in accordance with our regulation. Pupils of either sex cannot validly
satisfy a debt without their guardian's authority, because the money
paid does not become the creditor's property; the principle being that
no pupil is capable of alienation without his guardian's sanction.




TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE

We acquire property not only by our own acts, but also by the acts
of persons in our power, of slaves in whom we have a usufruct, and of
freemen and slaves belonging to another but whom we possess in good
faith. Let us now examine these cases in detail.

1 Formerly, whatever was received by a child in power of either sex,
with the exception of military peculium, was acquired for the parent
without any distinction; and the parent was entitled to give away or
sell to one child, or to a stranger, what had been acquired through
another, or dispose of it in any other way that he pleased. This,
however, seemed to us to be a cruel rule, and consequently by a general
constitution which we have issued we have improved the children's
position, and yet reserved to parents all that was their due. This
enacts that whatever a child gains by and through property, of which
his father allows him the control, is acquired, according to the old
practice, for the father alone; for what unfairness is there in property
derived from the father returning to him? But of anything which the
child derives from any source other than his father, though his father
will have a usufruct therein, the ownership is to belong to the child,
that he may not have the mortification of seeing the gains which he has
made by his own toil or good fortune transferred to another.

2 We have also made a new rule relating to the right which a father had
under earlier constitutions, when he emancipated a child, of retaining
absolutely, if he pleased, a third part of such property of the child
as he himself had no ownership in, as a kind of consideration for
emancipating him. The harsh result of this was that a son was by
emancipation deprived of the ownership of a third of his property; and
thus the honour which he got by being emancipated and made independent
was balanced by the diminution of his fortune. We have therefore enacted
that the parent, in such a case, shall no longer retain the ownership of
a third of the child's property, but, in lieu thereof, the usufruct of
one half; and thus the son will remain absolute owner of the whole of
his fortune, while the father will reap a greater benefit than before,
by being entitled to the enjoyment of a half instead of a third.

3 Again, all rights which your slaves acquire by tradition, stipulation,
or any other title, are acquired for you, even though the acquisition be
without your knowledge, or even against your will; for a slave, who
is in the power of another person, can have nothing of his own.
Consequently, if he is instituted heir, he must, in order to be able to
accept the inheritance, have the command of his master; and if he has
that command, and accepts the inheritance, it is acquired for his master
exactly as if the latter had himself been instituted heir; and it is
precisely the same with a legacy. And not only is ownership acquired for
you by those in your power, but also possession; for you are deemed to
possess everything of which they have obtained detention, and thus
they are to you instruments through whom ownership may be acquired by
usucapion or long possession.

4 Respecting slaves in whom a person has only a usufruct, the rule is,
that what they acquire by means of the property of the usufructuary,
or by their own work, is acquired for him; but what they acquire by
any other means belongs to their owner, to whom they belong themselves.
Accordingly, if such a slave is instituted heir, or made legatee
or donee, the succession, legacy, or gift is acquired, not for the
usufructuary, but for the owner. And a man who in good faith possesses a
free man or a slave belonging to another person has the same rights as
a usufructuary; what they acquire by any other mode than the two we have
mentioned belongs in the one case to the free man, in the other to the
slave's real master. After a possessor in good faith has acquired the
ownership of a slave by usucapion, everything which the slave acquires
belongs to him without distinction; but a fructuary cannot acquire
ownership of a slave in this way, because in the first place he does not
possess the slave at all, but has merely a right of usufruct in him,
and because in the second place he is aware of the existence of another
owner. Moreover, you can acquire possession as well as ownership through
slaves in whom you have a usufruct or whom you possess in good faith,
and through free persons whom in good faith you believe to be your
slaves, though as regards all these classes we must be understood to
speak with strict reference to the distinction drawn above, and to mean
only detention which they have obtained by means of your property or
their own work.

5 From this it appears that free men not subject to your power, or whom
you do not possess in good faith, and other persons' slaves, of whom
you are neither usufructuaries nor just possessors, cannot under any
circumstances acquire for you; and this is the meaning of the maxim
that a man cannot be the means of acquiring anything for one who is
a stranger in relation to him. To this maxim there is but one
exception--namely, that, as is ruled in a constitution of the Emperor
Severus, a free person, such as a general agent, can acquire possession
for you, and that not only when you know, but even when you do not know
of the fact of the acquisition: and through this possession ownership
can be immediately acquired also, if it was the owner who delivered the
thing; and if it was not, it can be acquired ultimately by usucapion or
by the plea of long possession.

6 So much at present concerning the modes of acquiring rights over
single things: for direct and fiduciary bequests, which are also among
such modes, will find a more suitable place in a later portion of our
treatise. We proceed therefore to the titles whereby an aggregate of
rights is acquired. If you become the successors, civil or praetorian,
of a person deceased, or adopt an independent person by adrogation, or
become assignees of a deceased's estate in order to secure their liberty
to slaves manumitted by his will, the whole estate of those persons is
transferred to you in an aggregate mass. Let us begin with inheritances,
whose mode of devolution is twofold, according as a person dies testate
or intestate; and of these two modes we will first treat of acquisition
by will. The first point which here calls for exposition is the mode in
which wills are made.




TITLE X. OF THE EXECUTION OF WILLS

The term testament is derived from two words which mean a signifying of
intention.

1 Lest the antiquities of this branch of law should be entirely
forgotten, it should be known that originally two kinds of testaments
were in use, one of which our ancestors employed in times of peace and
quiet, and which was called the will made in the comitia calata, while
the other was resorted to when they were setting out to battle, and was
called procinctum. More recently a third kind was introduced, called the
will by bronze and balance, because it was made by mancipation, which
was a sort of fictitious sale, in the presence of five witnesses and a
balance holder, all Roman citizens above the age of puberty, together
with the person who was called the purchaser of the family. The two
first-mentioned kinds of testament, however, went out of use even in
ancient times, and even the third, or will by bronze and balance, though
it has remained in vogue longer than they, has become partly disused.

2 All these three kinds of will which we have mentioned belonged to the
civil law, but later still a fourth form was introduced by the praetor's
edict; for the new law of the praetor, or ius honorarium, dispensed
with mancipation, and rested content with the seals of seven witnesses,
whereas the seals of witnesses were not required by the civil law.

3 When, however, by a gradual process the civil and praetorian
laws, partly by usage, partly by definite changes introduced by the
constitution, came to be combined into a harmonious whole, it was
enacted that a will should be valid which was wholly executed at one
time and in the presence of seven witnesses (these two points being
required, in a way, by the old civil law), to which the witnesses
signed their names--a new formality imposed by imperial legislation--and
affixed their seals, as had been required by the praetor's edict. Thus
the present law of testament seems to be derived from three distinct
sources; the witnesses, and the necessity of their all being present
continuously through the execution of the will in order that the
execution may be valid, coming from the civil law: the signing of
the document by the testator and the witnesses being due to imperial
constitutions, and the exact number of witnesses, and the sealing of the
will by them, to the praetor's edict.

4 An additional requirement imposed by our constitution, in order to
secure the genuineness of testaments and prevent forgery, is that
the name of the heir shall be written by either the testator or the
witnesses, and generally that everything shall be done according to the
tenor of that enactment.

5 The witnesses may all seal the testament with the same seal; for, as
Pomponius remarks, what if the device on all seven seals were the same?
It is also lawful for a witness to use a seal belonging to another
person.

6 Those persons only can be witnesses who are legally capable of
witnessing a testament. Women, persons below the age of puberty, slaves,
lunatics, persons dumb or deaf, and those who have been interdicted from
the management of their property, or whom the law declares worthless and
unfitted to perform this office, cannot witness a will.

7 In cases where one of the witnesses to a will was thought free at the
time of its execution, but was afterwards discovered to be a slave, the
Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the
Emperors Severus and Antoninus declared that of their goodness they
would uphold such a will as validly made; for, at the time when it was
sealed, this witness was admitted by all to be free, and, as such, had
had his civil position called in question by no man.

8 A father and a son in his power, or two brothers who are both in the
power of one father, can lawfully witness the same testament, for there
can be no harm in several persons of the same family witnessing together
the act of a man who is to them a stranger.

9 No one, however, ought to be among the witnesses who is in the
testator's power, and if a son in power makes a will of military
peculium after his discharge, neither his father nor any one in his
father's power is qualified to be a witness; for it is not allowed to
support a will by the evidence of persons in the same family with the
testator.

10 No will, again, can be witnessed by the person instituted heir, or
by any one in his power, or by a father in whose power he is, or by a
brother under the power of the same father: for the execution of a will
is considered at the present day to be purely and entirely a transaction
between the testator and the heir. Through mistaken ideas on this matter
the whole law of testamentary evidence fell into confusion: for the
ancients, though they rejected the evidence of the purchaser of the
family and of persons connected with him by the tie of power, allowed
a will to be witnessed by the heir and persons similarly connected with
him, though it must be admitted that they accompanied this privilege
with urgent cautions against its abuse. We have, however, amended this
rule, and enacted in the form of law what the ancients expressed in the
form only of advice, by assimilating the heir to the old purchaser of
the family, and have rightly forbidden the heir, who now represents that
character, and all other persons connected with him by the tie referred
to, to bear witness in a matter in which, in a sense, they would be
witnesses in their own behalf. Accordingly, we have not allowed earlier
constitutions on this subject to be inserted in our Code.

11 Legatees, and persons who take a benefit under a will by way of
trust, and those connected with them, we have not forbidden to be
witnesses, because they are not universal successors of the deceased:
indeed, by one of our constitutions we have specially granted this
privilege to them, and, a fortiori, to persons in their power, or in
whose power they are.

12 It is immaterial whether the will be written on a tablet, paper,
parchment, or any other substance: and a man may execute any number of
duplicates of his will, for this is sometimes necessary, though in each
of them the usual formalities must be observed. For instance, a person
setting out upon a voyage may wish to take a statement of his last
wishes along with him, and also to leave one at home; and numberless
other circumstances which happen to a man, and over which he has no
control, will make this desirable.

14 So far of written wills. When, however, one wishes to make a will
binding by the civil law, but not in writing, he may summon seven
witnesses, and in their presence orally declare his wishes; this, it
should be observed, being a form of will which has been declared by
constitutions to be perfectly valid by civil law.




TITLE XI. OF SOLDIERS' WILLS

Soldiers, in consideration of their extreme ignorance of law, have
been exempted by imperial constitutions from the strict rules for the
execution of a testament which have been described. Neither the legal
number of witnesses, nor the observance of the other rules which have
been stated, is necessary to give force to their wills, provided, that
is to say, that they are made by them while on actual service; this
last qualification being a new though wise one introduced by our
constitution. Thus, in whatever mode a soldier's last wishes are
declared, whether in writing or orally, this is a binding will, by force
of his mere intention. At times, however, when they are not employed
on actual service, but are living at home or elsewhere, they are not
allowed to claim this privilege: they may make a will, even though they
be sons in power, in virtue of their service, but they must observe the
ordinary rules, and are bound by the forms which we described above as
requisite in the execution of wills of civilians.

1 Respecting the testaments of soldiers the Emperor Trajan sent a
rescript to Statilius Severus in the following terms: 'The privilege
allowed to soldiers of having their wills upheld, in whatever manner
they are made, must be understood to be limited by the necessity of
first proving that a will has been made at all; for a will can be made
without writing even by civilians. Accordingly, with reference to the
inheritance which is the subject of the action before you, if it can be
shown that the soldier who left it, did in the presence of witnesses,
collected expressly for this purpose, declare orally who he wished to be
his heir, and on what slaves he wished to confer liberty, it may well
be maintained that in this way he made an unwritten testament, and his
wishes therein declared ought to be carried out. But if, as is so common
in ordinary conversation, he said to some one, I make you my heir, or, I
leave you all my property, such expressions cannot be held to amount to
a testament, and the interest of the very soldiers, who are privileged
in the way described, is the principal ground for rejecting such a
precedent. For if it were admitted, it would be easy, after a soldier's
death, to procure witnesses to affirm that they had heard him say he
left his property to any one they pleased to name, and in this way it
would be impossible to discover the true intentions of the deceased.'

2 A soldier too may make a will though dumb and deaf.

3 This privilege, however, which we have said soldiers enjoy, is allowed
them by imperial constitutions only while they are engaged on actual
service, and in camp life. Consequently, if veterans wish to make a will
after their discharge, or if soldiers actually serving wish to do this
away from camp, they must observe the forms prescribed for all
citizens by the general law; and a testament executed in camp without
formalities, that is to say, not according to the form prescribed by
law, will remain valid only for one year after the testator's discharge.
Supposing then that the testator died within a year, but that a
condition, subject to which the heir was instituted, was not fulfilled
within the year, would it be feigned that the testator was a soldier at
the date of his decease, and the testament consequently upheld? and this
question we answer in the affirmative.

4 If a man, before going on actual service, makes an invalid will,
and then during a campaign opens it, and adds some new disposition, or
cancels one already made, or in some other way makes it clear that he
wishes it to be his testament, it must be pronounced valid, as being, in
fact, a new will made by the man as a soldier.

5 Finally, if a soldier is adrogated, or, being a son in power, is
emancipated, his previously executed will remains good by the fiction
of a new expression of his wishes as a soldier, and is not deemed to be
avoided by his loss of status.

6 It is, however, to be observed that earlier statutes and imperial
constitutions allowed to children in power in certain cases a civil
peculium after the analogy of the military peculium, which for that
reason was called quasimilitary, and of which some of them were
permitted to dispose by will even while under power. By an extension
of this principle our constitution has allowed all persons who have a
peculium of this special kind to dispose of it by will, though subject
to the ordinary forms of law. By a perusal of this constitution the
whole law relating to this privilege may be ascertained.




TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS

Certain persons are incapable of making a lawful will. For instance,
those in the power of others are so absolutely incapable that they
cannot make a testament even with the permission of their parents, with
the exception of those whom we have enumerated, and particularly of
children in power who are soldiers, and who are permitted by imperial
constitution to dispose by will of all they may acquire while on actual
service. This was allowed at first only to soldiers on active service,
by the authority of the Emperors Augustus and Nerva, and of the
illustrious Emperor Trajan; afterwards, it was extended by an enactment
of the Emperor Hadrian to veterans, that is, soldiers who had received
their discharge. Accordingly, if a son in power makes a will of his
military peculium, it will belong to the person whom he institutes
as heir: but if he dies intestate, leaving no children or brothers
surviving him, it will go to the parent in whose power he is, according
to the ordinary rule. From this it can be understood that a parent
has no power to deprive a son in his power of what he has acquired on
service, nor can the parent's creditors sell or otherwise touch it; and
when the parent dies it is not shared between the soldier's son and
his brothers, but belongs to him alone, although by the civil law the
peculium of a person in power is always reckoned as part of the property
of the parent, exactly as that of a slave is deemed part of the property
of his master, except of course such property of the son as by imperial
constitutions, and especially our own, the parent is unable to acquire
in absolute ownership. Consequently, if a son in power, not having a
military or quasimilitary peculium, makes a will, it is invalid, even
though he is released from power before his decease.

1 Again, a person under the age of puberty is incapable of making a
will, because he has no judgement, and so too is a lunatic, because he
has lost his reason; and it is immaterial that the one reaches the age
of puberty, and the other recovers his faculties, before his decease.
If, however, a lunatic makes a will during a lucid interval, the will
is deemed valid, and one is certainly valid which he made before he
lost his reason: for subsequent insanity never avoids a duly executed
testament or any other disposition validly made.

2 So too a spendthrift, who is interdicted from the management of his
own affairs, is incapable of making a valid will, though one made by him
before being so interdicted holds good.

3 The deaf, again, and the dumb cannot always make a will, though here
we are speaking not of persons merely hard of hearing, but of total
deafness, and similarly by a dumb person is meant one totally dumb, and
not one who merely speaks with difficulty; for it often happens that
even men of culture and learning by some cause or other lose the
faculties of speech and hearing. Hence relief has been afforded them by
our constitution, which enables them, in certain cases and in certain
modes therein specified, to make a will and other lawful dispositions.
If a man, after making his will, becomes deaf or dumb through ill health
or any other cause, it remains valid notwithstanding.

4 A blind man cannot make a will, except by observing the forms
introduced by a law of our imperial father Justin.

5 A will made by a prisoner while in captivity with the enemy is
invalid, even though he subsequently returns. One made, however,
while he was in his own state is valid, if he returns, by the law of
postliminium; if he dies in captivity it is valid by the lex Cornelia.




TITLE XIII. OF THE DISINHERISON OF CHILDREN

The law, however, is not completely satisfied by the observance of the
rules hereinbefore explained. A testator who has a son in his power must
take care either to institute him heir, or to specially disinherit him,
for passing him over in silence avoids the will; and this rule is so
strict, that even if the son die in the lifetime of the father no heir
can take under the will, because of its original nullity. As regards
daughters and other descendants of either sex by the male line, the
ancients did not observe this rule in all its strictness; for if these
persons were neither instituted nor disinherited, the will was not
avoided, but they were entitled to come in with the instituted heirs,
and to take a certain portion of the inheritance. And these persons the
ascendant was not obliged to specially disinherit; he could disinherit
them collectively by a general clause.

1 Special disinherison may be expressed in these terms--'Be Titius
my son disinherited,' or in these, 'Be my son disinherited,' without
inserting the name, supposing there is no other son. Children born
after the making of the will must also be either instituted heirs or
disinherited, and in this respect are similarly privileged, that if a
son or any other family heir, male or female, born after the making of
the will, be passed over in silence, the will, though originally valid,
is invalidated by the subsequent birth of the child, and so becomes
completely void. Consequently, if the woman from whom a child was
expected to have an abortive delivery, there is nothing to prevent the
instituted heirs from taking the inheritance. It was immaterial
whether the female family heirs born after the making of the will were
disinherited specially or by a general clause, but if the latter mode be
adopted, some legacy must be left them in order that they may not seem
to have been passed over merely through inadvertence: but male
family heirs born after the making of the will, sons and other lineal
descendants, are held not to be properly disinherited unless they are
disinherited specially, thus: 'Be any son that shall be born to me
disinherited.'

2 With children born after the making of the will are classed children
who succeed to the place of a family heir, and who thus, by an event
analogous to subsequent birth, become family heirs to an ancestor.
For instance, if a testator have a son, and by him a grandson or
granddaughter in his power, the son alone, being nearer in degree,
has the right of a family heir, although the grandchildren are in the
testator's power equally with him. But if the son die in the testator's
lifetime, or is in some other way released from his power, the
grandson and granddaughter succeed to his place, and thus, by a kind of
subsequent birth, acquire the rights of family heirs. To prevent this
subsequent avoidance of one's will, grandchildren by a son must be
either instituted heirs or disinherited, exactly as, to secure the
original validity of a testament, a son must be either instituted or
specially disinherited; for if the son die in the testator's lifetime,
the grandson and granddaughter take his place, and avoid the will just
as if they were children born after its execution. And this disinherison
was first allowed by the lex Iunia Vallaea, which explains the form
which is to be used, and which resembles that employed in disinheriting
family heirs born after the making of a will.

3 It is not necessary, by the civil law, to either institute or
disinherit emancipated children, because they are not family heirs. But
the praetor requires all, females as well as males, unless instituted,
to be disinherited, males specially, females collectively; and if they
are neither appointed heirs nor disinherited as described, the praetor
promises them possession of goods against the will.

4 Adopted children, so long as they are in the power of their adoptive
father, are in precisely the same legal position as children born
in lawful wedlock; consequently they must be either instituted or
disinherited according to the rules stated for the disinherison of
natural children. When, however, they have been emancipated by their
adoptive father, they are no longer regarded as his children either
by the civil law or by the praetor's edict. Conversely, in relation to
their natural father, so long as they remain in the adoptive family they
are strangers, so that he need neither institute nor disinherit them:
but when emancipated by their adoptive father, they have the same rights
in the succession to their natural father as they would have had if it
had been he by whom they were emancipated. Such was the law introduced
by our predecessors.

5 Deeming, however, that between the sexes, to each of which nature
assigns an equal share in perpetuating the race of man, there is in this
matter no real ground of distinction, and marking that, by the ancient
statute of the Twelve Tables, all were called equally to the succession
on the death of their ancestor intestate (which precedent the praetors
also seem to have subsequently followed), we have by our constitution
introduced a simple system of the same kind, applying uniformly to sons,
daughters, and other descendants by the male line, whether born before
or after the making of the will. This requires that all children,
whether family heirs or emancipated, shall be specially disinherited,
and declares that their pretermission shall have the effect of avoiding
the will of their parent, and depriving the instituted heirs of the
inheritance, no less than the pretermission of children who are family
heirs or who have been emancipated, whether already born, or born after,
though conceived before the making of the will. In respect of adoptive
children we have introduced a distinction, which is explained in our
constitution on adoptions.

6 If a soldier engaged on actual service makes a testament without
specially disinheriting his children, whether born before or after the
making of the will, but simply passing over them in silence, though he
knows that he has children, it is provided by imperial constitutions
that his silent pretermission of them shall be equivalent to special
disinherison.

7 A mother or maternal grandfather is not bound to institute her or his
children or grandchildren; they may simply omit them, for silence on the
part of a mother, or of a maternal grandfather or other ascendant, has
the same effect as actual disinherison by a father. For neither by the
civil law, nor by that part of the praetor's edict in which he promises
children who are passed over possession of goods against the will, is
a mother obliged to disinherit her son or daughter if she does not
institute them heirs, or a maternal grandfather to be equally precise
with reference to grandchildren by a daughter: though such children and
grandchildren, if omitted, have another remedy, which will shortly be
explained.




TITLE XIV. OF THE INSTITUTION OF THE HEIR

A man may institute as his heirs either free men or slaves, and either
his own slaves or those of another man. If he wished to institute
his own slave it was formerly necessary, according to the more common
opinion, that he should expressly give him his liberty in the will:
but now it is lawful, by our constitution, to institute one's own slave
without this express manumission--a change not due to any spirit of
innovation, but to a sense of equity, and one whose principle was
approved by Atilicinus, as it is stated by Seius in his books on
Masurius Sabinus and on Plautius. Among a testator's own slaves is to be
reckoned one of whom he is bare owner, the usufruct being vested in some
other person. There is, however, one case in which the institution of a
slave by his mistress is void, even though freedom be given him in
the will, as is provided by a constitution of the Emperors Severus and
Antoninus in these terms: 'Reason demands that no slave, accused of
criminal intercourse with his mistress, shall be capable of being
manumitted, before his sentence is pronounced, by the will of the woman
who is accused of participating in his guilt: accordingly if he be
instituted heir by that mistress, the institution is void.' Among 'other
persons' slaves' is reckoned one in whom the testator has a usufruct.

1 If a slave is instituted heir by his own master, and continues in that
condition until his master's decease, he becomes by the will both free,
and necessary heir. But if the testator himself manumits him in his
lifetime, he may use his own discretion about acceptance; for he is not
a necessary heir, because, though he is named heir to the testament, it
was not by that testament that he became free. If he has been alienated,
he must have the order of his new master to accept, and then his master
becomes heir through him, while he personally becomes neither heir nor
free, even though his freedom was expressly given him in the testament,
because by alienating him his former master is presumed to have
renounced the intention of enfranchising him. When another person's
slave is instituted heir, if he continues in the same condition he
must have the order of his master to accept; if alienated by him in
the testator's lifetime, or after the testator's death but before
acceptance, he must have the order of the alienee to accept; finally, if
manumitted in the testator's lifetime, or after the testator's death but
before acceptance, he may accept or not at his own discretion.

2 A slave who does not belong to the testator may be instituted heir
even after his master's decease, because slaves who belong to an
inheritance are capable of being instituted or made legatees; for an
inheritance not yet accepted represents not the future heir but the
person deceased. Similarly, the slave of a child conceived but not yet
born may be instituted heir.

3 If a slave belonging to two or more joint owners, both or all of whom
are legally capable of being made heirs or legatees, is instituted heir
by a stranger, he acquires the inheritance for each and all of the joint
owners by whose orders he accepts it in proportion to the respective
shares in which they own him.

4 A testator may institute either a single heir, or as many as he
pleases.

5 An inheritance is usually divided into twelve ounces, and is denoted
in the aggregate by the term as, and each fraction of this aggregate,
ranging from the ounce up to the as or pound, has its specific name, as
follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12),
semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6),
deunx (11/12), and as it is not necessary, however, that there
should always be twelve ounces, for for the purposes of testamentary
distribution an as may consist of as many ounces as the testator
pleases; for instance, if a testator institutes only a single heir,
but declares that he is to be heir ex semisse, or to one half of the
inheritance, this half will really be the whole, for no one can die
partly testate and partly intestate, except soldiers, in the carrying
out of whose wills the intention is the only thing regarded. Conversely,
a testator may divide his inheritance into as large a number of ounces
as he pleases.

6 If more heirs than one are instituted, it is unnecessary for the
testator to assign a specific share in the inheritance to each, unless
he intends that they shall not take in equal portions; for it is obvious
that if no shares are specified they divide the inheritance equally
between them. Supposing, however, that specific shares are assigned to
all the instituted heirs except one, who is left without any express
share at all, this last heir will be entitled to any fraction of the as
which has not been disposed of; and if there are two or more heirs
to whom no specific shares have been assigned, they will divide this
unassigned fraction equally between them. Finally, if the whole as has
been assigned in specific shares to some of the heirs, the one or more
who have no specific shares take half of the inheritance, while the
other half is divided among the rest according to the shares assigned to
them; and it is immaterial whether the heir who has no specified share
come first or last in the institution, or occupies some intermediate
place; for such share is presumed to be given to him as is not in some
other way disposed of.

7 Let us now see how the law stands if some part remains undisposed of,
and yet each heir has his share assigned to him--if, for instance
there are three heirs instituted, and each is assigned a quarter of the
inheritance. It is evident that in this case the part undisposed of will
go to them in proportion to the share each has assigned to him by
the will, and it will be exactly as if they had each been originally
instituted to a third. Conversely, if each heir is given so large a
fraction that the as will be exceeded, each must suffer a proportionate
abatement; thus if four heirs are instituted, and to each is assigned
a third of the inheritance, it will be the same as if each had been
originally instituted to a quarter.

8 If more than twelve ounces are distributed among some of the heirs
only, one being left without a specific share, he will have what is
wanting to complete the second as; and the same will be done if more
than twenty-four ounces are distributed, leaving him shareless; but all
these ideal sums are afterwards reduced to the single as, whatever be
the number of ounces they comprise.

9 The institution of the heir may be either absolute or conditional, but
no heir can be instituted from, or up to, some definite date, as, for
instance, in the following form--'be so and so my heir after five years
from my decease,' or 'after the calends of such a month,' or 'up to and
until such calends'; for a time limitation in a will is considered a
superfluity, and an heir instituted subject to such a time limitation is
treated as heir absolutely.

10 If the institution of an heir, a legacy, a fiduciary bequest, or a
testamentary manumission is made to depend on an impossible condition,
the condition is deemed unwritten, and the disposition absolute.

11 If an institution is made to depend on two or more conditions,
conjunctively expressed,--as, for instance, 'if this and that shall be
done'--all the conditions must be satisfied: if they are expressed
in the alternative, or disjunctively--as 'if this or that shall be
done'--it is enough if one of them alone is satisfied.

12 A testator may institute as his heir a person whom he has never seen,
for instance, nephews who have been born abroad and are unknown to him:
for want of this knowledge does not invalidate the institution.




TITLE XV. OF ORDINARY SUBSTITUTION

A testator may institute his heirs, if he pleases, in two or more
degrees, as, for instance, in the following form: 'If A shall not be
my heir, then let B be my heir'; and in this way he can make as many
substitutions as he likes, naming in the last place one of his own
slaves as necessary heir, in default of all others taking.

1 Several may be substituted in place of one, or one in place of
several, or to each heir may be substituted a new and distinct person,
or, finally, the instituted heirs may be substituted reciprocally in
place of one another.

2 If heirs who are instituted in equal shares are reciprocally
substituted to one another, and the shares which they are to have in
the substitution are not specified, it is presumed (as was settled by
a rescript of the Emperor Pius) that the testator intended them to take
the same shares in the substitution as they took directly under the
will.

3 If a third person is substituted to one heir who himself is
substituted to his coheir, the Emperors Severus and Antoninus decided
by rescript that this third person is entitled to the shares of both
without distinction.

4 If a testator institutes another man's slave, supposing him to be an
independent person, and substitutes Maevius in his place to meet the
case of his not taking the inheritance, then, if the slave accepts
by the order of his master, Maevius is entitled to a half. For, when
applied to a person whom the testator knows to be in the power of
another, the words 'if he shall not be my heir' are taken to mean 'if
he shall neither be heir himself nor cause another to be heir'; but when
applied to a person whom the testator supposes to be independent, they
mean 'if he shall not acquire the inheritance either for himself, or for
that person to whose power he shall subsequently become subject,' and
this was decided by Tiberius Caesar in the case of his slave Parthenius.




TITLE XVI. OF PUPILLARY SUBSTITUTION

To children below the age of puberty and in the power of the testator,
not only can such a substitute as we have described be appointed, that
is, one who shall take on their failing to inherit, but also one who
shall be their heir if, after inheriting, they die within the age of
puberty; and this may be done in the following terms, 'Be my son Titius
my heir; and if he does not become my heir, or, after becoming my heir,
die before becoming his own master (that is, before reaching puberty),
then be Seius my heir.' In which case, if the son fails to inherit,
the substitute is the heir of the testator; but if the son, after
inheriting, dies within the age of puberty, he is the heir of the son.
For it is a rule of customary law, that when our children are too young
to make wills for themselves, their parents may make them for them.

1 The reason of this rule has induced us to assert in our Code a
constitution, providing that if a testator has children, grandchildren,
or greatgrandchildren who are lunatics or idiots, he may, after the
analogy of pupillary substitution, substitute certain definite persons
to them, whatever their sex or the nearness of their relationship to
him, and even though they have reached the age of puberty; provided
always that on their recovering their faculties such substitution shall
at once become void, exactly as pupillary substitution proper ceases to
have any operation after the pupil has reached puberty.

2 Thus, in pupillary substitution effected in the form described, there
are, so to speak, two wills, the father's and the son's, just as if the
son had personally instituted an heir to himself; or rather, there is
one will dealing with two distinct matters, that is, with two distinct
inheritances.

3 If a testator be apprehensive that, after his own death, his son,
while still a pupil, may be exposed to the danger of foul play, because
another person is openly substituted to him, he ought to make the
ordinary substitution openly, and in the earlier part of the testament,
and write the other substitution, wherein a man is named heir on the
succession and death of the pupil, separately on the lower part of the
will; and this lower part he should tie with a separate cord and fasten
with a separate seal, and direct in the earlier part of the will that it
shall not be opened in the lifetime of the son before he attains the age
of puberty. Of course a substitution to a son under the age of puberty
is none the less valid because it is a integral part of the very will
in which the testator has instituted him his heir, though such an open
substitution may expose the pupil to the danger of foul play.

4 Not only when we leave our inheritance to children under the age
of puberty can we make such a substitution, that if they accept the
inheritance, and then die under that age, the substitute is their heir,
but we can do it when we disinherit them, so that whatever the pupil
acquires by way of inheritance, legacy or gift from his relatives or
friends, will pass to the substitute. What has been said of
substitution to children below the age of puberty, whether instituted or
disinherited, is true also of substitution to afterborn children.

5 In no case, however, may a man make a will for his children unless
he makes one also for himself; for the will of the pupil is but a
complementary part of the father's own testament; accordingly, if the
latter is void, the former will be void also.

6 Substitution may be made either to each child separately, or only to
such one of them as shall last die under the age of puberty. The first
is the proper plan, if the testator's intention is that none of them
shall die intestate: the second, if he wishes that, as among them, the
order of succession prescribed by the Twelve Tables shall be strictly
preserved.

7 The person substituted in the place of a child under the age of
puberty may be either named individually--for instance, Titius--or
generally prescribed, as by the words 'whoever shall be my heir'; in
which latter case, on the child dying under the age of puberty,
those are called to the inheritance by the substitution who have been
instituted heirs and have accepted, their shares in the substitution
being proportionate to the shares in which they succeeded the father.

8 This kind of substitution may be made to males up to the age of
fourteen, and to females up to that of twelve years; when this age is
once passed, the substitution becomes void.

9 To a stranger, or a child above the age of puberty whom a man has
instituted heir, he cannot appoint a substitute to succeed him if he
take and die within a certain time: he has only the power to bind him by
a trust to convey the inheritance to another either wholly or in part;
the law relating to which subject will be explained in its proper place.




TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID

A duly executed testament remains valid until either revoked or
rescinded.

1 A will is revoked when, though the civil condition of the testator
remains unaltered, the legal force of the will itself is destroyed, as
happens when, after making his will, a man adopts as his son either an
independent person, in which case the adoption is effected by imperial
decree, or a person already in power, when it is done through the agency
of the praetor according to our constitution. In both these cases the
will is revoked, precisely as it would be by the subsequent birth of a
family heir.

2 Again, a subsequent will duly executed is a revocation of a prior
will, and it makes no difference whether an heir ever actually takes
under it or not; the only question is whether one might conceivably have
done so. Accordingly, whether the person instituted declines to be heir,
or dies in the lifetime of the testator, or after his death but before
accepting the inheritance, or is excluded by failure of the condition
under which he was instituted--in all the cases the testator dies
intestate; for the earlier will is revoked by the later one, and the
later one is inoperative, as no heir takes under it.

3 If, after duly making one will, a man executes a second one which is
equally valid, the Emperors Severus and Antoninus decided by rescript
that the first is revoked by the second, even though the heir instituted
in the second is instituted to certain things only. The terms of this
enactment we have ordered to be inserted here, because it contains
another provision. 'The Emperors Severus and Antoninus to Cocceius
Campanus. A second will, although the heir named therein be instituted
to certain things only, is just as valid as if no mention of the things
had been made: but the heir is bound to content himself with the things
given him, or with such further portion of the inheritance as will make
up the fourth part to which he is entitled under the lex Falcidia, and
(subject thereto) to transfer the inheritance to the persons instituted
in the earlier will: for the words inserted in the later will
undoubtedly contain the expression of a wish that the earlier one shall
remain valid.' This accordingly is a mode in which a testament may be
revoked.

4 There is another event by which a will duly executed may be
invalidated, namely, the testator's undergoing a loss of status: how
this may happen was explained in the preceding Book.

5 In this case the will may be said to be rescinded, though both those
that are revoked, and those that are not duly executed, may be said to
become or be rescinded; and similarly too those which are duly executed
but subsequently rescinded by loss of status may be said to be revoked.
However, as it is convenient that different grounds of invalidity should
have different names to distinguish them, we say that some wills are
unduly executed from the commencement, while others which are duly
executed are either revoked or rescinded.

6 Wills, however, which, though duly executed, are subsequently
rescinded by the testator's undergoing loss of status are not altogether
inoperative: for if the seals of seven witnesses are attached, the
instituted heir is entitled to demand possession in accordance with the
will, if only the testator were a citizen of Rome and independent at
the time of his decease; but if the cause of the rescission was
the testator's subsequent loss of citizenship or of freedom, or his
adoption, and he dies an alien, or slave, or subject to his adoptive
father's power, the instituted heir is barred from demanding possession
in accordance with the will.

7 The mere desire of a testator that a will which he has executed shall
no longer have any validity is not, by itself, sufficient to avoid
it; so that, even if he begins to make a later will, which he does not
complete because he either dies first, or changes his mind, the first
will remains good; it being provided in an address of the Emperor
Pertinax to the Senate that one testament which is duly executed is not
revoked by a later one which is not duly and completely executed; for an
incomplete will is undoubtedly null.

8 In the same address the Emperor declared that he would accept no
inheritance to which he was made heir on account of a suit between the
testator and some third person, nor would he uphold a will in which he
was instituted in order to screen some legal defect in its execution,
or accept an inheritance to which he was instituted merely by word of
mouth, or take any testamentary benefit under a document defective in
point of law. And there are numerous rescripts of the Emperors Severus
and Antoninus to the same purpose: 'for though,' they say, 'the laws do
not bind us, yet we live in obedience to them.'




TITLE XVIII. OF AN UNDUTEOUS WILL

Inasmuch as the disinherison or omission by parents of their children
has generally no good reason, those children who complain that they have
been wrongfully disinherited or passed over have been allowed to bring
an action impeaching the will as unduteous, under the pretext that the
testator was of unsound mind at the time of its execution. This does
not mean that he was really insane, but that the will, though legally
executed, bears no mark of that affection to which a child is entitled
from a parent: for if a testator is really insane, his will is void.

1 Parents may impeach the wills of their children as unduteous, as well
as children those of their parents. Brothers and sisters of the testator
are by imperial constitutions preferred to infamous persons who are
instituted to their exclusion, so that it is in these cases only that
they can bring this action. Persons related to the testator in a further
degree than as brothers or sisters can in no case bring the action, or
at any rate succeed in it when brought.

2 Children fully adopted, in accordance with the distinction drawn in
our constitution, can bring this action as well as natural children, but
neither can do so unless there is no other mode in which they can obtain
the property of the deceased: for those who can obtain the inheritance
wholly or in part by any other title are barred from attacking a will as
unduteous. Afterborn children too can employ this remedy, if they can by
no other means recover the inheritance.

3 That they may bring the action must be understood to mean, that
they may bring it only if absolutely nothing has been left them by the
testator in his will: a restriction introduced by our constitution out
of respect for a father's natural rights. If, however, a part of the
inheritance, however small, or even a single thing is left them, the
will cannot be impeached, but the heir must, if necessary, make up what
is given them to a fourth of what they would have taken had the testator
died intestate, even though the will does not direct that this fourth is
to be made up by the assessment of an honest and reliable man.

4 If a guardian accepts, under his own father's will, a legacy on behalf
of the pupil under his charge, the father having left nothing to him
personally, he is in no way debarred from impeaching his father's will
as unduteous on his own account.

5 On the other hand, if he impeaches the will of his pupil's father on
the pupil's behalf, because nothing has been left to the latter, and is
defeated in the action, he does not lose a legacy given in the same will
to himself personally.

6 Accordingly, that a person may be barred from the action impeaching
the will, it is requisite that he should have a fourth of what he would
have taken on intestacy, either as heir, legatee direct or fiduciary,
donee in contemplation of death, by gift from the testator in his
lifetime (though gift of this latter kind bars the action only if made
under any of the circumstances mentioned in our constitution) or in any
of the other modes stated in the imperial legislation.

7 In what we have said of the fourth we must be understood to mean that
whether there be one person only, or more than one, who can impeach the
will as unduteous, onefourth of the whole inheritance may be given them,
to be divided among them all proportionately, that is to say, to each
person a fourth of what he would have had if the testator had died
intestate.




TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS

Heirs are of three kinds, that is to say, they are either necessary,
family heirs and necessary, or external.

1 A necessary heir is a slave of the testator, whom he institutes as
heir: and he is so named because, willing or unwilling, and without
any alternative, he becomes free and necessary heir immediately on the
testator's decease. For when a man's affairs are embarrassed, it is
common for one of his slaves to be instituted in his will, either in
the first place, or as a substitute in the second or any later place, so
that, if the creditors are not paid in full, the heir may be insolvent
rather than the testator, and his property, rather than the testator's,
may be sold by the creditors and divided among them. To balance this
disadvantage he has this advantage, that his acquisitions after the
testator's decease are for his own sole benefit; and although the estate
of the deceased is insufficient to pay the creditors in full, the heir's
subsequent acquisitions are never on that account liable to a second
sale.

2 Heirs who are both family heirs and necessary are such as a son or a
daughter, a grandchild by a son, and further similar lineal descendants,
provided that they are in the ancestor's power at the time of his
decease. To make a grandson or granddaughter a family heir it is,
however, not sufficient for them to be in the grandfather's power at
the moment of his decease: it is further requisite that their own father
shall, in the lifetime of the grandfather, have ceased to be the family
heir himself, whether by death or by any other mode of release from
power: for by this event the grandson and granddaughter succeed to the
place of their father. They are called family heirs, because they are
heirs of the house, and even in the lifetime of the parent are to a
certain extent deemed owners of the inheritance: wherefore in intestacy
the first right of succession belongs to the children. They are called
necessary heirs because they have no alternative, but, willing or
unwilling, both where there is a will and where there is not, they
become heirs. The praetor, however, permits them, if they wish, to
abstain from the inheritance, and leave the parent to become insolvent
rather than themselves.

3 Those who are not subject to the testator's power are called external
heirs. Thus children of ours who are not in our power, if instituted
heirs by us, are deemed external heirs; and children instituted by their
mother belong to this class, because women never have children in
their power. Slaves instituted heirs by their masters, and manumitted
subsequently to the execution of the will, belong to the same class.

4 It is necessary that external heirs should have testamentary capacity,
whether it is an independent person, or some one in his power, who is
instituted: and this capacity is required at two times; at the same time
of the making of the will, when, without it, the institution would be
void; and at the same time of the testator's decease, when, without
it, the institution would have no effect. Moreover, the instituted
heir ought to have this capacity also at the time when he accepts
the inheritance, whether he is instituted absolutely or subject to a
condition; and indeed it is especially at this time that his capacity to
take ought to be looked to. If, however, the instituted heir undergoes
a loss of status in the interval between the making of the will and
the testator's decease, or the satisfaction of the condition subject to
which he was instituted, he is not thereby prejudiced: for, as we
said, there are only three points of time which have to be regarded.
Testamentary capacity thus does not mean merely capacity to make a will;
it also means capacity to take for oneself, or for the father or master
in whose power one is, under the will of another person: and this latter
kind of testamentary capacity is quite independent of the capacity to
make a will oneself. Accordingly, even lunatics, deaf persons, afterborn
children, infants, children in power, and other persons' slaves are said
to have testamentary capacity; for though they cannot make a valid will,
they can acquire for themselves or for another under a will made by
someone else.

5 External heirs have the privilege of deliberating whether they will
accept or disclaim an inheritance. But if a person who is entitled
to disclaim interferes with the inheritance, or if one who has the
privilege of deliberation accepts it, he no longer has the power of
relinquishing it, unless he is a minor under the age of twentyfive
years, for minors obtain relief from the praetor when they incautiously
accept a disadvantageous inheritance, as well as when they take any
other injudicious step.

6 It is, however, to be observed that the Emperor Hadrian once relieved
even a person who had attained his majority, when, after his accepting
the inheritance, a great debt, unknown at the time of acceptance, had
come to light. This was but the bestowal of an especial favour on
a single individual; the Emperor Gordian subsequently extended the
privilege, but only to soldiers, to whom it was granted as a class. We,
however, in our benevolence have placed this benefit within the reach of
all our subjects, and drafted a constitution as just as it is splendid,
under which, if heirs will but observe its terms, they can accept an
inheritance without being liable to creditors and legatees beyond the
value of the property. Thus so far as their liability is concerned there
is no need for them to deliberate on acceptance, unless they fail to
observe the procedure of our constitution, and prefer deliberation, by
which they will remain liable to all the risks of acceptance under the
older law.

7 An external heir, whether his right accrue to him under a will or
under the civil law of intestate succession, can take the inheritance
either by acting as heir, or by the mere intention to accept. By acting
as heir is mean, for instance, using things belonging to the inheritance
as one's own, or selling them, or cultivating or giving leases of the
deceased's estates, provided only one expresses in any way whatsoever,
by deed or word, one's intention to accept the inheritance, so long as
one knows that the person with whose property one is thus dealing has
died testate or intestate, and that one is that person's heir. To act as
heir, in fact, is to act as owner, and the ancients often used the term
'heir' as equivalent to the term 'owner.' And just as the mere intention
to accept makes an external heir heir, so too the mere determination not
to accept bars him from the inheritance. Nothing prevents a person who
is born deaf or dumb, or who becomes so after birth, from acting as heir
and thus acquiring the inheritance, provided only he knows what he is
doing.




TITLE XX. OF LEGACIES

Let us now examine legacies:--a kind of title which seems foreign to
the matter at hand, for we are expounding titles whereby aggregates of
rights are acquired; but as we have treated in full of wills and heirs
appointed by will, it was natural in close connexion therewith to
consider this mode of acquisition.

1 Now a legacy is a kind of gift left by a person deceased;

2 and formerly they were of four kinds, namely, legacy by vindication,
by condemnation, by permission, and by preception, to each of which a
definite form of words was appropriated by which it was known, and which
served to distinguish it from legacies of the other kinds. Solemn
forms of words of this sort, however, have been altogether abolished by
imperial constitutions; and we, desiring to give greater effect to the
wishes of deceased persons, and to interpret their expressions with
reference rather to those wishes than to their strict literal meaning,
have issued a constitution, composed after great reflection, enacting
that in future there shall be but one kind of legacy, and that, whatever
be the terms in which the bequest is couched, the legatee may sue for
it no less by real or hypothecary than by personal action. How carefully
and wisely this constitution is worded may be ascertained by a perusal
of its contents.

3 We have determined, however, to go even beyond this enactment; for,
observing that the ancients subjected legacies to strict rules, while
the rules which they applied to fiduciary bequests, as springing more
directly from the deceased person's wishes, were more liberal, we have
deemed it necessary to assimilate the former completely to the latter,
so that any future features in which legacies are inferior to fiduciary
bequests may be supplied to them from the latter, and the latter
themselves may in future possess any superiority which has hitherto
been enjoyed by legacies only. In order, however, to avoid perplexing
students in their first essays in the law by discussing these two forms
of bequests together, we have thought it worth while to treat them
separately, dealing first with legacies, and then with fiduciary
bequests, so that the reader, having first learnt their respective
natures in a separate treatment, may, when his legal education is more
advanced, be able easily to comprehend their treatment in combination.

4 A legacy may be given not only of things belonging to the testator
or heir, but also of things belonging to a third person, the heir being
bound by the will to buy and deliver them to the legatee, or to give him
their value if the owner is unwilling to sell them. If the thing given
be one of those of which private ownership is impossible, such, for
instance, as the Campus Martius, a basilica, a church, or a thing
devoted to public use, not even its value can be claimed, for the legacy
is void. In saying that a thing belonging to a third person may be given
as a legacy we must be understood to mean that this may be done if the
deceased knew that it belonged to a third person, and not if he was
ignorant of this: for perhaps he would never have given the legacy if
he had known that the thing belonged neither to him nor to the heir, and
there is a rescript of the Emperor Pius to this effect. It is also the
better opinion that the plaintiff, that is the legatee, must prove that
the deceased knew he was giving as a legacy a thing which was not his
own, rather than that the heir must prove the contradictory: for the
general rule of law is that the burden of proof lies on the plaintiff.

5 If the thing which a testator bequests is in pledge to a creditor,
the heir is obliged to redeem it, subject to the same distinction as has
been drawn with reference to a legacy of a thing not belonging to
the testator; that is to say, the heir is bound to redeem only if the
deceased knew the thing to be in pledge: and the Emperors Severus and
Antoninus have decided this by rescript. If, however, the deceased
expresses his intention that the legatee should redeem the thing
himself, the heir is under no obligation to do it for him.

6 If a legacy is given of a thing belonging to another person, and the
legatee becomes its owner during the testator's lifetime by purchase,
he can obtain its value from the heir by action on the will: but if he
gives no consideration for it, that is to say, gets it by way of gift or
by some similar title, he cannot sue; for it is settled law that where
a man has already got a thing, giving no consideration in return, he
cannot get its value by a second title of the same kind. Accordingly, if
a man is entitled to claim a thing under each of two distinct wills, it
is material whether he gets the thing, or merely its value, under the
earlier one: for if he gets the thing itself, he cannot sue under
the second will, because he already has the thing without giving any
consideration, whereas he has a good right of action if he has merely
got its value.

7 A thing which does not yet exist, but will exist, may be validly
bequeathed:--for instance, the produce of such and such land, or the
child of such and such female slave.

8 If the same thing is given as a legacy to two persons, whether jointly
or severally, and both claim it, each is entitled to only a half; if one
of them does not claim it, because either he does not care for it, or
has died in the testator's lifetime, or for some other reason, the whole
goes to his colegatee. A joint legacy is given in such words as the
following: 'I give and bequeath my slave Stichus to Titius and Seius': a
several legacy thus, 'I give and bequeath my slave Stichus to Titius: I
give and bequeath Stichus to Seius': and even if the testator says 'the
same slave Stichus' the legacy is still a several one.

9 If land be bequeathed which belongs to some one other than the
testator, and the intended legatee, after purchasing the bare ownership
therein, obtains the usufruct without consideration, and then sues under
the will, Julian says that this action for the land is well grounded,
because in a real action for land a usufruct is regarded merely as a
servitude; but it is part of the duty of the judge to deduct the value
of the usufruct from the sum which he directs to be paid as the value of
the land.

10 A legacy by which something already belonging to the legatee is given
him is void, for what is his own already cannot become more his own
than it is: and even though he alienates it before the testator's death,
neither it nor its value can be claimed.

11 If a testator bequeaths something belonging to him, but which he
thought belonged to another person, the legacy is good, for its validity
depends not on what he thought, but on the real facts of the case: and
it is clearly good if he thought it already belonged to the legatee,
because his expressed wish can thus be carried out.

12 If, after making his will, a testator alienates property which he has
therein given away as a legacy, Celsus is of opinion that the legatee
may still claim it unless the testator's intention was thereby to
revoke the bequest, and there is a rescript of the Emperors Severus
and Antoninus to this effect, as well as another which decides that
if, after making his will, a testator pledges land which he had therein
given as a legacy, the part which has not been alienated can in any case
be claimed, and the alienated part as well if the alienator's intention
was not to revoke the legacy.

13 If a man bequeaths to his debtor a discharge from his debt, the
legacy is good, and the testator's heir cannot sue either the debtor
himself, or his heir, or any one who occupies the position of heir to
him, and the debtor can even compel the testator's heir to formally
release him. Moreover, a testator can also forbid his heir to claim
payment of a debt before a certain time has elapsed.

14 Contrariwise, if a debtor leaves his creditor a legacy of what he
owes him, the legacy is void, if it includes no more than the debt,
for the creditor is thus in no way benefited; but if the debtor
unconditionally bequeaths a sum of money which the creditor cannot claim
until a definite date has arrived or a condition has been satisfied, the
legacy is good, because it confers on the creditor a right to earlier
payment. And, even if the day arrives, or the condition is satisfied,
during the testator's lifetime, Papinian decides, and rightly, that
the legacy is nevertheless a good one, because it was good when first
written; for the opinion that a legacy becomes void, because something
happens to deprive it of all material effect, is now rejected.

15 If a man leaves his wife a legacy of her dowry, the gift is good,
because the legacy is worth more than a mere right of action for the
dowry. If, however, he has never received the dowry which he bequeaths,
the Emperors Severus and Antoninus have decided by rescript that the
legacy is void, provided the general term 'dowry' is used, but good,
if in giving it to the wife a definite sum or thing is specified, or
described generally by reference to the dowry deed.

16 If a thing bequeathed perishes through no act of the heir, the loss
falls on the legatee: thus if a slave belonging to another person, who
is given in this way, is manumitted through no act of the heir, the
latter is not bound. If, however, the slave belongs to the heir, who
manumits him, Julian says that he is bound, and it is immaterial whether
he knew or not that the slave had been bequeathed away from him.

17 If a testator gives a legacy of female slaves along with their
offspring, the legatee can claim the latter even if the mothers are
dead, and so again if a legacy is given of ordinary slaves along with
their vicarii or subordinates, the latter can be claimed even if
the former are dead. But if the legacy be of a slave along with his
peculium, and the slave is dead, or has been manumitted or alienated,
the legacy of the peculium is extinguished; and similarly, if the legacy
be of land with everything upon it, or with all its instruments of
tillage, by the alienation of the land the legacy of the instruments of
tillage is extinguished.

18 If a flock be given as a legacy, which is subsequently reduced to a
single sheep, this single survivor can be claimed; and Julian says that
in a legacy of a flock are comprised sheep which are added to it after
the making of the will, a flock being but one aggregate composed of
distinct members, just as a house is but one aggregate composed of
distinct stones built together. So if the legacy consists of a house,
we hold that pillars or marbles added to it after the making of the will
pass under the bequest.

20 If a slave's peculium be given as a legacy, the legatee undoubtedly
profits by what is added to it, and is a loser by what is taken from
it, during the testator's lifetime. Whatever the slave acquires in
the interval between the testator's death and the acceptance of the
inheritance belongs, according to Julian, to the legatee, if that
legatee be the slave himself who is manumitted by the will, because a
legacy of this kind vests from the acceptance of the inheritance: but
if the legatee be a stranger, he is not entitled to such acquisitions,
unless they are made by means of the peculium itself. A slave manumitted
by a will is not entitled to his peculium unless it is expressly
bequeathed to him, though, if the master manumits him in his lifetime,
it is enough if it be not expressly taken from him, and to this effect
the Emperors Severus and Antoninus have decided by rescript: as also,
that a legacy of his peculium to a slave does not carry with it the
right to sue for money which he has expended on his master's account,
and that a legacy of a peculium may be inferred from directions in a
will that a slave is to be free so soon as he has made a statement of
his accounts and made up any balance, which may be against him, from his
peculium.

21 Incorporeal as well as corporeal things can be bequeathed: thus a man
can leave a legacy even of a debt which is owed to him, and the heir can
be compelled to transfer to the legatee his rights of action, unless the
testator has exacted payment in his lifetime, in which case the legacy
is extinguished. Again, such a legacy as the following is good: 'be my
heir bound to repair so and so's house, or to pay so and so's debts.'

22 If a legacy be a general one, as of a slave or some other thing not
specifically determined, the legatee is entitled to choose what slave,
or what thing, he will have, unless the testator has expressed a
contrary intention.

23 A legacy of selection, that is, when a testator directs the legatee
to select one from among his slaves, or any other class of things, was
held to be given subject to an implied condition that the legatee should
make the choice in person; so that if he died before doing so the legacy
did not pass to his heir. By our constitution, however, we have made an
improvement in this matter, and allowed the legatee's heir to exercise
the right of selection, although the legatee has not done so personally
in his lifetime; which enactment, through our careful attention to
the subject, contains the further provision, that if there are either
several colegatees to whom a right of selection has been bequeathed,
and who cannot agree in their choice, or several coheirs of a single
legatee, who differ through some wishing to choose this thing and others
that, the question shall be decided by fortune--the legacy not being
extinguished, which many of the jurists in an ungenerous spirit wished
to make the rule--; that is to say, that lots shall be drawn, and he on
whom the lot falls shall have a priority of choice over the rest.

24 Three persons only can be legatees who have testamentary capacity,
that is, who are legally capable of taking under a will.

25 Formerly it was not allowed to leave either legacies or fiduciary
bequests to uncertain persons, and even soldiers, as the Emperor Hadrian
decided by rescript, were unable to benefit uncertain persons in this
way. An uncertain person was held to be one of whom the testator had
no certain conception, as the legatee in the following form: 'Whoever
bestows his daughter in marriage on my son, do thou, my heir, give him
such or such land.' So too a legacy left to the first consuls designate
after the writing of the will was held to be given to an uncertain
person, and many others that might be instanced: and so it was held that
freedom could not be bequeathed to an uncertain person, because it was
settled that slaves ought to be enfranchised by name, and an uncertain
person could not be appointed guardian. But a legacy given with a
certain demonstration, that is, to an uncertain member of a certain
class, was valid, for instance, the following: 'Whoever of all my
kindred now alive shall first marry my daughter, do thou, my heir,
give him such and such thing.' It was, however, provided by imperial
constitutions that legacies or fiduciary bequests left to uncertain
persons and paid by mistake could not be recovered back.

26 An afterborn stranger again could not take a legacy; an afterborn
stranger being one who on his birth will not be a family heir to the
testator; thus a grandson by an emancipated son was held to be an
afterborn stranger to his grandfather.

27 These parts of the law, however, have not been left without due
alteration, a constitution having been inserted in our Code by which
we have in these respects amended the rules relating to legacies and
fiduciary bequests no less than to inheritances, as will be made clear
by a perusal of the enactment, which, however, still maintains the old
rule that an uncertain person cannot be appointed guardian: for when a
testator is appointing a guardian for his issue, he ought to be quite
clear as to the person and character of the party he selects.

28 An afterborn stranger could and still can be instituted heir, unless
conceived of a woman who cannot by law be a man's wife.

29 If a testator makes a mistake in any of the names of the legatee, the
legacy is nevertheless valid provided there is no doubt as to the person
he intended, and the same rule is very properly observed as to heirs as
well as legatees; for names are used only to distinguish persons, and
if the person can be ascertained in other ways a mistake in the name is
immaterial.

30 Closely akin to this rule is another, namely, that an erroneous
description of the thing bequeathed does not invalidate the bequest;
for instance, if a testator says, 'I give and bequeath Stichus my born
slave,' the legacy is good, if it quite clear who is meant by Stichus,
even though it turn out that he was not born the testator's slave, but
was purchased by him. Similarly, if he describe Stichus as 'the slave
I bought from Seius,' whereas in fact he bought him from some one else,
the legacy is good, if it is clear what slave he intended to give.

31 Still less is a legacy invalidated from a wrong motive being assigned
by the testator for giving it: if, for instance, he says, 'I give and
bequeath Stichus to Titius, because he looked after my affairs while I
was away,' or 'because I was acquitted on a capital charge through his
undertaking my defence,' the legacy is still good, although in point of
fact Titius never did look after the testator's affairs, or never did,
through his advocacy, procure his acquittal. But the law is different
if the testator expresses his motive in the guise of a condition, as: 'I
give and bequeath such and such land to Titius, if he has looked after
my affairs.' 32 It is questioned whether a legacy to a slave of the
heir is valid. It is clear that such a legacy is void if given
unconditionally, even though the slave ceases to belong to the heir
during the testator's lifetime: for a legacy which would be void if
the testator died immediately after making his will ought not to become
valid by the simple fact of the testator's living longer. Such a legacy,
however, is good if given subject to a condition, the question then
being, whether at the vesting of the legacy the slave has ceased to
belong to the heir.

33 On the other hand, there is no doubt that even an absolute legacy
to the master of a slave who is instituted heir is good: for, even
supposing that the testator dies immediately after making the will, the
right to the legacy does not necessarily belong to the person who is
heir; for the inheritance and the legacy are separable, and a different
person from the legatee may become heir through the slave; as happens
if, before the slave accepts the inheritance at his master's bidding,
he is conveyed to another person, or is manumitted and thus becomes heir
himself; in both of which cases the legacy is valid. But if he remains
in the same condition, and accepts at his master's bidding, the legacy
is extinguished.

34 A legacy given before an heir was appointed was formerly void,
because a will derives its operation from the appointment of an heir,
and accordingly such appointment is deemed the beginning and foundation
of the whole testament, and for the same reason a slave could not be
enfranchised before an heir was appointed. Yet even the old lawyers
themselves disapproved of sacrificing the real intentions of the
testator by too strictly following the order of the writing: and we
accordingly have deemed these rules unreasonable, and amended them by
our constitution, which permits a legacy, and much more freedom, which
is always more favoured, to be given before the appointment of an heir,
or in the middle of the appointments, if there are several.

35 Again, a legacy to take effect after the death of the heir or
legatee, as in the form: 'After my heir's death I give and bequeath,'
was formerly void, as also was one to take effect on the day preceding
the death of the heir or legatee. This too, however, we have corrected,
by making such legacies as valid as they would be were they fiduciary
bequests, lest in this point the latter should be found to have some
superiority over the former.

36 Formerly too the gift, revocation, and transference of legacies by
way of penalty was void. A penal legacy is one given in order to coerce
the heir into doing or not doing something; for instance, the following:
'If my heir gives his daughter in marriage to Titius,' or, conversely,
'if he does not give her in marriage to Titius, let him pay ten aurei
to Seius'; or again, 'if my heir parts with my slave Stichus,' or,
conversely, 'if he does not part with him, let him pay ten aurei to
Titius.' And so strictly was this rule observed, that it is declared
in a large number of imperial constitutions that even the Emperor will
accept no legacy by which a penalty is imposed on some other person: and
such legacies were void even when given by a soldier's will, in which
as a rule so much trouble was taken to carry out exactly the testator's
wishes. Moreover, Sabinus was of opinion that a penal appointment of a
coheir was void, as exemplified in the following: 'Be Titius my heir: if
Titius gives his daughter in marriage to Seius, be Seius my heir also';
the ground of the invalidity being that it made no difference in what
way Titius was constrained, whether by a legacy being left away from
him, or by some one being appointed coheir. Of these refinements,
however, we disapproved, and have consequently enacted generally
that bequests, even though given, revoked, or transferred in order to
penalize the heir, shall be treated exactly like other legacies, except
where the event on which the penal legacy is contingent is either
impossible, illegal, or immoral: for such testamentary dispositions as
these the opinion of my times will not permit.




TITLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES

Legacies may be revoked either in a later clause of the will or by
codicils, and the revocation may be made either in words contrary
to those of the gift, as the gift thus 'I give and bequeath,' the
revocation thus 'I do not give and bequeath,' or in words not contrary,
that is to say, in any words whatsoever.

1 A legacy may also be transferred from one person to another, as thus:
'I give and bequeath to Seius the slave Stichus whom I. bequeathed to
Titius,' and this may be done either by a later clause of the will or by
codicils; the result being that the legacy is taken away from Titius and
simultaneously given to Seius.




TITLE XXII. OF THE LEX FALCIDIA

We have finally to consider the lex Falcidia, the most recent enactment
limiting the amount which can be given in legacies. The statute of the
Twelve Tables had conferred complete liberty of bequest on testators, by
which they were enabled to give away their whole patrimony in legacies,
that statute having enacted: 'let a man's testamentary disposition of
his property be regarded as valid.' This complete liberty of bequest,
however, it was thought proper to limit in the interest of testators
themselves, for intestacy was becoming common through the refusal of
instituted heirs to accept inheritances from which they received
little or no advantage at all. The lex Furia and the lex Voconia
were enactments designed to remedy the evil, but as both were found
inadequate to the purpose, the lex Falcidia was finally passed,
providing that no testator should be allowed to dispose of more than
three-quarters of his property in legacies, or in other words, that
whether there was a single heir instituted, or two or more, he or they
should always be entitled to at least a quarter of the inheritance.

1 If two heirs, say Titius and Seius, are instituted, and Titius's share
of the inheritance is either wholly exhausted in legacies specifically
charged thereon, or burdened beyond the limit fixed by the statute,
while no legacies at all are charged on Seius, or at any rate legacies
which exhaust it only to the extent of one half or less, the question
arose whether, as Seius has at least a quarter of the whole inheritance,
Titius was or was not entitled to retain anything out of the legacies
which had been charged upon him: and it was settled that he could keep
an entire fourth of his share of the inheritance; for the calculation
of the lex Falcidia is to be applied separately to the share of each of
several heirs in the inheritance.

2 The amount of the property upon which the calculation is brought to
bear is its amount at the moment of the testator's decease. Thus, to
illustrate by an example, a testator who is worth a hundred aurei at his
decease gives the whole hundred away in legacies: here, if before the
heir accepts, the inheritance is so much augmented through slaves who
belong to it, or by births of children from such of them as are females,
or by the young of cattle that, even after paying away a hundred aurei
in legacies, the heir will still have a clear fourth of the inheritance,
the legatee's position is in no way improved, but a quarter of the
sum given in legacies may still be deducted for himself by the heir.
Conversely, if only seventyfive aurei are given in legacies, and before
acceptance the inheritance is so much diminished in value, say by
fire, shipwreck, or death of slaves, that no more or even less than
seventyfive aurei are left, the legatees can claim payment of their
legacies in full. In this latter case, however, the heir is not
prejudiced, for he is quite free to refused the inheritance:
consequently, the legatees must come to terms with him, and content
themselves with a portion of their legacies, lest they lose all through
no one's taking under the will.

3 When the calculation of the lex Falcidia is made, the testator's debts
and funeral expenses are first deducted, and the value of slaves whom he
has manumitted in the will or directed to be manumitted is not reckoned
as part of the inheritance; the residue is then divided so as to leave
the heirs a clear fourth, the other three quarters being distributed
among the legatees in proportion to the amount of the legacies given
them respectively in the will. Thus, if we suppose four hundred aurei
to have been given in legacies, and the value of the inheritance, out
of which they are to be paid, to be exactly that sum, each legatee must
have his legacy abated by onefourth; if three hundred and fifty have
been given in legacies, each legacy will be diminished by one-eighth; if
five hundred, first a fifth, then a fourth, must be deducted: for
when the amount given in legacies actually exceeds the sum of the
inheritance, there must be struck off first the excess, and then the
share which the heir is entitled to retain.




TITLE XXIII. OF TRUST INHERITANCES

We now proceed to fiduciary bequests or trusts; and let us begin with
trust inheritances.

1 Legacies or inheritances given by trust had originally no binding
legal force, because no one could be compelled against his will to do
what he was merely asked to do. As there were certain classes of persons
to whom testators were unable to leave inheritances or legacies, when
they wished to effect these objects they used to trust to the good faith
of some one who had this kind of testamentary capacity, and whom
they asked to give the inheritance, or the legacy, to the intended
beneficiary; hence the name 'trusts,' because they were not enforced
by legal obligation, but only by the transferor's sense of honesty.
Subsequently the Emperor Augustus, either out of regard for various
favourites of his own, or because the request was said to have been made
in the name of the Emperor's safety, or moved thereto by individual
and glaring cases of perfidy, commanded the consuls in certain cases to
enforce the duty by their authority. And this being deemed equitable,
and being approved by the people, there was gradually developed a new
and permanent jurisdiction, and trusts became so popular that soon a
special praetor was appointed to hear suits relating to them, who was
called the trust praetor.

2 The first requisite is an heir directly instituted, in trust to
transfer the inheritance to another, for the will is void without an
instituted heir in the first instance. Accordingly, when a testator has
written: 'Lucius Titius, be thou my heir,' he may add: 'I request you,
Lucius Titius, as soon as you can accept my inheritance, to convey and
transfer it to Gaius Seius'; or he can request him to transfer a part.
So a trust may be either absolute or conditional, and to be performed
either immediately or on a specified future day.

3 After the transfer of the inheritance the transferor continues heir,
the transferee being sometimes regarded as quasi-heir, sometimes as
quasi-legatee.

4 But during the reign of Nero, in the consulate of Trebellius Maximus
and Annaeus Seneca, a senatusconsult was passed providing that, when
an inheritance is transferred in pursuance of a trust, all the actions
which the civil law allows to be brought by or against the heir shall be
maintainable by and against the transferee: and after this enactment the
praetor used to give indirect or fictitious actions to and against the
transferee as quasiheir.

5 However, as the instituted heirs, when (as so often was the case)
they were requested to transfer the whole or nearly the whole of an
inheritance, declined to accept for what was no benefit, or at most a
very slight benefit, to themselves, and this caused a failure of the
trusts, afterwards, in the time of the Emperor Vespasian, and during the
consulate of Pegasus and Pusio, the senate decreed that an heir who
was requested to transfer the inheritance should have the same right
to retain a fourth thereof as the lex Falcidia gives to an heir charged
with the payment of legacies, and gave a similar right of retaining the
fourth of any specific thing left in trust. After the passing of this
senatusconsult the heir, wherever it came into operation, was sole
administrator, and the transferee of the residue was in the position of
a partiary legatee, that is, of a legatee of a certain specified portion
of the estate under the kind of bequest called participation, so that
the stipulations which had been usual between an heir and a partiary
legatee were now entered into by the heir and transferee, in order to
secure a rateable division of the gains and losses arising out of the
inheritance.

6 Accordingly, after this, if no more than threefourths of the
inheritance was in trust to be transferred, then the SC. Trebellianum
governed the transfer, and both were liable to be sued for the debts
of the inheritance in rateable portions, the heir by civil law,
the transferee, as quasiheir, by that enactment. But if more than
threefourths, or even the whole was left in trust to be transferred, the
SC. Pegasianum came into operation, and when once the heir had accepted,
of course voluntarily, he was the sole administrator whether he retained
onefourth or declined to retain it: but if he did, he entered into
stipulations with the transferee similar to those usual between the heir
and a partiary legatee, while if he did not, but transferred the whole
inheritance, he covenanted with him as quasi-purchaser. If an instituted
heir refuse to accept an inheritance from a suspicion that the
liabilities exceed the assets, it is provided by the SC. Pegasianum
that, on the petition of the person to whom he is requested to transfer,
he shall be ordered by the praetor to accept and transfer it, whereupon
the transferee shall be as capable of suing and being sued as the
transferee under the SC. Trebellianum. In this case no stipulations are
necessary, because by a concurrent operation of the two senatusconsults
both the transferor is protected, and all actions relating to the
inheritance pass to and against the transferee.

7 As, however, the covenants which had become necessary through the SC.
Pegasianum were disliked even by the older lawyers, and are in certain
cases considered injurious by the eminent jurist Papinian, and it being
our desire that our statute book should be clear and simple rather than
complicated, we have, after placing these two senatusconsults side by
side and examining their points of resemblance and difference, resolved
to repeal the SC. Pegasianum, as the later enactment, and to give
exclusive authority to the SC. Trebellianum, under which in future
all trust inheritances are to be transferred, whether the testator has
freely given his heir a fourth of the property, or more or less, or even
nothing at all: provided always, that when the heir has either nothing
or less than a fourth, it shall be lawful for him, under our authority
expressed in this statute, to retain a fourth, or to recover it by
action if he has already paid it over, the heir and the transferee being
capable both of suing and being sued in proportion to their shares in
the inheritance, after the analogy of the SC. Trebellianum; and provided
also, that if the heir voluntarily transfers the whole inheritance, the
transferee shall be able to sue and be sued on all actions relating to
the inheritance whatsoever. Moreover, we have transferred to the SC.
Trebellianum the leading provision of the SC. Pegasianum, whereby it was
enacted that when an instituted heir refused to accept an inheritance
offered to him, he could be compelled to accept and transfer the whole
inheritance if the intended transferee so desired, and that all actions
should pass to and against the latter: so that it is under the SC.
Trebellianum alone that the heir, if unwilling to accept, is now obliged
to do so, if the intended transferee desire the inheritance, though to
him personally no loss or profit can accrue under the transaction.

8 It makes no difference whether it is a sole or part heir who is under
a trust to another, or whether what he is requested to transfer is the
whole or only a part of that to which he is heir; for we direct that the
same rules shall be applied in the case of a part being transferred as
we have said are observed in the transference of a whole inheritance.

9 If the request addressed to the heir is to transfer the inheritance
after deducting or reserving some specific thing which is equal in value
to a fourth part thereof, such as land or anything else, the conveyance
will be made under the SC. Trebellianum, exactly as if he had been
asked after retaining a fourth part of the inheritance to transfer the
residue. There is, however, some difference between the two cases; for
in the first, where the inheritance is transferred after deducting or
reserving some specific thing, the senatusconsult has the effect of
making the transferee the only person who can sue or be sued in respect
of the inheritance, and the part retained by the heir is free from all
encumbrances, exactly as if he had received it under a legacy; whereas
in the second, where the heir, after retaining a fourth part of the
inheritance, transfers the rest as requested, the actions are divided,
the transferee being able to sue and be sued in respect of threefourths
of the inheritance, and the heir in respect of the rest. Moreover, if
the heir is requested to transfer the inheritance after deducting or
reserving only a single specific thing, which, however, in value is
equivalent to the greater part of the inheritance, the transferee is
still the only person who can sue and be sued, so that he ought well
to weigh whether it is worth his while to take it: and the case is
precisely the same, whether what the heir is directed to deduct or
reserve before transferring is two or more specific things, or a
definite sum which in fact is equivalent to a fourth or even the greater
part of the inheritance. What we have said of a sole heir is equally
true of one who is instituted only to a part.

10 Moreover, a man about to die intestate can charge the person to whom
he knows his property will go by either the civil or praetorian law to
transfer to some one else either his whole inheritance, or a part of it,
or some specific thing, such as land, a slave, or money: but legacies
have no validity unless given by will.

11 The transferee may himself be charged by the deceased with a trust
to transfer to some other person either the whole or a part of what he
receives, or even something different.

12 As has been already observed, trusts in their origin depended solely
on the good faith of the heir, from which early history they derived
both their name and their character: and it was for that reason that the
Emperor Augustus made them legally binding obligations. And we, in
our desire to surpass that prince, have recently made a constitution,
suggested by a matter brought before us by the eminent Tribonian,
quaestor of our sacred palace, by which it is enacted, that if a
testator charges his heir with a trust to transfer the whole inheritance
or some specific thing, and the trust cannot be proved by writing or
by the evidence of five witnesses--five being, as is known, the number
required by law for the proof of oral trusts--through there having been
fewer witnesses than five, or even none at all, and if the heir, whether
it be his own son or some one else whom the testator has chosen to
trust, and by whom he desired the transfer to be made, perfidiously
refuses to execute the trust, and in fact denies that he was ever
charged with it, the alleged beneficiary, having previously sworn to his
own good faith, may put the heir upon his oath: whereupon the heir may
be compelled to swear that no trust was ever charged upon him, or, in
default, to transfer the inheritance or the specific thing, as the case
may be, in order that the last wishes of the testator, the fulfilment
of which he has left to the honour of his heir, may not be defeated. We
have also prescribed the same procedure where the person charged with a
trust is a legatee or already himself a transferee under a prior trust.
Finally, if the person charged admits the trust, but tries to shelter
himself behind legal technicalities, he may most certainly be compelled
to perform his obligation.




TITLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS

Single things can be left in trust as well as inheritances; land, for
instance, slaves, clothing, gold, silver, and coined money; and the
trust may be imposed either on an heir or on a legatee, although a
legatee cannot be charged with a legacy.

1 Not only the testator's property, but that of an heir, or legatee, or
person already benefited by a trust, or any one else may be given by
a trust. Thus a legatee, or a person in whose favour the testator has
already created a trust, may be asked to transfer either a thing left
to him, or any other thing belonging to himself or a stranger, provided
always that he is not charged with a trust to transfer more than he
takes by the will, for in respect of such excess the trust would be
void. When a person is charged by a trust to transfer a thing belonging
to some one else, he must either purchase and deliver it, or pay its
value.

2 Liberty can be left to a slave by a trust charging an heir, legatee,
or other person already benefited by a trust of the testator's, with
his manumission, and it makes no difference whether the slave is the
property of the testator, of the heir, of the legatee or of a stranger:
for a stranger's slave must be purchased and manumitted; and on his
master's refusal to sell (which refusal is allowable only if the master
has taken nothing under the will) the trust to enfranchise the slave is
not extinguished, as though its execution had become impossible, but its
execution is merely postponed; because it may become possible to free
him at some future time, whenever an opportunity of purchasing him
presents itself. A trust of manumission makes the slave the freedman,
not of the testator, though he may have been his owner, but of the
manumitter, whereas a direct bequest of liberty makes a slave the
freedman of the testator, whence too he is called 'orcinus.' But a
direct bequest of liberty can be made only to a slave who belongs to the
testator both at the time of making his will and at that of his decease;
and by a direct bequest of liberty is to be understood the case where
the testator desires him to become free in virtue, as it were, of his
own testament alone, and so does not ask some one else to manumit him.

3 The words most commonly used to create a trust are I beg, I. request,
I wish, I commission, I trust to your good faith; and they are just as
binding when used separately as when united.




TITLE XXV. OF CODICILS

It is certain that codicils were not in use before the time of Augustus,
for Lucius Lentulus, who was also the originator of trusts, was the
first to introduce them, in the following manner. Being on the point of
death in Africa, he executed codicils, confirmed by his will, by which
he begged Augustus to do something for him as a trust; and on the
Emperor's fulfilling his wishes, other persons followed the precedent
and discharged trusts created in this manner, and the daughter of
Lentulus paid legacies which could not have been legally claimed from
her. It is said that Augustus called a council of certain jurists, among
them Trebatius, who at that time enjoyed the highest reputation, and
asked them whether the new usage could be sanctioned, or did not rather
run counter to the received principles of law, and that Trebatius
recommended their admission, remarking 'how convenient and even
necessary the practice was to citizens,' owing to the length of the
journeys which were taken in those early days, and upon which a man
might often be able to make codicils when he could not make a will.
And subsequently, after codicils had been made by Labeo, nobody doubted
their complete validity.

1 Not only can codicils be made after a will, but a man dying intestate
can create trusts by codicils, though Papinian says that codicils
executed before a will are invalid unless confirmed by a later express
declaration that they shall be binding. But a rescript of the Emperors
Severus and Antoninus decides that the performance of a trust imposed
by codicils written before a will may in any case be demanded, if it
appears that the testator had not abandoned the intention expressed in
them.

2 An inheritance can neither be given nor taken away by codicils, nor,
accordingly, can a child be disinherited in this way: for, if it were
otherwise, the law of wills and of codicils would be confounded. By this
it is meant that an inheritance cannot directly be given or taken away
by codicils; for indirectly, by means of a trust, one can very well
be given in this manner. Nor again can a condition be imposed on an
instituted heir, or a direct substitution be effected, by codicils.

3 A man can make any number of codicils, and no solemnities are required
for their execution.




BOOK III.




TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY

A man is said to die intestate who either has made no will at all, or
has made one which is invalid, or if one which has been duly executed
has been subsequently revoked, or rescinded, or finally, if no one
accepts as heir under the testament.

1 The inheritances of intestate persons go first, by the statute of the
Twelve Tables, to family heirs;

2 and family heirs, as we said above, are those who were in the power
of the deceased at the time of his death, such as a son or daughter, a
grandchild by a son, or a greatgrandchild by such grandchild if a male,
and this whether the relationship be natural or adoptive. Among them
must also be reckoned children who, though not born in lawful wedlock,
have been inscribed members of the curia according to the tenor of the
imperial constitutions relating to them, and thus acquire the rights of
family heirs, or who come within the terms of our constitutions by which
we have enacted that, if any one shall cohabit with a woman whom he
might have lawfully married, but for whom he did not at first feel
marital affection, and shall after begetting children by her begin to
feel such affection and formally marry her, and then have by her sons or
daughters, not only shall those be lawful children and in their father's
power who were born after the settlement of the dowry, but also
those born before, to whom in reality the later born ones owed their
legitimacy; and we have provided that this rule shall hold even though
no children are born after the execution of the dowry deed, or if,
having been born, they are dead. It is to be observed, however, that a
grandchild or greatgrandchild is not a family heir, unless the person in
the preceding degree has ceased to be in the power of the parent, either
through having died, or by some other means, such as emancipation; for
if at the time of a man's decease a son is in his power, a grandson by
that son cannot be a family heir, and the case is exactly the same with
more remote descendants. Children too who are born after the ancestor's
death, and who would have been in his power had they been born during
his lifetime, are family heirs.

3 Family heirs succeed even though ignorant of their title, and they
can take upon an intestacy even though insane, because whenever the law
vests property in a person, even when he is ignorant of his title, it
equally vests it in him if insane. Thus, immediately on the parent's
death, the ownership is as it were continued without any break, so that
pupils who are family heirs do not require their guardian's sanction in
order to succeed, for inheritances go to such heirs even though ignorant
of their title; and similarly an insane family heir does not require his
curator's consent in order to succeed, but takes by operation of law.

4 Sometimes, however, a family heir succeeds in this way to his parent,
even though not in the latter's power at the time of his decease, as
where a person returns from captivity after his father's death, this
being the effect of the law of postliminium.

5 And sometimes conversely a man is not a family heir although in the
power of the deceased at the time of his death, as where the latter
after his death is adjudged to have been guilty of treason, and his
memory is thereby branded with infamy: such a person is unable to have a
family heir, for his property is confiscated to the treasury, though one
who would otherwise have succeeded him may be said to have in law been a
family heir, and ceased to be such.

6 Where there is a son or daughter, and a grandchild by another son,
these are called together to the inheritance, nor does the nearer in
degree exclude the more remote, for it seems just that grandchildren
should represent their father and take his place in the succession.
Similarly a grandchild by a son, and a greatgrandchild by a grandson
are called to the inheritance together. And as it was thought just that
grandchildren and greatgrandchildren should represent their father, it
seemed consistent that the inheritance should be divided by the number
of stems, and not by the number of individuals, so that a son should
take onehalf, and grandchildren by another son the other: or, if two
sons left children, that a single grandchild, or two grandchildren by
one son, should take onehalf, and three or four grandchildren by the
other son the other.

7 In ascertaining whether, in any particular case, so and so is a family
heir, one ought to regard only that moment of time at which it first was
certain that the deceased died intestate, including hereunder the
case of no one's accepting under the will. For instance, if a son be
disinherited and a stranger instituted heir, and the son die after the
decease of his father, but before it is certain that the heir instituted
in the will either will not or cannot take the inheritance, a grandson
will take as family heir to his grandfather, because he is the only
descendant in existence when first it is certain that the ancestor died
intestate; and of this there can be no doubt.

8 A grandson born after, though conceived before, his grandfather's
death, whose father dies in the interval between the grandfather's
decease and desertion of the latter's will through failure of the
instituted heir to take, is family heir to his grandfather; though it is
obvious that if (other circumstances remaining the same) he is conceived
as well as born after the grandfather's decease, he is no family heir,
because he was never connected with his grandfather by any tie of
relationship; exactly as a person adopted by an emancipated son is
not among the children of, and therefore cannot be family heir to, the
latter's father. And such persons, not being children in relation to
the inheritance, cannot apply either for possession of the goods of the
deceased as next of kin. So much for family heirs.

9 As to emancipated children, they have, by the civil law, no rights to
succeed to an intestate; for having ceased to be in the power of their
parent, they are not family heirs, nor are they called by any other
title in the statute of the Twelve Tables. The praetor, however,
following natural equity, gives them possession of the goods of the
deceased merely as children, exactly as if they had been in his power
at the time of his death, and this whether they stand alone or whether
there are family heirs as well. Consequently, if a man die leaving two
children, one emancipated, and the other in his power at the time of
his decease, the latter is sole heir by the civil law, as being the
only family heir; but through the former's being admitted to part of the
inheritance by the indulgence of the praetor, the family heir becomes
heir to part of the inheritance only.

10 Emancipated children, however, who have given themselves in adoption
are not thus admitted, under the title of children, to share the
property of their natural father, if at the time of his decease they are
in their adoptive family; though it is otherwise if they are emancipated
during his lifetime by their adoptive father, for then they are admitted
as if they had been emancipated by him and had never been in an adoptive
family, while, conversely, as regards their adoptive father, they are
henceforth regarded as strangers. If, however, they are emancipated
by the adoptive after the death of the natural father, as regards the
former they are strangers all the same, and yet do not acquire the rank
of children as regards succession to the property of the latter; the
reason of this rule being the injustice of putting it within the power
of an adoptive father to determine to whom the property of the natural
father shall belong, whether to his children or to his agnates.

11 Adoptive are thus not so well off as natural children in respect of
rights of succession: for by the indulgence of the praetor the latter
retain their rank as children even after emancipation, although they
lose it by the civil law; while the former, if emancipated, are not
assisted even by the praetor. And there is nothing wrong in their
being thus differently treated, because civil changes can affect rights
annexed to a civil title, but not rights annexed to a natural title,
and natural descendants, though on emancipation they cease to be family
heirs, cannot cease to be children or grandchildren; whereas on
the other hand adoptive children are regarded as strangers after
emancipation, because they lose the title and name of son or daughter,
which they have acquired by a civil change, namely adoption, by another
civil change, namely emancipation.

12 And the rule is the same in the possession of goods against the will
which the praetor promises to children who are passed over in their
parent's testament, that is to say, are neither instituted nor duly
disinherited; for the praetor calls to this possession children who were
in their parent's power at the time of his decease, or emancipated, but
excludes those who at that time were in an adoptive family: still less
does he here admit adoptive children emancipated by their adoptive
father, for by emancipation they cease entirely to be children of his.

13 We should observe, however, that though children who are in an
adoptive family, or who are emancipated by their adoptive after the
decease of their natural father, are not admitted on the death of the
latter intestate by that part of the edict by which children are called
to the possession of goods, they are called by another part, namely that
which admits the cognates of the deceased, who, however, come in only
if there are no family heirs, emancipated children, or agnates to take
before them: for the praetor prefers children, whether family heirs
or emancipated, to all other claimants, ranking in the second degree
statutory successors, and in the third cognates, or next of kin.

14 All these rules, however, which to our predecessors were sufficient,
have received some emendation by the constitution which we have enacted
relative to persons who have been given in adoption to others by
their natural fathers; for we found cases in which sons by entering
an adoptive family forfeited their right of succeeding their natural
parents, and then, the tie of adoption being easily broken by
emancipation, lost all title to succeed their adoptive parents as well.
We have corrected this, in our usual manner, by a constitution which
enacts that, when a natural father gives his son in adoption to another
person, the son's rights shall remain the same in every particular as
if he had continued in the power of his natural father, and the adoption
had never taken place, except only that he shall be able to succeed his
adoptive father should he die intestate. If, however, the latter makes
a will, the son cannot obtain any part of the inheritance either by the
civil or by the praetorian law, that is to say, either by impeaching the
will as unduteous or by applying for possession against the will; for,
being related by no tie of blood, the adoptive father is not bound
either to institute him heir or to disinherit him, even though he has
been adopted, in accordance with the SC. Afinianum, from among three
brothers; for, even under these circumstances, he is not entitled to a
fourth of what he might have taken on intestacy, nor has he any action
for its recovery. We have, however, by our constitution excepted persons
adopted by natural ascendants, for between them and their adopters there
is the natural tie of blood as well as the civil tie of adoption, and
therefore in this case we have preserved the older law, as also in that
of an independent person giving himself in adrogation: all of which
enactment can be gathered in its special details from the tenor of the
aforesaid constitution.

15 By the ancient law too, which favoured the descent through males,
those grandchildren only were called as family heirs, and preferred to
agnates, who were related to the grandfather in this way: grandchildren
by daughters, and greatgrandchildren by granddaughters, whom it regarded
only as cognates, being called after the agnates in succession to
their maternal grandfather or greatgrandfather, or their grandmother or
greatgrandmother, whether paternal or maternal. But the Emperors would
not allow so unnatural a wrong to endure without sufficient correction,
and accordingly, as people are, and are called, grandchildren and
greatgrandchildren of a person whether they trace their descent through
males or through females, they placed them altogether in the same rank
and order of succession. In order, however, to bestow some privilege on
those who had in their favour the provisions of the ancient law as
well as natural right, they determined that grandchildren,
greatgrandchildren, and others who traced their descent through a female
should have their portion of the inheritance diminished by receiving
less by onethird than their mother or grandmother would have taken,
or than their father or grandfather, paternal or maternal, when the
deceased, whose inheritance was in question, was a woman; and they
excluded the agnates, if such descendants claimed the inheritance, even
though they stood alone. Thus, exactly as the statute of the Twelve
Tables calls the grandchildren and greatgrandchildren to represent their
deceased father in the succession to their grandfather, so the imperial
legislation substitutes them for their deceased mother or grandmother,
subject to the aforesaid deduction of a third part of the share which
she personally would have taken.

16 As, however, there was still some question as to the relative rights
of such grandchildren and of the agnates, who on the authority of a
certain constitution claimed a fourth part of the deceased's estate, we
have repealed the said enactment, and not permitted its insertion in
our Code from that of Theodosius. By the constitution which we have
published, and by which we have altogether deprived it of validity,
we have provided that in case of the survival of grandchildren by
a daughter, greatgrandchildren by a granddaughter, or more remote
descendants related through a female, the agnates shall have no claim to
any part of the estate of the deceased, that collaterals may no longer
be preferred to lineal descendants; which constitution we hereby reenact
with all its force from the date originally determined: provided always,
as we direct, that the inheritance shall be divided between sons and
grandchildren by a daughter, or between all the grandchildren, and other
more remote descendants, according to stocks, and not by counting heads,
on the principle observed by the ancient law in dividing an inheritance
between sons and grandchildren by a son, the issue obtaining without
any diminution the portion which would have belonged to their mother or
father, grandmother or grandfather: so that if, for instance, there be
one or two children by one stock, and three or four by another, the
one or two, and the three or four, shall together take respectively one
moiety of the inheritance.




TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES

If there is no family heir, nor any of those persons called to the
succession along with family heirs by the praetor or the imperial
legislation, to take the inheritance in any way, it devolves, by the
statute of the Twelve Tables, on the nearest agnate.

1 Agnates, as we have observed in the first book, are those cognates
who trace their relationship through males, or, in other words, who are
cognate through their respective fathers. Thus, brothers by the same
father are agnates, whether by the same mother or not, and are called
'consanguinei'; an uncle is agnate to his brother's son, and vice
versa; and the children of brothers by the same father, who are called
'consobrini, are one another's agnates, so that it is easy to arrive at
various degrees of agnation. Children who are born after their father's
decease acquire the rights of kinship exactly as if they had been born
before that event. But the law does not give the inheritance to all the
agnates, but only to those who were nearest in degree at the moment when
it was first certain that the deceased died intestate.

2 The relation of agnation can also be established by adoption, for
instance, between a man's own sons and those whom he has adopted, all
of whom are properly called consanguinei in relation to one another.
So, too, if your brother, or your paternal uncle, or even a more remote
agnate, adopts any one, that person undoubtedly becomes one of your
agnates.

3 Male agnates have reciprocal rights of succession, however remote the
degree of relationship: but the rule as regards females, on the other
hand, was that they could not succeed as agnates to any one more
remotely related to them than a brother, while they themselves could
be succeeded by their male agnates, however distant the connexion: thus
you, if a male, could take the inheritance of a daughter either of your
brother or of your paternal uncle, or of your paternal aunt, but she
could not take yours; the reason of this distinction being the seeming
expediency of successions devolving as much as possible on males. But as
it was most unjust that such females should be as completely excluded
as if they were strangers, the praetor admits them to the possession of
goods promised in that part of the edict in which mere natural kinship
is recognised as a title to succession, under which they take provided
there is no agnate, or other cognate of a nearer degree of relationship.
Now these distinctions were in no way due to the statute of the Twelve
Tables, which, with the simplicity proper to all legislation, conferred
reciprocal rights of succession on all agnates alike, whether males
or females, and excluded no degree by reason merely of its remoteness,
after the analogy of family heirs; but it was introduced by the jurists
who came between the Twelve Tables and the imperial legislation, and who
with their legal subtleties and refinements excluded females other
than sisters altogether from agnatic succession. And no other scheme of
succession was in those times heard of, until the praetors, by gradually
mitigating to the best of their ability the harshness of the civil law,
or by filling up voids in the old system, provided through their edicts
a new one. Mere cognation was thus in its various degrees recognised
as a title to succession, and the praetors gave relief to such females
through the possession of goods, which they promised to them in that
part of the edict by which cognates are called to the succession. We,
however, have followed the Twelve Tables in this department of law,
and adhered to their principles: and, while we commend the praetors for
their sense of equity, we cannot hold that their remedy was adequate;
for when the degree of natural relationship was the same, and when the
civil title of agnation was conferred by the older law on males and
females alike, why should males be allowed to succeed all their agnates,
and women (except sisters) be debarred from succeeding any? Accordingly,
we have restored the old rules in their integrity, and made the law on
this subject an exact copy of the Twelve Tables, by enacting, in our
constitution, that all 'statutory' successors, that is, persons tracing
their descent from the deceased through males, shall be called alike
to the succession as agnates on an intestacy, whether they be males or
females, according to their proximity of degree; and that no females
shall be excluded on the pretence that none but sisters have the right
of succeeding by the title of kinship.

4 By an addition to the same enactment we have deemed it right to
transfer one, though only one, degree of cognates into the ranks of
those who succeed by a statutory title, in order that not only the
children of a brother may be called, as we have just explained, to the
succession of their paternal uncle, but that the children of a sister
too, even though only of the half blood on either side (but not her more
remote descendants), may share with the former the inheritance of their
uncle; so that, on the decease of a man who is paternal uncle to his
brother's children, and maternal uncle to those of his sister, the
nephews and nieces on either side will now succeed him alike, provided,
of course, that the brother and sister do not survive, exactly as if
they all traced their relationship through males, and thus all had a
statutory title. But if the deceased leaves brothers and sisters who
accept the inheritance, the remoter degrees are altogether excluded,
the division in this case being made individually, that is to say, by
counting heads, not stocks.

5 If there are several degrees of agnates, the statute of the Twelve
Tables clearly calls only the nearest, so that if, for instance, the
deceased leaves a brother, and a nephew by another brother deceased, or
a paternal uncle, the brother is preferred. And although that statute,
in speaking of the nearest agnate, uses the singular number, there is
no doubt that if there are several of the same degree they are all
admitted: for though properly one can speak of 'the nearest degree'
only when there are several, yet it is certain that even though all the
agnates are in the same degree the inheritance belongs to them.

6 If a man dies without having made a will at all, the agnate who takes
is the one who was nearest at the time of the death of the deceased. But
when a man dies, having made a will, the agnate who takes (if one is
to take at all) is the one who is nearest when first it becomes certain
that no one will accept the inheritance under the testament; for until
that moment the deceased cannot properly be said to have died intestate
at all, and this period of uncertainty is sometimes a long one, so that
it not unfrequently happens that through the death, during it, of a
nearer agnate, another becomes nearest who was not so at the death of
the testator.

7 In agnatic succession the established rule was that the right of
accepting the inheritance could not pass from a nearer to a more remote
degree; in other words, that if the nearest agnate, who, as we have
described, is called to the inheritance, either refuses it or dies
before acceptance, the agnates of the next grade have no claim to
admittance under the Twelve Tables. This hard rule again the praetors
did not leave entirely without correction, though their remedy, which
consisted in the admission of such persons, since they were excluded
from the rights of agnation, in the rank of cognates, was inadequate.
But we, in our desire to have the law as complete as possible, have
enacted in the constitution which in our clemency we have issued
respecting the rights of patrons, that in agnatic succession the
transference of the rights to accept from a nearer to a remoter degree
shall not be refused: for it was most absurd that agnates should
be denied a privilege which the praetor had conferred on cognates,
especially as the burden of guardianship fell on the second degree of
agnates if there was a failure of the first, the principle which we have
now sanctioned being admitted so far as it imposed burdens, but rejected
so far as it conferred a boon.

8 To statutory succession the ascendant too is none the less called who
emancipates a child, grandchild, or remoter descendant under a
fiduciary agreement, which by our constitution is now implied in every
emancipation. Among the ancients the rule was different, for the parent
acquired no rights of succession unless he had entered into a special
agreement of trust to that effect prior to the emancipation.




TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM

So strict were the rules of the statute of the Twelve Tables in
preferring the issue of males, and excluding those who traced their
relationship through females, that they did not confer reciprocal rights
of inheritance even on a mother and her children, though the praetors
called them to succeed one another as next of kin by promising them the
possession of goods in the class of cognates.

1 But this narrowness of the law was afterwards amended, the Emperor
Claudius being the first to confer on a mother, as a consolation for the
loss of her children, a statutory right to their inheritance,

2 and afterwards, very full provisions were made by the SC.
Tertullianum, enacted in the time of the Emperor Hadrian, and relating
to the melancholy succession of children by their mothers, though not
by their grandmothers, whereby it was provided that a freeborn woman who
had three or a freedwoman who had four children should be entitled to
succeed to the goods of her children who died intestate, even though
herself under paternal power; though, in this latter case, she cannot
accept the inheritance except by the direction of the person in whose
power she is.

3 Children of the deceased who are or who rank as family heirs, whether
in the first or any other degree, are preferred to the mother, and even
where the deceased is a woman her children by imperial constitutions
have a prior claim to the mother, that is, to their own grandmother.
Again, the father of the deceased is preferred to the mother, but not
so the paternal grandfather or greatgrandfather, at least when it is
between them only that the question arises who is entitled. A brother by
the same father excluded the mother from the succession to both sons
and daughters, but a sister by the same father came in equally with the
mother; and where there were both a brother and a sister by the same
father, as well as a mother who was entitled by number of children,
the brother excluded the mother, and divided the inheritance in equal
moieties with the sister.

4 By a constitution, however, which we have placed in the Code made
illustrious by our name, we have deemed it right to afford relief to the
mother, in consideration of natural justice, of the pains of childbirth,
and of the danger and even death which mothers often incur in this
manner; for which reason we have judged it a sin that they should be
prejudiced by a circumstance which is entirely fortuitous. For if a
freeborn woman had not borne three, or a freedwoman four children, she
was undeservedly defrauded of the succession to her own offspring;
and yet what fault had she committed in bearing few rather than many
children? Accordingly, we have conferred on mothers a full statutory
right of succession to their children, and even if they have had no
other child than the one in question deceased.

5 The earlier constitutions, in their review of statutory rights of
succession, were in some points favourable, in others unfavourable,
to mothers; thus in some cases they did not call them to the whole
inheritance of their children, but deducted a third in favour of certain
other persons with a statutory title, while in others they did exactly
the opposite. We, however, have determined to follow a straightforward
and simple path, and, preferring the mother to all other persons with a
statutory title, to give her the entire succession of her sons, without
deduction in favour of any other persons except a brother or sister,
whether by the same father as the deceased, or possessing rights of
cognation only; so that, as we have preferred the mother to all with
a statutory title, so we call to the inheritance, along with her, all
brothers and sisters of the deceased, whether statutorily entitled or
not: provided that, if the only surviving relatives of the deceased
are sisters, agnatic or cognatic, and a mother, the latter shall have
onehalf, and all the sisters together the other half of the inheritance;
if a mother and a brother or brothers, with or without sisters agnatic
or cognatic, the inheritance shall be divided among mother, brothers,
and sisters in equal portions.

6 But, while we are legislating for mothers, we ought also to bestow
some thought on their offspring; and accordingly mothers should
observe that if they do not apply within a year for guardians for their
children, either originally or in lieu of those who have been removed or
excused, they will forfeit their title to succeed such children if they
die under the age of puberty.

7 A mother can succeed her child under the SC. Tertullianum even though
the child be illegitimate.




TITLE IV. OF THE SENATUSCONSULTUM ORFITIANUM

Conversely, children were admitted to succeed their mother on her death
intestate by the SC. Orfitianum, passed in the time of the Emperor
Marcus, when Orfitus and Rufus were consuls: by which a statutory right
of succession was conferred on both sons and daughters, even though in
the power of another, in preference to their deceased mother's brothers
and sisters and other agnates.

1 As, however, grandsons were not called by this senatusconsult with a
statutory title to the succession of their grandmothers,

2 this was subsequently amended by imperial constitutions, providing
that grandchildren should be called to inherit exactly like children. It
is to be observed that rights of succession such as those conferred
by the SC. Tertullianum and Orfitianum are not extinguished by loss of
status, owing to the rule that rights of succession conferred by later
statutes are not destroyed in this way, but only such as are conferred
by the statute of the Twelve Tables;

3 and finally that under the latter of these two enactments even
illegitimate children are admitted to their mother's inheritance.

4 If there are several heirs with a statutory title, some of whom do
not accept, or are prevented from doing so by death or some other cause,
their shares accrue in equal proportions to those who do accept the
inheritance, or to their heirs, supposing they die before the failure of
the others to take.




TITLE V. OF THE SUCCESSION OF COGNATES

After family heirs, and persons who by the praetor and the imperial
legislation are ranked as such, and after persons statutorily entitled,
among whom are the agnates and those whom the aforesaid senatusconsults
and our constitution have raised to the rank of agnates, the praetor
calls the nearest cognates.

1 In this class or order natural or blood relationship alone is
considered: for agnates who have undergone loss of status and their
children, though not regarded as having a statutory title under the
statute of the Twelve Tables, are called by the praetor in the
third order of the succession. The sole exceptions to this rule are
emancipated brothers and sisters, though not in equal shares with them,
but with some deduction, the amount of which can easily be ascertained
from the terms of the constitution itself. But to other agnates of
remoter degrees, even though they have not undergone loss of status, and
still more to cognates, they are preferred by the aforesaid statute.

2 Again, collateral relations connected with the deceased only by the
female line are called to the succession by the praetor in the third
order as cognates;

3 and children who are in an adoptive family are admitted in this order
to the inheritance of their natural parent.

4 It is clear that illegitimate children can have no agnates, for in
law they have no father, and it is through the father that agnatic
relationship is traced, while cognatic relationship is traced through
the mother as well. On the same principle they cannot be held to be
consanguinei of one another, for consanguinei are in a way agnatically
related: consequently, they are connected with one another only as
cognates, and in the same way too with the cognates of their mother.
Accordingly, they can succeed to the possession of goods under that part
of the Edict in which cognates are called by the title of mere kinship.

5 In this place too we should observe that a person who claims as an
agnate can be admitted to the inheritance, even though ten degrees
removed from the deceased, both by the statute of the Twelve Tables, and
by the Edict in which the praetor promises the possession of goods to
heirs statutorily entitled: but on the ground of mere natural kinship
the praetor promises possession of goods to those cognates only who are
within the sixth degree; the only persons in the seventh degree whom
he admits as cognates being the children of a second cousin of the
deceased.




TITLE VI. OF THE DEGREES OF COGNATION

It is here necessary to explain the way in which the degrees of natural
relationship are reckoned. In the first place it is to be observed that
they can be counted either upwards, or downwards, or crosswise, that is
to say, collaterally. Relations in the ascending line are parents, in
the descending line, children, and similarly uncles and aunts paternal
and maternal. In the ascending and descending lines a man's nearest
cognate may be related to him in the first degree; in the collateral
line he cannot be nearer to him than the second.

1 Relations in the first degree, reckoning upwards, are the father and
mother; reckoning downwards, the son and daughter.

2 Those in the second degree, upwards, are grandfather and grandmother;
downwards, grandson and granddaughter;

3 and in the collateral line brother and sister. In the third degree,
upwards, are the greatgrandfather and greatgrandmother; downwards, the
greatgrandson and greatgranddaughter; in the collateral line, the sons
and daughters of a brother or sister, and also uncles and aunts paternal
and maternal. The father's brother is called 'patruus,' in Greek
'patros', the mother's brother avunculus, in Greek specifically
'matros,' though the term theios is used indifferently to indicate
either. The father's sister is called 'amita,' the mother's 'matertera';
both go in Greek by the name 'theia,' or, with some, 'tithis.'

4 In the fourth degree, upwards, are the greatgreatgrandfather and
the greatgreatgrandmother; downwards, the greatgreatgrandson and the
great-great-granddaughter; in the collateral line, the paternal greatuncle
and greataunt, that is to say, the grandfather's brother and sister: the
same relations on the grandmother's side, that is to say, her brother
and sister: and first cousins male and female, that is, children of
brothers and sisters in relation to one another. The children of two
sisters, in relation to one another, are properly called 'consobrini,'
a corruption of 'consororini'; those of two brothers, in relation to one
another, 'fratres patrueles,' if males, 'sorores patrueles,' if females;
and those of a brother and a sister, in relation to one another,
'amitini'; thus the sons of your father's sister call you 'consobrinus,'
and you call them 'amitini.'

5 In the fifth degree, upwards, are the grandfather's great-grandfather
and great-grandmother, downwards, the great-grandchildren of one's own
grandchildren, and in the collateral line the grandchildren of a brother
or sister, a great-grandfather's or great-grandmother's brother or sister,
the children of one's first cousins, that is, of a 'frater-' or 'soror
patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or
'amitina,' and first cousins once removed, that is to say, the children
of a great-uncle or great-aunt paternal or maternal.

6 In the sixth degree, upwards, are the great-grandfather's
great-grandfather and great-grandmother; downwards, the great-grandchildren
of a great-grandchild, and in the collateral line the great-grandchildren
of a brother or sister, as also the brother and sister of a
great-great-grandfather or great-great-grandmother, and second cousins,
that is to say, the children of 'fratres-' or 'sorores patrueles,' of
'consobrini,' or of 'amitini.'

7 This will be enough to show how the degrees of relationship are
reckoned; for from what has been said it is easy to understand how we
ought to calculate the remoter degrees also, each generation always
adding one degree: so that it is far easier to say in what degree any
one is related to some one else than to indicate his relationship by the
proper specific term.

8 The degrees of agnation are also reckoned in the same manner;

9 but as truth is fixed in the mind of man much better by the eye than
by the ear, we have deemed it necessary, after giving an account of the
degree of relationship, to have a table of them inserted in the present
book, that so the youth may be able by both ears and eyes to gain a most
perfect knowledge of them. [Note:--the pedagogical table is omitted in
the present edition.]

10 It is certain that the part of the Edict in which the possession
of goods is promised to the next of kin has nothing to do with the
relationships of slaves with one another, nor is there any old
statute by which such relationships were recognised. However, in
the constitution which we have issued with regard to the rights of
patrons--a subject which up to our times had been most obscure, and
full of difficulties and confusion--we have been prompted by humanity
to grant that if a slave shall beget children by either a free woman
or another slave, or conversely if a slave woman shall bear children of
either sex by either a freeman or a slave, and both the parents and the
children (if born of a slave woman) shall become free, or if the mother
being free, the father be a slave, and subsequently acquire his freedom,
the children shall in all these cases succeed their father and mother,
and the patron's rights lie dormant. And such children we have called
to the succession not only of their parents, but also of one another
reciprocally, by this enactment, whether those born in slavery and
subsequently manumitted are the only children, or whether there be
others conceived after their parents had obtained their freedom, and
whether they all have the same father and mother, or the same father and
different mothers, or vice versa; the rules applying to children born in
lawful wedlock being applied here also.

11 To sum up all that we have said, it appears that persons related
in the same degree of cognation to the deceased are not always called
together, and that even a remoter is sometimes preferred to a nearer
cognate. For as family heirs and those whom we have enumerated as
equivalent to family heirs have a priority over all other claimants, it
is clear that a great-grandson or great-great-grandson is preferred to a
brother, or the father or mother of the deceased; and yet the father and
mother, as we have remarked above, are in the first degree of
cognation, and the brother is in the second, while the great-grandson and
great-great-grandson are only in the third and fourth respectively. And it
is immaterial whether the descendant who ranks among family heirs was in
the power of the deceased at the time of his death, or out of it through
having been emancipated or through being the child of an emancipated
child or a child of the female sex.

12 When there are no family heirs, and none of those persons who we have
said rank as such, an agnate who has lost none of his agnatic rights,
even though very many degrees removed from the deceased, is usually
preferred to a nearer cognate; for instance, the grandson or
great-grandson of a paternal uncle has a better title than a maternal
uncle or aunt. Accordingly, in saying that the nearest cognate is
preferred in the succession, or that, if there are several cognates in
the nearest degree, they are called equally, we mean that this is the
case if no one is entitled to priority, according to what we have said,
as either being or ranking as a family heir, or as being an agnate; the
only exceptions to this being emancipated brothers and sisters of the
deceased who are called to succeed him, and who, in spite of their loss
of status, are preferred to other agnates in a remoter degree than
themselves.




TITLE VII. OF THE SUCCESSION TO FREEDMEN

Let us now turn to the property of freedmen. These were originally
allowed to pass over their patrons in their wills with impunity: for by
the statute of the Twelve Tables the inheritance of a freedman devolved
on his patron only when he died intestate without leaving a family
heir. If he died intestate, but left a family heir, the patron was not
entitled to any portion of this property, and this, if the family
heir was a natural child, seemed to be no grievance; but if he was an
adoptive child, it was clearly unfair that the patron should be debarred
from all right to the succession.

1 Accordingly this injustice of the law was at a later period corrected
by the praetor's Edict, by which, if a freedman made a will, he was
commanded to leave his patron half his property; and, if he left him
nothing at all, or less than a half, possession of such half was given
to him against the testament. If, on the other hand, he died intestate,
leaving as family heir an adoptive son, the patron could obtain even
against the latter possession of the goods of the deceased to the extent
of onehalf. But the freedman was enabled to exclude the patron if he
left natural children, whether in his power at the time of his death, or
emancipated or given in adoption, provided that he made a will in which
he instituted them heirs to any part of the succession, or that, being
passed over, they demanded possession against the will under the Edict:

2 if disinherited, they did not avail to bar the patron. At a still
later period the lex Papia Poppaea augmented the rights of patrons
who had more wealthy freedmen. By this it was enacted that, whenever
a freedman left property amounting in value to a hundred thousand
sesterces and upwards, and not so many as three children, the patron,
whether he died testate or intestate, should be entitled to a portion
equal to that of a single child. Accordingly, if the freedman left
a single son or daughter as heir, the patron could claim half the
property, exactly as if he had died without leaving any children: if he
left two children as heirs, the patron could claim a third: if he left
three, the patron was excluded altogether.

3 In our constitution, however, which we have drawn up in a convenient
form and in the Greek language, so as to be known by all, we have
established the following rules for application to such cases. If the
freedman or freedwoman is less than a 'centenarius', that is, has
a fortune of less than a hundred aurei (which we have reckoned as
equivalent to the sum of a hundred thousand sesterces fixed by the lex
Papia), the patron shall have no right to any share in the succession
if they make a will; while, if they die intestate without leaving any
children, we have retained unimpaired the rights conferred on the patron
by the Twelve Tables. If they are possessed of more than a hundred
aurei, and leave a descendant or descendants of either sex and any
degree to take the inheritance civil or praetorian, we have given to
such child or children the succession to their parents, to the exclusion
of every patron and his issue. If, however, they leave no children, and
die intestate, we have called the patron or patroness to their whole
inheritance: while if they make a will, passing over their patron or
patroness, and leaving no children, or having disinherited such as they
have, or (supposing them to be mothers or maternal grandfathers) having
passed them over without leaving them the right to impeach the testament
as unduteous, then, under our constitution, the patron shall succeed,
by possession against the will, not, as before, to onehalf of the
freedman's estate, but to onethird, or, if the freedman or freedwoman
has left him less than this third in his or her will, to so much as will
make up the difference. But this third shall be free from all charges,
even from legacies or trust bequests in favour of the children of
the freedman or freedwoman, all of which are to fall on the patron's
coheirs. In the same constitution we have gathered together the rules
applying to many other cases, which we deemed necessary for the
complete settlement of this branch of law: for instance, a title to the
succession of freedmen is conferred not only on patrons and patronesses,
but on their children and collateral relatives to the fifth degree: all
of which may be ascertained by reference to the constitution itself. If,
however, there are several descendants of a patron or patroness, or of
two or several, the nearest in degree is to take the succession of the
freedman or freedwoman, which is to be divided, not among the stocks,
but by counting the heads of those nearest in degree. And the same
rule is to be observed with collaterals: for we have made the law of
succession to freedmen almost identical with that relating to freeborn
persons.

4 All that has been said relates nowadays to freedmen who are Roman
citizens, for dediticii and Latini Iuniani having been together
abolished there are now no others. As to a statutory right of succession
to a Latin, there never was any such thing; for men of this class,
though during life they lived as free, yet as they drew their last
breath they lost their liberty along with their life, and under the lex
Iunia their manumitters kept their property, like that of slaves, as a
kind of peculium. It was subsequently provided by the SC. Largianum
that the manumitter's children, unless expressly disinherited, should be
preferred to his external heirs in succession to the goods of a Latin;
and this was followed by the edict of the Emperor Trajan, providing that
a Latin who contrived, without the knowledge or consent of his patron,
to obtain by imperial favour a grant of citizenship should live
a citizen, but die a Latin. Owing, however, to the difficulties
accompanying these changes of condition, and others as well, we have
determined by our constitution to repeal for ever the lex Iunia, the SC.
Largianum, and the edict of Trajan, and to abolish them along with the
Latins themselves, so as to enable all freedmen to enjoy the citizenship
of Rome: and we have converted in a wonderful manner the modes in which
persons became Latins, with some additions, into modes of attaining
Roman citizenship.




TITLE VIII. OF THE ASSIGNMENT OF FREEDMEN

Before we leave the subject of succession to freedmen, we should observe
a resolution of the Senate, to the effect that, though the property of
freedmen belongs in equal portions to all the patron's children who
are in the same degree, it shall yet be lawful for a parent to assign
a freedman to one of his children, so that after his own death the
assignee shall be considered his sole patron, and the other children
who, had it not been for such assignment, would be admitted equally with
him, shall have no claim to the succession whatever: though they recover
their original rights if the assignee dies without issue.

1 It is lawful to assign freedwomen as well as freedmen, and to
daughters and granddaughters no less than to sons and grandsons;

2 and the power of assignment is conferred on all who have two or
more children in their power, and enables them to assign a freedman or
freedwoman to such children while so subject to them. Accordingly the
question arose, whether the assignment becomes void, if the parent
subsequently emancipates the assignee? and the affirmative opinion,
which was held by Julian and many others, has now become settled law.

3 It is immaterial whether the assignment is made in a testament or
not, and indeed patrons are enabled to exercise this power in any terms
whatsoever, as is provided by the senatusconsult passed in the time of
Claudius, when Suillus Rufus and Ostorius Scapula were consuls.




TITLE IX. OF POSSESSION OF GOODS

The law as to possession of goods was introduced by the praetor by way
of amending the older system, and this not only in intestate succession,
as has been described, but also in cases where deceased persons have
made a will. For instance, although the posthumous child of a
stranger, if instituted heir, could not by the civil law enter upon the
inheritance, because his institution would be invalid, he could with
the assistance of the praetor be made possessor of the goods by the
praetorian law. Such a one can now, however, by our constitution be
lawfully instituted, as being no longer unrecognised by the civil law.

1 Sometimes, however, the praetor promises the possession of goods
rather in confirmation of the old law than for the purpose of correcting
or impugning it; as, for instance, when he gives possession in
accordance with a duly executed will to those who have been instituted
heirs therein. Again, he calls family heirs and agnates to the
possession of goods on an intestacy; and yet, even putting aside the
possession of goods, the inheritance belongs to them already by the
civil law.

2 Those whom the praetor calls to a succession do not become heirs in
the eye of the law, for the praetor cannot make an heir, because persons
become heirs by a statute only, or some similar ordinance such as a
senatusconsult or an imperial constitution: but as the praetor gives
them the possession of goods they become quasiheirs, and are called
'possessors of goods.' And several additional grades of grantees of
possession were recognised by the praetor in his anxiety that no
one might die without a successor; the right of entering upon an
inheritance, which had been confined by the statute of the Twelve Tables
within very narrow limits, having been conferred more extensively by him
in the spirit of justice and equity.

3 The following are the kinds of testamentary possession of goods.
First, the socalled 'contratabular' possession, given to children who
are merely passed over in the will. Second, that which the praetor
promises to all duly instituted heirs, and which is for that reason
called secundum tabulas. Then, having spoken of wills, the praetor
passes on to cases of intestacy, in which, firstly, he gives the
possession of goods which is called unde liberi to family heirs and
those who in his Edict are ranked as such. Failing these, he gives it,
secondly, to successors having a statutory title: thirdly, to the ten
persons whom he preferred to the manumitter of a free person, if a
stranger in relation to the latter, namely the latter's father and
mother, grandparents paternal and maternal, children, grandchildren by
daughters as well as by sons, and brothers and sisters whether of the
whole or of the half blood only. The fourth degree of possession is
that given to the nearest cognates: the fifth is that called tum quam
ex familia: the sixth, that given to the patron and patroness, their
children and parents: the seventh, that given to the husband or wife of
the deceased: the eighth, that given to cognates of the manumitter.

4 Such was the system established by the praetorian jurisdiction. We,
however, who have been careful to pass over nothing, but correct
all defects by our constitutions, have retained, as necessary, the
possession of goods called contra tabulas and secundum tabulas, and also
the kinds of possession upon intestacy known as unde liberis and unde
legitimi.

5 The possession, however, which in the praetor's Edict occupied the
fifth place, and was called unde decem personae, we have with benevolent
intentions and with a short treatment shown to be superfluous. Its
effect was to prefer to the extraneous manumitter the ten persons
specified above; but our constitution, which we have made concerning the
emancipation of children, has in all cases made the parent implicitly
the manumitter, as previously under a fiduciary contract, and has
attached this privilege to every such manumission, so as to render
superfluous the aforesaid kind of possession of goods. We have therefore
removed it, and put in its place the possession which the praetor
promises to the nearest cognates, and which we have thus made the fifth
kind instead of the sixth.

6 The possession of goods which formerly stood seventh in the list,
which was called tum quam ex familia, and that which stood eighth,
namely, the possession entitled unde liberi patroni patronaeque et
parentes eorum, we have altogether suppressed by our constitution
respecting the rights of patrons. For, having assimilated the succession
to freedmen to the succession to freeborn persons, with this sole
exception--in order to preserve some difference between the two
classes--that no one has any title to the former who is related more
distantly than the fifth degree, we have left them sufficient remedies
in the 'contratabular' possession, and in those called unde legitimi and
unde cognati, wherewith to vindicate their rights, so that thus all the
subtleties and inextricable confusion of these two kinds of possession
of goods have been abolished.

7 We have preserved in full force another possession of goods, which is
called unde vir et uxor, and which occupied the ninth place in the old
classification, and have given it a higher place, namely, the sixth.
The tenth kind, which was called unde cognati manumissoris, we have
very properly abolished for reasons which have been already stated:
thus leaving in full operation only six ordinary kinds of possession of
goods.

8 The seventh, which follows them, was introduced with most excellent
reason by the praetors, whose Edict finally promised the possession
of goods to those persons expressly entitled to it by any statute,
senatusconsult, or imperial constitution; but this was not permanently
incorporated by the praetor with either the intestate or the
testamentary kinds of possession, but was accorded by him, as
circumstances demanded, as an extreme and extraordinary remedy to
those persons who claim, either under a will or on an intestacy,
under statutes, senatusconsults, or the more recent legislation of the
emperors.

9 The praetor, having thus introduced many kinds of successions, and
arranged them in a system, fixed a definite time within which the
possession of goods must be applied for, as there are often several
persons entitled in the same kind of succession, though related in
different degrees to the deceased, in order to save the creditors of
the estate from delay in their suits, and to provide them with a proper
defendant to sue; and with the object also of making it less easy
for them to obtain possession of the property of the deceased, as in
bankruptcy, wherein they consulted their own advantage only. He allowed
to children and parents, adoptive no less than natural, an interval of
a year, and to all other persons one hundred days, within which to make
the application.

10 If a person entitled does not apply for the possession of goods
within the time specified, his portion goes by accrual to those in the
same degree or class with himself: or, if there be none, the praetor
promises by his successory edict the possession to those in the next
degree, exactly as if the person in the preceding one were nonexistent.
If any one refuses the possession of goods which he has the opportunity
of accepting, it is not unusual to wait until the aforesaid interval,
within which possession must be applied for, has elapsed, but the next
degree is admitted immediately under the same edict.

11 In reckoning the interval, only those days are considered upon which
the persons entitled could have made application.

12 Earlier emperors, however, have judiciously provided that no one
need trouble himself expressly to apply for the possession of goods,
but that, if he shall within the prescribed time in any manner have
signified his intention to accept, he shall have the full benefit of
such tacit acceptance.




TITLE X. OF ACQUISITION BY ADROGATION

There is another kind of universal succession which owes its
introduction neither to the statute of the Twelve Tables nor to the
praetor's Edict, but to the law which is based upon custom and consent.

1 When an independent person gives himself in adrogation, all his
property, corporeal and incorporeal, and all debts due to him formerly
passed in full ownership to the adrogator, except such rights as are
extinguished by loss of status, for instance, bounden services of
freedmen and rights of agnation. Use and usufruct, though formerly
enumerated among such rights, have now been saved by our constitution
from extinction by the least loss of status.

2 But we have now confined acquisition by adrogation within the same
limits as acquisition through their children by natural parents; that is
to say, adoptive as well as natural parents acquire no greater right
in property which comes to children in their power from any extraneous
source than a mere usufruct; the ownership is vested in the children
themselves. But if a son who has been adrogated dies in his adoptive
family, the whole of his property vests in the adrogator, failing those
persons who, under our constitution, are preferred to the father in
succession to property which is not acquired immediately from him.

3 Conversely, the adrogator is not, by strict law, suable for the debts
of his adoptive son, but an action may be brought against him as his
representative; and if he declines to defend the latter, the creditors
are allowed, by an order of the magistrates having jurisdiction in such
cases, to take possession of the property of which the usufruct as well
as the ownership would have belonged to the son, had he not subjected
himself to the power of another, and to dispose of it in the mode
prescribed by law.




TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE
THE GIFTS OF LIBERTY

A new form of succession was added by a constitution of the Emperor
Marcus, which provided that if slaves, who have received a bequest of
liberty from their master in a will under which no heir takes, wish
to have his property adjudged to them, their application shall be
entertained.

1 Such is the substance of a rescript addressed by the Emperor Marcus to
Popilius Rufus, which runs as follows: 'If there is no successor to
take on the intestacy of Virginius Valens, who by his will has conferred
freedom on certain of his slaves, and if, consequently, his property
is in danger of being sold, the magistrate who has cognizance of such
matters shall on application entertain your desire to have the property
adjudged to you, in order to give effect to the bequests of liberty,
direct and fiduciary, provided you give proper security to the creditors
for payment of their claims in full. Slaves to whom liberty has been
directly bequeathed shall become free exactly as if the inheritance had
been actually accepted, and those whom the heir was requested to manumit
shall obtain their liberty from you; provided that if you will have the
property adjudged to you only upon the condition, that even the
slaves who have received a direct bequest of liberty shall become your
freedmen, and if they, whose status is now in question, agree to this,
we are ready to authorize compliance with your wishes. And lest the
benefit afforded by this our rescript be rendered ineffectual in another
way, by the Treasury laying claim to the property, be it hereby known
to those engaged in our service that the cause of liberty is to be
preferred to pecuniary advantage, and that they must so effect such
seizures as to preserve the freedom of those who could have obtained it
had the inheritance been accepted under the will.'

2 This rescript was a benefit not only to slaves thus liberated, but
also to the deceased testators themselves, by saving their property from
being seized and sold by their creditors; for it is certain that such
seizure and sale cannot take place if the property has been adjudged on
this account, because some one has come forward to defend the deceased,
and a satisfactory defender too, who gives the creditors full security
for payment.

3 Primarily, the rescript is applicable only where freedom is conferred
by a will. How then will the case stand, if a man who dies intestate
makes gifts of freedom by codicils, and on the intestacy no one accepts
the inheritance? We answer, that the boon conferred by the constitution
ought not here to be refused. No one can doubt that liberty given, in
codicils, by a man who dies having made a will, is effectual.

4 The terms of the constitution show that it comes into application when
there is no successor on an intestacy; accordingly, it is of no use so
long as it is uncertain whether there will be one or not; but, when this
has been determined in the negative, it at once becomes applicable.

5 Again, it may be asked whether, if a person who abstains from
accepting an inheritance can claim a judicial restoration of rights, the
constitution can still be applied, and the goods adjudged under it? And
what, if such person obtains a restoration after they have been actually
adjudged in order to give effect to the bequest of freedom? We reply
that gifts of liberty to which effect has once been given cannot
possibly be recalled.

6 The object with which this constitution was enacted was to give effect
to bequests of liberty, and accordingly it is quite inapplicable where
no such bequests are made. Supposing, however, that a man manumits
certain slaves in his lifetime, or in contemplation of death, and
in order to prevent any questions arising whether the creditors have
thereby been defrauded, the slaves are desirous of having the property
adjudged to them, should this be permitted? and we are inclined to say
that it should, though the point is not covered by the terms of the
constitution.

7 Perceiving, however, that the enactment was wanting in many minute
points of this kind, we have ourselves issued a very full constitution,
in which have been collected many conceivable cases by which the law
relating to this kind of succession has been completed, and with which
any one can become acquainted by reading the constitution itself.




TITLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON
BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM

There were other kinds of universal succession in existence prior to
that last before mentioned; for instance, the 'purchase of goods' which
was introduced with many prolixities of form for the sale of insolvent
debtors' estates, and which remained in use under the socalled
'ordinary' system of procedure. Later generations adopted the
'extraordinary' procedure, and accordingly sales of goods became
obsolete along with the ordinary procedure of which they were a part.
Creditors are now allowed to take possession of their debtor's property
only by the order of a judge, and to dispose of it as to them seems most
advantageous; all of which will appear more perfectly from the larger
books of the Digest.

1 There was too a miserable form of universal acquisition under the SC.
Claudianum, when a free woman, through indulgence of her passion for a
slave, lost her freedom by the senatusconsult, and with her freedom her
property. But this enactment we deemed unworthy of our times, and have
ordered its abolition in our Empire, nor allowed it to be inserted in
our Digest.




TITLE XIII. OF OBLIGATIONS

Let us now pass on to obligations. An obligation is a legal bond, with
which we are bound by a necessity of performing some act according to
the laws of our State.

1 The leading division of obligations is into two kinds, civil and
praetorian. Those obligations are civil which are established by
statute, or at least are sanctioned by the civil law; those are
praetorian which the praetor has established by his own jurisdiction,
and which are also called honorary.

2 By another division they are arranged in four classes, contractual,
quasicontractual, delictal, and quasidelictal. And first, we must
examine those which are contractual, and which again fall into four
species, for contract is concluded either by delivery, by a form of
words, by writing, or by consent: each of which we will treat in detail.




TITLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE
CONTRACTED BY DELIVERY

Real contracts, or contracts concluded by delivery, are exemplified
by loan for consumption, that is to say, loan of such things as are
estimated by weight, number, or measure, for instance, wine, oil, corn,
coined money, copper, silver, or gold: things in which we transfer
our property on condition that the receiver shall transfer to us, at a
future time, not the same things, but other things of the same kind and
quality: and this contract is called mutuum, because thereby meum or
mine becomes tuum or thine. The action to which it gives rise is called
a condiction.

1 Again, a man is bound by a real obligation if he takes what is not
owed him from another who pays him by mistake; and the latter can, as
plaintiff, bring a condiction against him for its recovery, after the
analogy of the action whose formula ran 'if it be proved that he ought
to convey,' exactly as if the defendant had received a loan from him.
Consequently a pupil who, by mistake, is paid something which is not
really owed him without his guardian's authority, will no more be bound
by a condiction for the recovery of money not owed than by one for money
received as a loan: though this kind of liability does not seem to be
founded on contract; for a payment made in order to discharge a debt is
intended to extinguish, not to create, an obligation.

2 So too a person to whom a thing is lent for use is laid under a
real obligation, and is liable to the action on a loan for use. The
difference between this case and a loan for consumption is considerable,
for here the intention is not to make the object lent the property of
the borrower, who accordingly is bound to restore the same identical
thing. Again, if the receiver of a loan for consumption loses what he
has received by some accident, such as fire, the fall of a building,
shipwreck, or the attack of thieves or enemies, he still remains bound:
but the borrower for use, though responsible for the greatest care in
keeping what is lent him--and it is not enough that he has shown as much
care as he usually bestows on his own affairs, if only some one else
could have been more diligent in the charge of it--has not to answer for
loss occasioned by fire or accident beyond his control, provided it
did not occur through any fault of his own. Otherwise, of course, it is
different: for instance, if you choose to take with you on a journey a
thing which has been lent to you for use, and lose it by being attacked
by enemies or thieves, or by a shipwreck, it is beyond question that you
will be liable for its restoration. A thing is not properly said to
be lent for use if any recompense is received or agreed upon for the
service; for where this is the case, the use of the thing is held to be
hired, and the contract is of a different kind, for a loan for use ought
always to be gratuitous.

3 Again, the obligation incurred by a person with whom a thing is
deposited for custody is real, and he can be sued by the action of the
deposit; he too being responsible for the restoration of the identical
thing deposited, though only where it is lost through some positive
act of commission on his part: for for carelessness, that is to say,
inattention and negligence, he is not liable. Thus a person from whom
a thing is stolen, in the charge of which he has been most careless,
cannot be called to account, because, if a man entrusts property to the
custody of a careless friend, he has no one to blame but himself for his
want of caution.

4 Finally, the creditor who takes a thing in pledge is under a real
obligation, and is bound to restore the thing itself by the action of
pledge. A pledge, however, is for the benefit of both parties; of
the debtor, because it enables him to borrow more easily, and of
the creditor, because he has the better security for repayment; and
accordingly, it is a settled rule that the pledgee cannot be held
responsible for more than the greatest care in the custody of the
pledge; if he shows this, and still loses it by some accident, he
himself is freed from all liability, without losing his right to sue for
the debt.




TITLE XV. OF VERBAL OBLIGATION

An obligation is contracted by question and answer, that is to say, by a
form of words, when we stipulate that property shall be conveyed to
us, or some other act be performed in our favour. Such verbal contracts
ground two different action, namely condiction, when the stipulation is
certain, and the action on stipulation, when it is uncertain; and the
name is derived from stipulum, a word in use among the ancients to mean
'firm,' coming possibly from stipes, the trunk of a tree.

1 In this contract the following forms of words were formerly sanctioned
by usage: 'Do you engage yourself to do so and so?' 'I do engage
myself.' 'Do you promise?' 'I do promise.' 'Do you pledge your credit?'
'I pledge my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you
convey?' 'I will convey.' 'Will you do?' 'I will do.' Whether the
stipulation is in Latin, or Greek, or any other language, is immaterial,
provided the two parties understand one another, so that it is not
necessary even that they should both speak in the same tongue, so long
as the answer corresponds to the question, and thus two Greeks, for
instance, may contract an obligation in Latin. But it was only in former
times that the solemn forms referred to were in use: for subsequently,
by the enactment of Leo's constitution, their employment was rendered
unnecessary, and nothing was afterwards required except that the parties
should understand each other, and agree to the same thing, the words in
which such agreement was expressed being immaterial.

2 The terms of a stipulation may be absolute, or performance may either
be postponed to some future time, or be made subject to a condition.
An absolute stipulation may be exemplified by the following: 'Do you
promise to give five aurei?' and here (if the promise be made) that sum
may be instantly sued for. As an instance of stipulation in diem, as
it is called where a future day is fixed for payment, we may take the
following: 'Do you promise to give ten aurei on the first of March?' In
such a stipulation as this, an immediate debt is created, but it cannot
be sued upon until the arrival of the day fixed for payment: and even on
that very day an action cannot be brought, because the debtor ought to
have the whole of it allowed to him for payment; for otherwise, unless
the whole day on which payment was promised is past, it cannot be
certain that default has been made.

3 If the terms of your stipulation run 'Do you promise to pay me ten
aurei a year so long as I live?' the obligation is deemed absolute, and
the liability perpetual, for a debt cannot be owed till a certain
time only; though if the promisee's heir sues for payment, he will be
successfully met by the plea of contrary agreement.

4 A stipulation is conditional, when performance is made to depend on
some uncertain event in the future, so that it becomes actionable only
on something being done or omitted: for instance, 'Do you promise to
give five aurei if Titius is made consul?' If, however, a man stipulates
in the form 'Do you promise to give so and so, if I do not go up to the
Capitol?' the effect is the same as if he had stipulated for payment to
himself at the time of his death. The immediate effect of a conditional
stipulation is not a debt, but merely the expectation that at some time
there will be a debt: and this expectation devolves on the stipulator's
heir, supposing he dies himself before fulfilment of the condition.

5 It is usual in stipulations to name a place for payment; for instance,
'Do you promise to give at Carthage?' Such a stipulation as this, though
in its terms absolute, implies a condition that enough time shall be
allowed to the promisor to enable him to pay the money at Carthage.
Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay
today at Carthage?' the stipulation is void, because the performance of
the act to be promised is a physical impossibility.

6 Conditions relating to past or present time either make the obligation
void at once, or have no suspensive operation whatever. Thus, in the
stipulation 'Do you promise to give so and so, if Titius has been
consul, or if Maevius is alive?' the promise is void, if the condition
is not satisfied; while if it is, it is binding at once: for events
which in themselves are certain do not suspend the binding force of an
obligation, however uncertain we ourselves may be about them.

7 The performance or nonperformance of an act may be the object of a
stipulation no less than the delivery of property, though where this is
the case, it will be best to connect the nonperformance of the act to be
performed, or the performance of the act to be omitted, with a pecuniary
penalty to be paid in default, lest there be doubt as to the value of
the act or omission, which will make it necessary for the plaintiff to
prove to what damages he is entitled. Thus, if it be a performance
which is stipulated for, some such penalty should be added as in the
following: 'If so and so is not done, do you promise to pay ten aurei as
a penalty?' And if the performance of some acts, and the nonperformance
of others, are bargained for in the same stipulation, a clause of the
following kind should be added, 'If any default is made, either as
contrary to what is agreed upon, or by way of nonperformance, do you
promise to pay a penalty of ten aurei?'




TITLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO
DEBTORS

There may be two or more parties on either side in a stipulation, that
is to say, as promisors or promisees. Joint promises are so constituted
by the promisor answering, 'I promise,' after they have all first
asked the question; for instance, if after two promises have separately
stipulated from him, he answers, 'I promise to give so and so to each of
you.' But if he first promises to Titius, and then, on another's putting
the question to him, promises to him too, there will be two distinct
obligations, namely, one between him and each of the promisees, and they
are not considered joint promisees at all. The usual form to constitute
two or more joint promisors is as follows,--'Maevius, do you promise to
give five aurei? Seius, do you promise to give the same five aurei?' and
in answer they reply separately, 'I promise.'

1 In obligations of this kind each joint promisee is owed the whole sum,
and the whole sum can be claimed from each joint promisor; and yet
in both cases but one payment is due, so that if one joint promisee
receives the debt, or one joint promisor pays it, the obligation is
thereby extinguished for all, and all are thereby released from it.

2 Of two joint promisors one may be bound absolutely, while performance
by the other is postponed to a future day, or made to depend on a
condition; but such postponement or such condition in no way prevents
the stipulator from at once suing the one who was bound absolutely.




TITLE XVII. OF STIPULATIONS MADE BY SLAVES

From his master's legal capacity a slave derives ability to be promisee
in a stipulation. Thus, as an inheritance in most matters represents
the legal 'person' of the deceased, whatever a slave belonging to it
stipulates for, before the inheritance is accepted, he acquires for the
inheritance, and so for the person who subsequently becomes heir.

1 All that a slave acquires by a stipulation he acquires for his master
only, whether it was to that master, or himself, or his fellow slave, or
no one in particular that performance was to be made under the contract;
and the same principle applies to children in power, so far as they now
are instruments of acquisition for their father.

2 When, however, what is stipulated for is permission to do some
specific act, that permission cannot extend beyond the person of the
promisee: for instance, if a slave stipulates for permission to cross
the promisor's land, he cannot himself be denied passage, though his
master can.

3 A stipulation by a slave belonging to joint owners enures to the
benefit of all of them in proportion to the shares in which they own
him, unless he stipulated at the bidding, or expressly in favour, of one
of them only, in which case that one alone is benefited. Where a jointly
owned slave stipulates for the transfer of property which cannot be
acquired for one of his two masters, the contract enures to the benefit
of the other only: for instance, where the stipulation is for the
transfer of a thing which already belongs to one of them.




TITLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS

Stipulations are either judicial, praetorian, conventional, or common:
by the latter being meant those which are both praetorian and judicial.

1 Judicial stipulations are those which it is simply part of the judge's
duty to require; for instance, security against fraud, or for the
pursuit of a runaway slave, or (in default) for payment of his value.

2 Those are praetorian, which the praetor is bound to exact simply in
virtue of his magisterial functions; for instance, security against
apprehended damage, or for payment of legacies by an heir. Under
praetorian stipulations we must include also those directed by the
aedile, for these too are based upon jurisdiction.

3 Conventional stipulations are those which arise merely from the
agreement of the parties, apart from any direction of a judge or of the
praetor, and which one may almost say are of as many different kinds as
there are conceivable objects to a contract.

4 Common stipulations may be exemplified by that by which a guardian
gives security that his ward's property will not be squandered or
misappropriated, which he is sometimes required to enter into by the
praetor, and sometimes also by a judge when the matter cannot be managed
in any other way; or, again, we might take the stipulation by which an
agent promises that his acts shall be ratified by his principal.




TITLE XIX. OF INVALID STIPULATIONS

Anything, whether movable or immovable, which admits of private
ownership, may be made the object of a stipulation; 1 but if a man
stipulates for the delivery of a thing which either does not or cannot
exist, such as Stichus, who is dead but whom he though alive, or an
impossible creature, like a hippocentaur, the contract will be void.

2 Precisely the same principles applies where a man stipulates for the
delivery of a thing which is sacred or religious, but which he thought
was a subject of human ownership, or of a thing which is public, that is
to say, devoted in perpetuity to the use and enjoyment of the people
at large, like a forum or theatre, or of a free man whom he thought a
slave, or of a thing which he is incapable of owning, or which is
his own already. And the fact that a thing which is public may
become private property, that a free man may become a slave, that the
stipulator may become capable of owning such and such a thing, or that
such and such a thing may cease to belong to him, will not avail to
merely suspend the force of the stipulation in these cases, but it is
void from the outset. Conversely, a stipulation which originally
was perfectly good may be avoided by the thing, which is its object,
acquiring any of the characters just specified through no fault of the
promisor. And a stipulation, such as 'do you promise to convey Lucius
Titius when he shall be a slave' and others like it, are also void from
the beginning; for objects which by their very nature cannot be owned by
man cannot either in any way be made the object of an obligation.

3 If one man promises that another shall convey, or do so and so, as,
for instance, that Titius shall give five aurei, he will not be bound,
though he will if he promises to get Titius to give them.

4 If a man stipulates for conveyance to, or performance in favour of,
another person who is not his paterfamilias, the contract is void;
though of course performance to a third person may be bargained for (as
in the stipulation 'do you promise to give to me or to Seius?'); where,
though the obligation is created in favour of the stipulator only,
payment may still be lawfully made to Seius, even against the
stipulator's will, the result of which, if it is done, being that the
promisor is entirely released from his obligation, while the stipulator
can sue Seius by the action of agency. If a man stipulates for payment
of ten aurei to himself and another who is not his paterfamilias, the
contract will be good, though there has been much doubt whether in such
a case the stipulator can sue for the whole sum agreed upon, or only
half; the law is now settled in favour of the smaller sum. If you
stipulate for performance in favour of one in your power, all benefit
under the contract is taken by yourself, for your words are as the words
of your son, as his words are as yours, in all cases in which he is
merely an instrument of acquisition for you.

5 Another circumstance by which a stipulation may be avoided is want of
correspondence between question and answer, as where a man stipulates
from you for payment of ten aurei, and you promise five, or vice versa;
or where his question is unconditional, your answer conditional, or vice
versa, provided only that in this latter case the difference is express
and clear; that is to say, if he stipulates for payment on fulfilment
of a condition, or on some determinate future day, and you answer: 'I.
promise to pay today,' the contract is void; but if you merely answer:
'I promise,' you are held by this laconic reply to have undertaken
payment on the day, or subject to the condition specified; for it is not
essential that every word used by the stipulator should be repeated in
the answer of the promise.

6 Again, no valid stipulation can be made between two persons of whom
one is in the power of the other. A slave indeed cannot be under an
obligation to either his master or anybody else: but children in power
can be bound in favour of any one except their own paterfamilias.

7 The dumb, of course, cannot either stipulate or promise, nor can the
deaf, for the promisee in stipulation must hear the answer, and the
promisor must hear the question; and this makes it clear that we are
speaking of persons only who are stone deaf, not of those who (as it is
said) are hard of hearing.

8 A lunatic cannot enter into any contract at all, because he does not
understand what he is doing.

9 On the other hand a pupil can enter into any contract, provided that
he has his guardian's authority, when necessary, as it is for incurring
an obligation, though not for imposing an obligation on another person.

10 This concession of legal capacity of disposition is manifestly
reasonable in respect of children who have acquired to some
understanding, for children below the age of seven years, or who have
just passed that age, resemble lunatics in want of intelligence. Those,
however, who have just completed their seventh year are permitted, by
a beneficent interpretation of the law, in order to promote their
interests, to have the same capacity as those approaching the age of
puberty; but a child below the latter age, who is in paternal power,
cannot bind himself even with his father's sanction.

11 An impossible condition is one which, according to the course of
nature, cannot be fulfilled, as, for instance, if one says: 'Do
you promise to give if I. touch the sky with my finger?' But if the
stipulation runs: 'Do you promise to give if I do not touch the sky with
my finger?' it is considered unconditional, and accordingly can be sued
upon at once.

12 Again, a verbal obligation made between persons who are not present
with one another is void. This rule, however, afforded contentious
persons opportunities of litigation, by alleging, after some interval,
that they, or their adversaries, had not been present on the occasion in
question; and we have therefore issued a constitution, addressed to the
advocates of Caesarea, in order with the more dispatch to settle such
disputes, whereby it is enacted that written documents in evidence of a
contract which recite the presence of the parties shall be taken to
be indisputable proof of the fact, unless the person, who resorts to
allegations usually so disgraceful, proves by the clearest evidence,
either documentary or borne by credible witnesses, that he or his
adversary was elsewhere than alleged during the whole day on which the
document is stated to have been executed.

13 Formerly, a man could not stipulate that a thing should be conveyed
to him after his own death, or after that of the promisor; nor could one
person who was in another's power even stipulate for conveyance after
that person's death, because he was deemed to speak with the voice of
his parent or master; and stipulations for conveyance the day before the
promisee's or promisor's decease were also void. Stipulation, however,
as has already been remarked, derive their validity from the consent
of the contracting parties, and we therefore introduced a necessary
emendation in respect also of this rule of law, by providing that a
stipulation shall be good which bargains for performance either after
the death, or the day before the death, of either promisee or promisor.

14 Again, a stipulation in the form: 'Do you promise to give today, if
such or such a ship arrives from Asia tomorrow?' was formerly void, as
being preposterous in its expression, because what should come last
is put first. Leo, however, of famous memory held that a preposterous
stipulation in the settlement of a dowry ought not to be rejected as
void, and we have determined to allow it perfect validity in every case,
and not merely in that in which it was formerly sanctioned.

15 A stipulation, say by Titius, in the form: 'Do you promise to give
when I shall die' or 'when you shall die'? is good now, as indeed it
always was even under the older law.

16 So too a stipulation for performance after the death of a third
person is good.

17 If a document in evidence of a contract states that so and so
promised, the promise is deemed to have been given in answer to a
preceding question.

18 When several acts of conveyance or performance are comprised in
a single stipulation, if the promisor simply answers: 'I promise to
convey,' he becomes liable on each and all of them, but if he answers
that he will convey only one or some of them, he incurs an obligation in
respect of those only which are comprised in his answer, there being
in reality several distinct stipulations of which only one or some
are considered to have acquired binding force: for for each act of
conveyance or performance there ought to be a separate question and a
separate answer.

19 As has been already observed, no one can validly stipulate for
performance to a person other than himself, for the purpose of this
kind of obligation is to enable persons to acquire for themselves that
whereby they are profited, and a stipulator is not profited if the
conveyance is made to a third person. Hence, if it be wished to make
a stipulation in favour of any such third person, a penalty should be
stipulated for, to be paid, in default of performance of that which is
in reality the object of the contract, to the party who otherwise would
have no interest in such performance; for when one stipulates for a
penalty, it is not his interest in what is the real contract which
is considered, but only the amount to be forfeited to him upon
nonfulfilment of the condition. So that a stipulation for conveyance
to Titius, but made by some one else, is void: but the addition of a
penalty, in the form 'If you do not convey, do you promise to pay me so
many aurei?' makes it good and actionable.

20 But where the promisor stipulates in favour of a third person, having
himself an interest in the performance of the promise, the stipulation
is good. For instance, if a guardian, after beginning to exercise his
tutorial functions, retires from their exercise in favour of his fellow
guardian, taking from him by stipulation security for the due charge of
the ward's property, he has a sufficient interest in the performance
of this promise, because the ward could have sued him in case of
maladministration, and therefore the obligation is binding. So too a
stipulation will be good by which one bargains for delivery to one's
agent, or for payment to one's creditor, for in the latter case one may
be so far interested in the payment that, if it not be made, one will
become liable to a penalty or to having a foreclosure of estates which
one has mortgaged.

21 Conversely, he who promises that another shall do so and so is not
bound unless he promises a penalty in default;

22 and, again, a man cannot validly stipulate that property which will
hereafter be his shall be conveyed to him as soon as it becomes his own.

23 If a stipulator and the promisor mean different things, there is no
contractual obligation, but it is just as if no answer had been made to
the question; for instance, if one stipulates from you for Stichus, and
you think he means Pamphilus, whose name you believed to be Stichus.

24 A promise made for an illegal or immoral purpose, as, for instance,
to commit a sacrilege or homicide, is void.

25 If a man stipulates for performance on the fulfilment of a condition,
and dies before such fulfilment, his heir can sue on the contract when
it occurs: and the heir of the promisor can be sued under the same
circumstances.

26 A stipulation for a conveyance this year, or this month, cannot be
sued upon until the whole year, or the whole month, has elapsed:

27 and similarly the promisee cannot sue immediately upon a stipulation
for the conveyance of an estate or a slave, but only after allowing a
sufficient interval for the conveyance to be made.




TITLE XX. OF FIDEJUSSORS OR SURETIES

Very often other persons, called fidejussors or sureties, are bound for
the promisor, being taken by promises as additional security.

1 Such sureties may accompany any obligation, whether real, verbal,
literal or consensual: and it is immaterial even whether the principal
obligation be civil or natural, so that a man may go surety for the
obligation of a slave either to a stranger or to his master.

2 A fidejussor is not only bound himself, but his obligation devolves
also on his heir' 3 and the contract of suretyship may be entered into
before no less than after the creation of the principal obligation.

4 If there are several fidejussors to the same obligation, each of them,
however many they are, is liable for the whole amount, and the creditor
may sue whichever he chooses for the whole; but by the letter of Hadrian
he may be compelled to sue for only an aliquot part, determined by the
number of sureties who are solvent at the commencement of the action: so
that if one of them is insolvent at that time the liability of the rest
is proportionately increased. Thus, if one fidejussor pay the whole
amount, he alone suffers by the insolvency of the principal debtor; but
this is his own fault, as he might have availed himself of the letter of
Hadrian, and required that the claim should be reduced to his rateable
portion.

5 Fidejussors cannot be bound for more than their principal, for their
obligation is but accessory to the latter's, and the accessory cannot
contain more than the principal; but they can be bound for less. Thus,
if the principal debtor promised ten aurei, the fidejussor can well be
bound for five, but not vice versa; and if the principal's promise
is absolute, that of the fidejussor may be conditional, though a
conditional promise cannot be absolutely guaranteed, for more and less
is to be understood of time as well as of quantity, immediate payment
being regarded as more, and future payment as less.

6 For the recovery of anything paid by him for the principal the
fidejussor can sue the latter by the action on agency.

7 A fidejussor may be taken in Greek, by using the expressions 'tei
emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be
taken as equivalent to 'lego.'

8 It is to be observed that in the stipulations of fidejussors the
general rule is that whatever is stated in writing to have been done is
taken to have really been done; and, accordingly, it is settled law that
if a man signs his name to a paper stating that he became a fidejussor,
all formalities are presumed to have been duly observed.




TITLE XXI. OF LITERAL OBLIGATION

Formerly there was a kind of obligation made by writing, and said to
be contracted by the entry of a debt in a ledger; but such entries have
nowadays gone out of use. Of course, if a man states in writing that he
owes money which has never been paid over to him, he cannot be allowed,
after a considerable interval, to defend himself by the plea that
the money was not, in fact, advanced; for this is a point which has
frequently been settled by imperial constitutions. The consequence is,
that even at the present day a person who is estopped from this plea is
bound by his written signature, which (even of course where there is no
stipulation) is ground for a condiction. The length of time after
which this defence could not be pleaded was formerly fixed by
imperial constitutions at five years; but it has been reduced by our
constitution, in order to save creditors from a more extended risk of
being defrauded of their money, so that now it cannot be advanced after
the lapse of two years from the date of the alleged payment.




TITLE XXII. OF OBLIGATION BY CONSENT

Obligations contracted by mere consent are exemplified by sale, hire,
partnership and agency, which are called consensual contracts because no
writing, nor the presence of the parties, nor any delivery is required
to make the obligation actionable, but the consent of the parties is
sufficient. Parties who are not present together, therefore, can form
these contracts by letter, for instance, or by messenger: and they are
in their nature bilateral, that is, both parties incur a reciprocal
obligation to perform whatever is just and fair, whereas verbal
contracts are unilateral, one party being promisee, and the other alone
promisor.




TITLE XXIII. OF PURCHASE AND SALE

The contract of purchase and sale is complete immediately the price
is agreed upon, and even before the price or as much as any earnest is
paid: for earnest is merely evidence of the completion of the contract.
In respect of sales unattested by any written evidence this is a
reasonable rule, and so far as they are concerned we have made no
innovations. By one of our constitutions, however, we have enacted, that
no sale effected by an agreement in writing shall be good or binding,
unless that agreement is written by the contracting parties themselves,
or, if written by some one else, is at least signed by them, or finally,
if written by a notary, is duly drawn by him and executed by the
parties. So long as any of these requirements is unsatisfied, there is
room to retract, and either purchaser or vendor may withdraw from the
agreement with impunity--provided, that is to say, that no earnest has
been given. Where earnest has been given, and either party refuses to
perform the contract, that party, whether the agreement be in writing or
not, if purchaser forfeits what he has given, and if vendor is compelled
to restore double of what he has received, even though there has been no
express agreement in the matter of earnest.

1 It is necessary that the price should be settled, for without a
price there can be no purchase and sale, and it ought to be a fixed and
certain price. For instance, where the parties agreed that the thing
should be sold at a price to be subsequently fixed by Titius, the older
jurists doubted much whether this was a valid contract of sale or not.
The doubt has been settled in the following way by our decision; if the
third person named actually fixes the price, it must certainly be paid,
as settled by him, and the thing must be delivered, in order to give
effect to the sale; the purchaser (if not fairly treated) suing by the
action on purchase, and the vendor by the action on sale. But if the
third person named will not or cannot fix the price, the sale will
be void, because no price has been settled. This rule, which we have
adopted with regard to sales, may reasonably be extended also to
contracts of hire.

2 The price, too, should be in money; for it used to be much disputed
whether anything else, such as a slave, a piece of land, or a robe,
could be treated as a price. Sabinus and Cassius held the affirmative,
explaining thus the common theory that exchange is a species, and the
oldest species, of purchase and sale; and in their support they quoted
the lines of Homer, who says in a certain passage that the army of the
Greeks procured themselves wine by giving other things in exchange,
the actual words being as follow: 'then the longhaired Greeks bought
themselves wine, some with bronze, some with shining iron, some
with hides, some with live oxen, some with slaves.' The other school
maintained the negative, and distinguished between exchange on the one
hand, and purchase and sale on the other: for if an exchange were the
same thing as a sale, it would be impossible to determine which is the
thing sold, and which is the price, and both things cannot be regarded
in each of these characters. The opinion, however, of Proculus, who
affirmed that exchange was a species of contract apart by itself, and
distinct from sale, has deservedly prevailed, as it is confirmed by
other lines from Homer, and by still more cogent reasons, and this has
been admitted by preceding Emperors, and is fully stated in our Digest.

3 As soon as the contract of sale is concluded--that is, as we have
said, as soon as the price is agreed upon, if the contract is not in
writing--the thing sold is immediately at the risk of the purchaser,
even though it has not yet been delivered to him. Accordingly, if a
slave dies, or is injured in any part of his body, or if a house is
either totally or partially burnt down, or if a piece of land is wholly
or partially swept away by a river flood, or is reduced in acreage by
an inundation, or made of less value by a storm blowing down some of
its trees, the loss falls on the purchaser, who must pay the price even
though he has not got what he purchased. The vendor is not responsible
and does not suffer for anything not due to any design or fault of his
own. If, however, after the purchase of a piece of land, it receives an
increase by alluvion, it is the purchaser who profits thereby: for the
profit ought to belong to him who also bears the risk. And if a slave
who has been sold runs away, or is stolen, without any design or fault
of the vendor, one should look to see whether the latter expressly
undertook to keep him safely until delivery was made; for, if he did
this, the loss falls upon him, though otherwise he incurs no liability:
and this is a rule which applies to all animals and other objects
whatsoever. The vendor, however, will be bound to transfer to the
purchaser all his rights of action for the recovery of the object or
damages, for, not having yet delivered it to the purchaser, he still
remains its owner, and the same holds good of the penal actions on theft
and on unlawful damage.

4 A sale may be made conditionally as well as absolutely. The following
is an example of a conditional sale: 'If Stichus meets with your
approval within a certain time, he shall be purchased by you for so many
aurei.'

5 If a man buys a piece of land which is sacred, religious, or public,
such as a forum or basilica, knowing it to be such, the purchase is
void. But if the vendor has fraudulently induced him to believe that
what he was buying was not sacred, or was private property, as he cannot
legally have what he contracted for, he can bring the action on purchase
to recover damages for what he has lost by the fraud; and the same rule
applies to the purchase of a free man represented by the vendor to be a
slave.




TITLE XXIV. OF LETTING AND HIRING

The contract of hire resembles very closely the contract of sale, and
the same rules of law apply to both. Thus, as the contract of sale is
concluded as soon as the price is agreed upon, so the contract of hire
is held to be concluded as soon as the sum to be paid for the hiring is
settled, and from that moment the letter has an action on the letting,
and the hirer on the hiring.

1 What we have said above as to a sale in which the price is left to be
fixed by a third person must be understood to apply also to a contract
of hire in which the amount to be paid for hire is left to be fixed in
the same way. Consequently, if a man gives clothes to a fuller to clean
or finish, or to a tailor to mend, and the amount of hire is not fixed
at the time, but left to subsequent agreement between the parties, a
contract of hire cannot properly be said to have been concluded, but
an action is given on the circumstances, as amounting to an innominate
contract.

2 Again, a question often arose in connexion with the contract of hire
similar to that which was so common, namely, whether an exchange was a
sale. For instance, what is the nature of the transaction if a man gives
you the use or enjoyment of a thing, and receives in return the use or
enjoyment of another thing from you? It is now settled that this is not
a contract of hire, but a kind of contract apart by itself. Thus, if
a man had one ox, and his neighbour another, and they agreed that each
should in turn lend the other his ox for ten days to make use of, and
then one of the oxen died while working for the man to whom it did not
belong, an action cannot be brought on hire, nor on a loan for use, for
a loan for use ought to be gratuitous: but an action should be brought
as on an innominate contract.

3 So nearly akin, indeed, is purchase and sale, to letting and hiring,
that in some cases it is a question to which class of the two a contract
belongs. As an instance may be taken those lands which are delivered
over to be enjoyed for ever, upon the terms, that is to say, that so
long as the rent is paid to the owner it shall not be lawful for the
latter to take the lands away from either the original hirer, or his
heir, or any one else to whom he or his heirs has conveyed them by sale,
gift, dowry, or in any other way whatsoever. The questionings of the
earlier lawyers, some of whom thought this kind of contract a hiring,
and others a sale, occasioned the enactment of the statute of Zeno,
which determined that this contract of emphyteusis, as it is called, was
of a peculiar nature, and should not be included under either hire or
sale, but should rest on the terms of the agreement in each particular
case: so that if anything were agreed upon between the parties, this
should bind them exactly as if it were inherent in the very nature of
the contract; while if they did not agree expressly at whose risk the
land should be, it should be at that of the owner in case of total
destruction, and at that of the tenant, if the injury were merely
partial. And these rules we have adopted in our legislation.

4 Again, if a goldsmith agrees to make Titius rings of a certain weight
and pattern out of his own gold for, say, ten aurei, it is a question
whether the contract is purchase and sale or letting and hiring. Cassius
says the material is bought and sold, the labour let and hired; but it
is now settled that there is only a purchase and sale. But if Titius
provided the gold, and agreed to pay him for his work, the contract is
clearly a letting and hiring.

5 The hirer ought to observe all the terms of the contract, and in the
absence of express agreement his obligations should be ascertained by
reference to what is fair and equitable. Where a man has either given or
promised for hire for the use of clothes, silver, or a beast of burden,
he is required in his charge of it to show as much care as the most
diligent father of a family shows in his own affairs; if he do this, and
still accidentally lose it, he will be under no obligation to restore
either it or its value.

6 If the hirer dies before the time fixed for the termination of the
contract has elapsed, his heir succeeds to his rights and obligations in
respect thereof.




TITLE XXV. OF PARTNERSHIP

A partnership either extends to all the goods of the partners, when the
Greeks call it by the special name of 'koinopraxia,' or is confined to
a single sort of business, such as the purchase and sale of slaves, oil,
wine, or grain.

1 If no express agreement has been made as to the division of the profit
and loss, an equal division of both is understood to be intended, but
if it has, such agreement ought to be carried into effect; and there
has never been any doubt as to the validity of a contract between two
partners that one shall take twothirds of the profit and bear twothirds
of the loss, and that the remaining third shall be taken and borne
respectively by the other.

2 If Titius and Seius agreed that the former should take twothirds of
the profits, and bear only onethird of the loss, and that the latter
should bear twothirds of the loss, and take only onethird of the
profits, it has been made a question whether such an agreement ought to
be held valid. Quintus Mucius thought such an arrangement contrary to
the very nature of partnership, and therefore not to be supported: but
Servius Sulpicius, whose opinion has prevailed, was of a different view,
because the services of a particular partner are often so valuable that
it is only just to admit him to the business on more favourable terms
than the rest. It is certain that a partnership may be formed on the
terms that one partner shall contribute all the capital, and that
the profits shall be divided equally, for a man's services are often
equivalent to capital. Indeed, the opinion of Quintus Mucius is now so
generally rejected, that it is admitted to be a valid contract that
a partner shall take a share of the profits, and bear no share in the
loss, which indeed Servius, consistently with his opinion, maintained
himself. This of course must be taken to mean that if there is a profit
on one transaction, and a loss on another, a balance should be struck,
and only the net profit be considered as profits.

3 It is quite clear that if the shares are expressed in one event only,
as for instance in the event of profit, but not in the event of loss, or
vice versa, the same proportions must be observed, in the event of which
no mention has been made, as in the other.

4 The continuance of partnership depends on the continuing consent of
the members; it is dissolved by notice of withdrawal from any one of
them. But of course if the object of a partner in withdrawing from the
partnership is to fraudulently keep for himself some accruing gain--for
instance, if a partner in all goods succeeds to an inheritance, and
withdraws from the partnership in order to have exclusive possession
thereof--he will be compelled to divide this gain with his partners; but
what he gains undesignedly after withdrawing he keeps to himself, and
his partner always has the exclusive benefit of whatever accrues to him
after such withdrawal.

5 Again, a partnership is dissolved by the death of a partner, for when
a man enters into a contract of partnership, he selects as his partner
a definite person. Accordingly, a partnership based on the agreement
of even several persons is dissolved by the death of one of them, even
though several others survive, unless when the contract was made it was
otherwise agreed.

6 So too a partnership formed for the attainment of some particular
object is terminated when that object is attained.

7 It is clear too that a partnership is dissolved by the forfeiture of
the property of one of the partners, for such an one, as he is replaced
by a successor, is reckoned civilly dead.

8 So again, if one of the partners is in such embarrassed circumstances
as to surrender all his property to his creditors, and all that he
possessed is sold to satisfy the public or private claims upon him,
the partnership is dissolved, though if the members still agree to be
partners, a new partnership would seem to have begun.

9 It has been doubted whether one partner is answerable to another on
the action of partnership for any wrong less than fraud, like the bailee
in a deposit, or whether he is not suable also for carelessness, that is
to say, for inattention and negligence; but the latter opinion has now
prevailed, with this limitation, that a partner cannot be required
to satisfy the highest standard of carefulness, provided that in
partnership business he shows as much diligence as he does in his own
private affairs: the reason for this being that if a man chooses as his
partner a careless person, he has no one to blame but himself.




TITLE XXVI. OF AGENCY

Of the contract of agency there are five modes. A man gives you a
commission either for his own exclusive benefit, or for his own and
yours together, or for that of some third person, or for his own and the
third person's, or for the third person's and yours. A commission given
simply for the sake of the agent gives rise in reality to no relation
of agency, and accordingly no obligation comes into existence, and
therefore no action.

1 A commission is given solely for the benefit of the principal when,
for instance, the latter instructs you to manage his business, to buy
him a piece of land, or to enter into a stipulation as surety for him.

2 It is given for your benefit and for that of your principal together
when he, for instance, commissions you to lend money at interest to a
person who borrows it for your principal's benefit; or where, on your
wishing to sue him as surety for some one else, he commissions you to
sue his principal, himself undertaking all risk: or where, at his risk,
you stipulate for payment from a person whom he substitutes for himself
as your debtor.

3 It is given for the benefit of a third person when, for instance, some
one commissions you to look after Titius's affairs as general agent, or
to buy Titius a piece of land, or to go surety for him.

4 It is for the benefit of the principal and a third person when, for
instance, some one instructs you to look after affairs common to himself
and Titius, or to buy an estate for himself and Titius, or to go surety
for them jointly.

5 It is for the benefit of yourself and a third person when, for
instance, some one instructs you to lend money at interest to Titius; if
it were to lend money free of interest, it would be for the benefit of
the third person only.

6 It is for your benefit alone if, for instance, some one commissions
you to invest your money in the purchase of land rather than to lend it
at interest, or vice versa. But such a commission is not really so
much a commission in the eye of the law as a mere piece of advice, and
consequently will not give rise to an obligation, for the law holds no
one responsible as on agency for mere advice given, even if it turns
out ill for the person advised, for every one can find out for himself
whether what he is advised to do is likely to turn out well or ill.
Consequently, if you have money lying idle in your cashbox, and on so
and so's advice buy something with it, or put it out at interest, you
cannot sue that person by the action on agency although your purchase
or loan turns out a bad speculation; and it has even been questioned, on
this principle, whether a man is suable on agency who commissions you to
lend money to Titius; but the prevalent opinion is that of Sabinus, that
so specific a recommendation is sufficient to support an action, because
(without it) you would never have lent your money to Titius at all.

7 So too instructions to commit an unlawful or immoral act do not create
a legal obligation--as if Titius were to instigate you to steal, or to
do an injury to the property or person of some one else; and even if you
act on his instructions, and have to pay a penalty in consequence, you
cannot recover its amount from Titius.

8 An agent ought not to exceed the terms of his commission. Thus, if
some one commissions you to purchase an estate for him, but not to
exceed the price of a hundred aurei, or to go surety for Titius up
to that amount, you ought not in either transaction to exceed the sum
specified: for otherwise you will not be able to sue him on the agency.
Sabinus and Cassius even thought that in such a case you could not
successfully sue him even for a hundred aurei, though the leaders of
the opposite school differed from them, and the latter opinion is
undoubtedly less harsh. If you buy the estate for less, you will have
a right of action against him, for a direction to buy an estate for a
hundred aurei is regarded as an implied direction to buy, if possible,
for a smaller sum.

9 The authority given to an agent duly constituted can be annulled by
revocation before he commences to act upon it.

10 Similarly, the death of either the principal or the agent before the
latter commences to act extinguishes the agent's authority; but equity
has so far modified this rule that if, after the death of a principal
and without having notice of his decease, an agent executes his
commission, he can sue on the agency: for otherwise the law would be
penalizing a reasonable and unavoidable ignorance. Similar to this is
the rule, that debtors who pay a manumitted steward, say, of Titius,
without notice of his manumission, are discharged from liability, though
by the strict letter of the law they are not discharged, because they
have not paid the person whom they were bound to pay.

11 It is open to every one to decline a commission of agency, but
acceptance must be followed by execution, or by a prompt resignation, in
order to enable the principal to carry out his purpose either personally
or by the appointment of another agent. Unless the resignation is made
in such time that the principal can attain his object without suffering
any prejudice, an action will lie at his suit, in default of proof by
the agent that he could not resign before, or that his resignation,
though inconvenient, was justifiable.

12 A commission of agency may be made to take effect from a specified
future day, or may be subject to a condition.

13 Finally, it should be observed that unless the agent's services
are gratuitous, the relation between him and the principal will not be
agency proper, but some other kind of contract; for if a remuneration is
fixed, the contract is one of hiring. And generally we may say that in
all cases where, supposing a man's services are gratuitous, there would
be a contract of agency or deposit, there is held to be a contract of
hiring if remuneration is agreed upon; consequently, if you give clothes
to a fuller to clean or to finish, or to a tailor to mend, without
agreeing upon or promising any remuneration, you can be sued by the
action on agency.




TITLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION

Having enumerated the different kinds of contracts, let us now examine
those obligations also which do not originate, properly speaking, in
contract, but which, as they do not arise from a delict, seem to be
quasicontractual.

1 Thus, if one man has managed the business of another during the
latter's absence, each can sue the other by the action on uncommissioned
agency; the direct action being available to him whose business was
managed, the contrary action to him who managed it. It is clear that
these actions cannot properly be said to originate in a contract, for
their peculiarity is that they lie only where one man has come forward
and managed the business of another without having received any
commission so to do, and that other is thereby laid under a legal
obligation even though he knows nothing of what has taken place. The
reason of this is the general convenience; otherwise people might be
summoned away by some sudden event of pressing importance, and without
commissioning any one to look after and manage their affairs, the result
of which would be that during their absence those affairs would be
entirely neglected: and of course no one would be likely to attend to
them if he were to have no action for the recovery of any outlay he
might have incurred in so doing. Conversely, as the uncommissioned
agent, if his management is good, lays his principal under a legal
obligation, so too he is himself answerable to the latter for an account
of his management; and herein he must show that he has satisfied the
highest standard of carefulness, for to have displayed such carefulness
as he is wont to exercise in his own affairs is not enough, if only a
more diligent person could have managed the business better.

2 Guardians, again, who can be sued by the action on guardianship,
cannot properly be said to be bound by contract, for there is no
contract between guardian and ward: but their obligation, as
it certainly does not originate in delict, may be said to be
quasicontractual. In this case too each party has a remedy against
the other: not only can the ward sue the guardian directly on the
guardianship, but the guardian can also sue the ward by the contrary
action of the same name, if he has either incurred any outlay in
managing the ward's property, or bound himself on his behalf, or pledged
his own property as security for the ward's creditors.

3 Again, where persons own property jointly without being partners, by
having, for instance, a joint bequest or gift made to them, and one of
them is liable to be sued by the other in a partition suit because he
alone has taken its fruits, or because the plaintiff has laid out money
on it in necessary expenses: here the defendant cannot properly be said
to be bound by contract, for there has been no contract made between the
parties; but as his obligation is not based on delict, it may be said to
be quasicontractual.

4 The case is exactly the same between joint heirs, one of whom is
liable to be sued by the other on one of these grounds in an action for
partition of the inheritance.

5 So, too, the obligation of an heir to discharge legacies cannot
properly be called contractual, for it cannot be said that the legatee
has contracted at all with either the heir or the testator: yet, as
the heir is not bound by a delict, his obligation would seem to be
quasicontractual.

6 Again, a person to whom money not owed is paid by mistake is thereby
laid under a quasicontractual obligation; an obligation, indeed, which
is so far from being contractual, that, logically, it may be said to
arise from the extinction rather than from the formation of a contract;
for when a man pays over money, intending thereby to discharge a debt,
his purpose is clearly to loose a bond by which he is already bound, not
to bind himself by a fresh one. Still, the person to whom money is thus
paid is laid under an obligation exactly as if he had taken a loan for
consumption, and therefore he is liable to a condiction.

7 Under certain circumstances money which is not owed, and which is paid
by mistake, is not recoverable; the rule of the older lawyers on this
point being that wherever a defendant's denial of his obligation is
punished by duplication of the damages to be recovered--as in actions
under the lex Aquilia, and for the recovery of a legacy--he cannot get
the money back on this plea. The older lawyers, however, applied this
rule only to such legacies of specific sums of money as were given by
condemnation; but by our constitution, by which we have assimilated
legacies and trust bequests, we have made this duplication of damages
on denial an incident of all actions for their recovery, provided the
legatee or beneficiary is a church, or other holy place honoured for its
devotion to religion and piety. Such legacies, although paid when not
due, cannot be reclaimed.




TITLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS

Having thus gone through the classes of contractual and quasicontractual
obligations, we must remark that rights can be acquired by you not only
on your own contracts, but also on those of persons in your power--that
is to say, your slaves and children. What is acquired by the contracts
of your slaves becomes wholly yours; but the acquisitions of children in
your power by obligations must be divided on the principle of ownership
and usufruct laid down in our constitution: that is to say, of the
material results of an action brought on an obligation made in favour
of a son the father shall have the usufruct, though the ownership is
reserved to the son himself: provided, of course, that the action is
brought by the father, in accordance with the distinction drawn in our
recent constitution.

1 Freemen also, and the slaves of another person, acquire for you if
you possess them in good faith, but only in two cases, namely, when they
acquire by their own labour, or in dealing with your property.

2 A usufructuary or usuary slave acquires under the same conditions for
him who has the usufruct or use.

3 It is settled law that a slave jointly owned acquires for all his
owners in the proportion of their property in him, unless he names one
exclusively in a stipulation, or in the delivery of property to himself,
in which case he acquires for him alone; as in the stipulation 'do you
promise to convey to Titius, my master?' If it was by the direction of
one of his joint owners only that he entered into a stipulation, the
effect was formerly doubted; but now it has been settled by our decision
that (as is said above) under such circumstances he acquires for him
only who gave him the order.




TITLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED

An obligation is always extinguished by performance of what is owed,
or by performance of something else with the creditor's assent. It is
immaterial from whom the performance proceeds--be it the debtor himself,
or some one else on his behalf: for on performance by a third person the
debtor is released, whether he knows of it or not, and even when it is
against his will. Performance by the debtor releases, besides himself,
his sureties, and conversely performance by a surety releases, besides
himself, the principal debtor.

1 Acceptilation is another mode of extinguishing an obligation, and
is, in its nature, an acknowledgement of a fictitious performance. For
instance, if something is due to Titius under a verbal contract, and he
wishes to release it, it can be done by his allowing the debtor to ask
'that which I promised thee has thou received?' and by his replying 'I
have received it.' An acceptilation can be made in Greek, provided the
form corresponds to that of the Latin words, as 'exeis labon denaria
tosa; exo labon.' This process, as we said, discharges only obligations
which arise from verbal contract, and no others, for it seemed only
natural that where words can bind words may also loose: but a debt due
from any other cause may be transformed into a debt by stipulation, and
then released by an imaginary verbal payment or acceptilation. So, too,
as a debt can be lawfully discharged in part, so acceptilation may be
made of part only.

2 A stipulation has been invented, commonly called Aquilian, by which
an obligation of any kind whatsoever can be clothed in stipulation form,
and then extinguished by acceptilation; for by this process any kind of
obligation may be novated. Its terms, as settled by Gallus Aquilius,
are as follow: 'Whatever, and on whatsoever ground, you are or shall
be compellable to convey to or do for me, either now or on a future
specified day, and for whatsoever I have or shall have against you an
action personal or real, or any extraordinary remedy, and whatsoever of
mine you hold or possess naturally or civilly, or would possess, or now
fail to possess through some wilful fault of your own--as the value of
each and all of these claims Aulua Agerius stipulated for the payment
of such and such a sum, and payment was formally promised by Numerius
Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast
thou received the whole of what I have today engaged, by the Aquilian
stipulation, to pay thee?' to which Aulus Agerius replied 'I have it,
and account it received.'

3 Novation is another mode of extinguishing an obligation, and takes
place when you owe Seius a sum, and he stipulates for payment thereof
from Titius; for the intervention of a new person gives birth to a new
obligation, and the first obligation is transformed into the second, and
ceases to exist. Sometimes indeed the first stipulation is avoided by
novation even though the second is of no effect: for instance, if you
owe Titius a sum, and he stipulates for payment thereof from a pupil
without his guardian's authority, he loses his claim altogether, for
you, the original debtor, are discharged, and the second obligation is
unenforceable. The same does not hold if one stipulate from a slave; for
then the former debtor continues bound as fully as if one had stipulated
from no one. But when the original debtor is the promisor, a second
stipulation produces a novation only if it contains something new--if
a condition, for instance, or a term, or a surety be added, or taken
away--though, supposing the addition of a condition, we must be
understood to mean that a novation is produced only if the condition
is accomplished: if it fails, the prior obligation continues in force.
Among the older lawyers it was an established rule, that a novation was
effected only when it was with that intention that the parties entered
into the second obligation; but as this still left it doubtful when
the intention was present and when absent, various presumptions were
established as to the matter by different persons in different cases.
We therefore issued our constitution, enacting most clearly that no
novation shall take place unless the contracting parties expressly state
their intention to be the extinction of the prior obligation, and that
in default of such statement, the first obligation shall subsist, and
have the second also added to it: the result being two obligations
resting each on its own independent ground, as is prescribed by the
constitution, and as can be more fully ascertained by perusing the same.

4 Moreover, those obligations which are contracted by consent alone are
dissolved by a contrary agreement. For instance, if Titius and Seius
agree that the latter shall buy an estate at Tusculum for a hundred
aurei, and then before execution on either side by payment of the price
or delivery of the estate they arrange to abandon the sale, they are
both released. The case is the same with hire and the other contracts
which are formed by consent alone.




BOOK IV.




TITLE I. OF OBLIGATIONS ARISING FROM DELICT

Having treated in the preceding Book of contractual and quasicontractual
obligations, it remains to inquire into obligations arising from delict.
The former, as we remarked in the proper place, are divided into four
kinds; but of these latter there is but one kind, for, like obligations
arising from real contracts, they all originate in some act, that is to
say, in the delict itself, such as a theft, a robbery, wrongful damage,
or an injury.

1 Theft is a fraudulent dealing with property, either in itself, or in
its use, or in its possession: an offence which is prohibited by natural
law.

2 The term furtum, or theft, is derived either from furvum, meaning
'black,' because it is effected secretly and under cover, and usually by
night: or from fraus, or from ferre, meaning 'carrying off'; or from the
Greek word phor, thief, which indeed is itself derived from pherein, to
carry off.

3 There are two kinds of theft, theft detected in the commission, and
simple theft: the possession of stolen goods discovered upon search, and
the introduction of stolen goods, are not (as will appear below) so
much specific kinds of theft as actionable circumstances connected
with theft. A thief detected in the commission is termed by the Greeks
ep'autophoro; in this kind is included not only he who is actually
caught in the act of theft, but also he who is detected in the place
where the theft is committed; for instance, one who steals from a house,
and is caught before he has got outside the door; or who steals olives
from an olive garden, or grapes from a vineyard, and is caught while
still in the olive garden or vineyard. And the definition of theft
detected in the commission must be even further extended, so as to
include the thief who is caught or even seen with the stolen goods still
in his hands, whether the place be public or private, and whether the
person who sees or catches him be the owner of the property, or some
third person, provided he has not yet escaped to the place where he
intended to take and deposit his booty: for if he once escapes there,
it is not theft detected in the commission, even if he be found with the
stolen goods upon him. What is simple theft is clear from what has
been said: that is to say, it is all theft which is not detected in the
commission.

4 The offence of discovery of stolen goods occurs when a person's
premises are searched in the presence of witnesses, and the stolen
property is found thereon; this makes him liable, even though innocent
of theft, to a special action for receiving stolen goods. To introduce
stolen goods is to pass them off to a man, on whose premises they are
discovered, provided this be done with the intent that they shall be
discovered on his premises rather than on those of the introducer. The
man on whose premises they are found may sue the latter, though innocent
of theft, in an action for the introduction of stolen goods. There is
also an action for refusal of search, available against him who prevents
another who wishes to look in the presence of witnesses for stolen
property; and finally, by the action for nonproduction of stolen goods,
a penalty is imposed by the praetor's edict on him who has failed to
produce stolen property which is searched for and found on his premises.
But the lastnamed actions, namely, those for receiving stolen goods, for
introducing them, for refusal of search, and for nonproduction, have now
become obsolete: for the search for such property is no longer made in
the old fashion, and accordingly these actions went out of use also.
It is obvious, however, that any one who knowingly receives and hides
stolen property may be sued by the action for simple theft.

5 The penalty for theft detected in the commission is four times the
value, and for simple theft twice the value, of the property stolen,
whether the thief be a slave or a free person.

6 Theft is not confined to carrying away the property of another with
the intent of appropriation, but comprises also all corporeal dealing
with the property of another against the will of the owner. Thus, for
a pawnee to use the thing which he has in pawn, or to use a thing
committed to one's keeping as a deposit, or to put a thing which is lent
for use to a different use than that for which it was lent, is theft; to
borrow plate, for instance, on the representation that the borrower
is going to entertain his friends, and then to carry it away into the
country: or to borrow a horse for a drive, and then to take it out of
the neighbourhood, or like the man in the old story, to take it into
battle.

7 With regard, however, to those persons who put a thing lent for use to
a different purpose than the lender contemplated, the rule is that they
are guilty of theft only if they know it to be contrary to the will of
the owner, and that if he had notice he would refuse permission; but
if they believe that he would give permission, it is not theft: and the
distinction is just, for there is no theft without unlawful intention.

8 It is also said not to be theft if a man turns a thing lent for use to
a use other than he believes its owner would sanction, though in point
of fact its owner is consenting. Whence arose the following question:
if Antoninus solicits the slave of Peri to steal property of the latter,
and convey it to him, and the slave informs Peri of it, who, wishing
to detect Antoninus in the very act, allows the slave to convey the
property to him; can an action of theft, or for corrupting the slave, or
neither, be maintained against Antoninus? The case was submitted to us,
and we examined the conflicting opinions of the earlier jurists on the
matter: some of whom thought that neither action lay, and others, that
Peri might sue on theft only. But we, in order to put an end to such
quibbles, have enacted by our decision that in such case both the action
on theft and that for corrupting a slave shall lie. It is true that the
slave has not been corrupted by the advances made to him, so that the
case does not come within the rules which introduced the action for
such corruption: yet the wouldbe corrupter's intention was to make him
dishonest, so that he is liable to a penal action, exactly as if the
slave had actually been corrupted, lest his immunity from punishment
should encourage others to perpetrate a similar wrong on a slave less
strong to resist temptation.

9 A free man too may be the subject of a theft--for instance, a child in
my power, if secretly removed from my control.

10 So too a man sometimes steals his own property--for instance, a
debtor who purloins the goods which he has pledged to a creditor.

11 Theft may be chargeable on a person who is not the perpetrator; on
him, namely, by whose aid and abetment a theft is committed. Among such
persons we may mention the man who knocks money out of your hand for
another to pick up, or who stands in your way that another may snatch
something from you, or scatters your sheep or your oxen, that another
may steal them, like the man in the old books, who waved a red cloth to
frighten a herd. If the same thing were done as a frolic, without the
intention of assisting a theft, the proper action is not theft, but on
the case. Where, however, Titius commits theft with the aid of Maevius,
both are liable to an action on theft. A man, too, is held to have aided
and abetted a theft who places a ladder under a window, or breaks open
a window or a door, in order that another may steal, or who lends tools
for the breaking of them open, or a ladder to place under a window, if
he knows the object for which they are borrowed. It is clear that a
man is not liable on theft, who, though he advises and instigates an
offence, does not actually aid in its commission.

12 If a child in power, or a slave, steal property of his father or
master, it is theft, and the property is deemed stolen, so that no one
can acquire it by usucapion until it has returned into the hands of the
owner; but no action will lie on the theft, because between a son in
power and his father, or between a slave and his master, no action will
lie on any ground whatsoever. But if the offender is aided and abetted
by a third person, the latter is liable to an action on theft, because a
theft has in fact been committed, and by his aid and abetment.

13 The action on theft will lie at the suit of any person interested in
the security of the property, even though he be not its owner: indeed,
even the owner cannot maintain the action unless he suffers damage from
the loss.

14 Hence, when a pawn is stolen the pawnee can sue, even though his
debtor be perfectly able to pay the debt; for it is more advantageous
to him to rely on the pledge, than to bring a personal action: and this
rule is so unbending that even the pawnor who steals a pawn is suable
for theft by the pawnee.

15 So, if clothes are delivered to be cleaned or finished or mended for
a certain remuneration, and then are stolen, it is the fuller or tailor
who can sue on the theft, and not the owner; for the owner suffers
nothing by the loss, having the action of letting against the fuller or
tailor for the recovery of his property. Similarly a purchaser in good
faith, even though a good title as owner is not given to him, can bring
the action of theft if the property is stolen, exactly like the pawnee.
The action is, however, not maintainable at the suit of a fuller or
tailor, unless he is solvent, that is to say, unless he is able to fully
indemnify the owner; if he is insolvent, the owner cannot recover from
him, and so can maintain an action against the thief, being, on this
hypothesis, interested in the recovery of the property. Where the fuller
or tailor is only partly instead of wholly solvent the rule is the same.

16 The older lawyers held that what has been said of the fuller and
tailor applied also to the borrower for use, on the ground that as
the remuneration which the fuller receives makes him responsible for
custody, so the advantages which the borrower derives from the use
requires him to keep it safely at his peril. Our wisdom, however, has
amended the law in this particular in our decisions, by allowing the
owner the option of suing either the borrower by action on the loan, or
the thief by action of theft; though when his choice has been determined
he cannot change his mind, and resort to the other action. If he prefers
to sue the thief, the borrower is absolutely released from liability;
but if he proceeds against the borrower, he cannot in any way himself
sue the thief on the stealing, though this may be done by the borrower,
who is defendant in the other action, provided that the owner knew, at
the time when he began his action against the borrower, that the thing
had been stolen. If he is ignorant of this, or even if he is merely
doubtful whether the borrower still has the property in his possession
or not, and sues him on the loan, he may, on subsequently learning the
facts, and if he wishes to drop the action which he has commenced, and
sue the thief instead, adopt this course, in which case no obstacle is
to be thrown in his way, because it was in ignorance that he took action
and sued the borrower on the loan. If, however, the owner has been
indemnified by the borrower, in no case can he bring the action of theft
against the thief, as his rights of action pass to the person who has
compensated him for the loss of his property. Conversely it is clear,
that if, at the outset, the owner began an action on the loan against
the borrower, not knowing that the property had been stolen, and
subsequently, on learning this, proceeded against the thief instead,
the borrower is absolutely released from liability, whatever may be the
result of the owner's action against the thief; the rule being the same,
whether the borrower be wholly or only partially insolvent.

17 As a depositary is not answerable for the safe keeping of the thing
deposited, but only for fraud, and, if it is stolen, is not compellable
to make restitution by action of deposit, he has no interest if it is
lost, and therefore the action of theft is maintainable only by the
depositor.

18 Finally, it has been a question whether a child below the age of
puberty, who carries away the property of another, is guilty of theft.
The answer is that, as theft depends on intention, obligation by theft
is not incurred unless the child is near puberty, and so understands its
delinquency.

19 The object of the action on theft, whether it be for double or
quadruple the value of the goods stolen, is merely the recovery of the
penalty; to recover the goods themselves or their value the owner has
an independent remedy by vindication or condiction. The former is
the proper remedy when it is known who is in possession of the goods,
whether this be the thief or any one else: the latter lies against the
thief or his heir, whether in possession of the stolen property or not.




TITLE II. OF ROBBERY

Robbery is chargeable also as theft; for who deals with the property
of another more against that other's will than the robber? And thus the
description of the robber as an audacious thief is a good one. However,
as a special remedy for this offence the praetor has introduced the
action for robbery, or rapine with violence, which may be brought within
a year for four times the value, after a year for simple damages, and
while lies even when only a single thing of the slightest value has been
taken with violence. This fourfold value, however, is not all penalty,
nor is there an independent action for the recovery of the property or
its value, as we observed was the case in the action of theft detected
in the commission; but the thing or its value is included in the
fourfold, so that, in point of fact, the penalty is three times the
value of the property, and this whether the robber be taken in the act
or not; for it would be absurd to treat a robber more lightly than one
who carries off property merely secretly.

1 This action is maintainable only where the robbery is attended with
wrongful intention; consequently, if a man by mistake thought that
property was his own, and, in his ignorance of law, forcibly carried it
off in the belief that it was lawful for an owner to take away, even by
force, a thing belonging to himself from a person in whose possession it
was, he cannot be held liable to this action; and similarly on principle
he would not in such a case be suable for theft. Lest, however, robbers,
under the cloak of such a plea, should discover a method of gratifying
a grasping habit with impunity, the law has been amended upon this point
by imperial constitutions, by which it is enacted that it shall not be
lawful for any one to forcibly carry off movable property, inanimate or
animate, even though he believe it to belong to him; and that whosoever
disobeys this shall forfeit the property, if, in fact, it be his, and if
it be not, shall restore it, and along with it its value in money.
And by the said constitutions it is also declared that this provision
relates not only to movables (of which alone robbery can be committed),
but also to forcible entries on land and houses, so as to deter men from
all violent seizing upon property whatsoever under the cloak of such
excuses.

2 In order to support this action it is not necessary that the goods
of which robbery has been committed should belong to the plaintiff,
provided they were taken from among his property. Thus, if a thing be
let, or lent, or pledged to Titius, or even deposited with him under
such circumstances that he has an interest in its not being carried
off--for instance, by his having undertaken the entire responsibility
for its safe custody;--or if he possesses it in good faith, or has a
usufruct or any other right in it whereby he suffers loss or incurs
liability through its being forcibly taken from him, the action will
be maintainable by him; not necessarily in order to restore to him the
ownership, but only to compensate him for what it is alleged he has lost
by its being taken from his goods or withdrawn from his means. In fact,
it may be said generally that where, supposing property to be taken
secretly, the action of theft will lie, the action on robbery will lie
at suit of the same person, if it be taken with violence.




TITLE III. OF THE LEX AQUILIA

Unlawful damage is actionable under the lex Aquilia, whose first chapter
provides that if a slave of another man, or a quadruped from his flocks
or herds, be unlawfully killed, the offender shall pay to the owner
whatever was the highest value thereof within the year next immediately
preceding.

1 From the fact that this enactment does not speak of quadrupeds simply,
but only of such quadrupeds as are usually included under the idea of
flocks and herds, it is to be inferred that it has no application to
wild animals or to dogs, but only to such beasts as can properly be said
to graze in herds, namely horses, mules, asses, oxen, sheep, and goats.
It is settled, too, that swine come under its operation, for they are
comprehended in 'herds' because they feed in this manner; thus Homer in
his Odyssey, as quote by Aelius Marcianus in his Institutes, says, You
will find him sitting among his swine, and they are feeding by the Rock
of Corax, over against the spring Arethusa.'

2 To kill unlawfully is to kill without any right; thus a man who kills
a robber is not liable to this action, if he could in no other way
escape the danger by which he was threatened.

3 So, too, where one man kills another by misadventure, he is not liable
under this statute, provided there is no fault or carelessness on his
part; otherwise it is different, for under this statute carelessness is
as punishable as wilful wrongdoing.

4 Accordingly, if a man, while playing or practising with javelins, runs
your slave through as he passes by, a distinction is drawn. If it be
done by a soldier in his exercising ground, that is to say, where such
practice is usually conducted, he is in no way to blame; but if it be
done by some one else, his carelessness will make him liable; and so
it is with the soldier, if he do it in some place other than that
appropriated to military exercises.

5 So, too, if a man is trimming a tree, and kills your slave as he
passes by with a bough which he lets fall, he is guilty of negligence,
if it is near a public way, or a private path belonging to a neighbour,
and he does not call out to give people warning; but if he calls out,
and the slave takes no pains to get out of the way, he is not to blame.
Nor would such a man be liable, if he was cutting a tree far away from
a road, or in the middle of a field, even if he did not call out; for
strangers had no business to be there.

6 Again, if a surgeon operates on your slave, and then neglects
altogether to attend to his cure, so that the slave dies in consequence,
he is liable for his carelessness.

7 Sometimes, too, unskilfulness is undistinguishable from
carelessness--as where a surgeon kills your slave by operating upon him
unskilfully, or by giving him wrong medicines;

8 and similarly, if your slave is run over by a team of mules, which
the driver has not enough skill to hold, the latter is suable for
carelessness; and the case is the same if he was simply not strong
enough to hold them, provided they could have been held by a stronger
man. The rule also applies to runaway horses, if the running away is due
to the rider's deficiency either in skill or strength.

9 The meaning of the words of the statute 'whatever was of the highest
value thereof within the year' is that if any one, for instance, kills
a slave of yours, who at the moment of his death is lame, or maimed, or
blind of one eye, but within the year was sound and worth a price, the
person who kills him is answerable not merely for his value at the time
of his death, but for his highest value within the year. It is owing to
this that the action under this statute is deemed to be penal, because
a defendant is sometimes bound to pay a sum not merely equivalent to the
damage he has done, but far in excess of it; and consequently, the right
of suing under the statute does not pass against the heir, though it
would have done so if the damages awarded had never exceeded the actual
loss sustained by the plaintiff.

10 By juristic construction of the statute, though not so enacted in its
terms, it has been settled that one must not only take account, in the
way we have described, of the value of the body of the slave or animal
killed, but must also consider all other loss which indirectly falls
upon the plaintiff through the killing. For instance, if your slave
has been instituted somebody's heir, and, before he has by your order
accepted, he is slain, the value of the inheritance you have missed must
be taken into consideration; and so, too, if one of a pair of mules,
or one of four chariot horses, or one of a company of slave players is
killed, account is to be taken not only of what is killed, but also of
the extent to which the others have been depreciated.

11 The owner whose slave is killed has the option of suing the wrongdoer
for damages in a private action under the lex Aquilia, or of accusing
him on a capital charge by indictment.

12 The second chapter of the lex Aquilia is now obsolete;

13 the third makes provision for all damage which is not covered by the
first. Accordingly, if a slave or some quadruped which comes within
its terms, is wounded, or if a quadruped which does not come within its
terms, such as a dog or wild animal, is wounded or killed, an action is
provided by this chapter; and if any other animal or inanimate thing
is unlawfully damaged, a remedy is herein afforded; for all burning,
breaking, and crushing is hereby made actionable, though, indeed, the
single word 'breaking' covers all these offences, denoting as it does
every kind of injury, so that not only crushing and burning, but any
cutting, bruising, spilling, destroying, or deteriorating is hereby
denominated. Finally, it has been decided that if one man mixes
something with another's win or oil, so as to spoil its natural
goodness, he is liable under this chapter of the statute.

14 It is obvious that, as a man is liable under the first chapter
only where a slave or quadruped is killed by express design or through
negligence on his part, so, too, he is answerable for all other damage
under this chapter only where it results from some wilful act or
carelessness of his. Under this chapter, however, it is not the highest
value which the thing had within a year, but that which it had within
the last thirty days, which is chargeable on the author of the mischief.

15 It is true that here the statute does not expressly say 'the highest
value,' but Sabinus rightly held that the damages must be assessed as
if the words 'highest value' occurred also in this chapter; the Roman
people, who enacted this statute on the proposal of Aquilius the
tribune, having thought it sufficient to use them in the first chapter
only.

16 It is held that a direct action lies under this statute only when the
body of the offender is substantially the instrument of mischief. If a
man occasions loss to another in any other way, a modified action will
usually lie against him; for instance, if he shuts up another man's
slave or quadruped, so as to starve him or it to death, or drives his
horse so hard as to knock him to pieces, or drives his cattle over a
precipice, or persuades his slave to climb a tree or go down a well,
who, in climbing the one or going down the other, is killed or injured
in any part of his body, a modified action is in all these cases given
against him. But if a slave is pushed off a bridge or bank into a
river, and there drowned, it is clear from the facts that the damage
is substantially done by the body of the offender, who is consequently
liable directly under the lex Aquilia. If damage be done, not by the
body or to a body, but in some other form, neither the direct nor the
modified Aquilian action will lie, though it is held that the wrongdoer
is liable to an action on the case; as, for instance, where a man is
moved by pity to loose another's slave from his fetters, and so enables
him to escape.




TITLE IV. OF INJURIES

By injury, in a general sense, is meant anything which is done without
any right. Besides this, it has three special significations;
for sometimes it is used to express outrage, the proper word for
which--contumely--is derived from the verb 'to contemn,' and so is
equivalent to the Greek 'ubris': sometimes it means culpable negligence,
as where damage is said to be done (as in the lex Aquilia) 'with
injury,' where it is equivalent to the Greek 'adikema'; and sometimes
iniquity and injustice, which the Greeks express by 'adikia'; thus a
litigant is said to have received an 'injury' when the praetor or judge
delivers an unjust judgement against him.

1 An injury or outrage is inflicted not only by striking with the
first, a stick, or a whip, but also by vituperation for the purpose of
collecting a crowd, or by taking possession of a man's effects on
the ground that he was in one's debt; or by writing, composing, or
publishing defamatory prose or verse, or contriving the doing of any of
these things by some one else; or by constantly following a matron, or
a young boy or girl below the age of puberty, or attempting anybody's
chastity; and, in a word, by innumerable other acts.

2 An outrage or injury may be suffered either in one's own person, or
in the person of a child in one's power, or even, as now is generally
allowed, in that of one's wife. Accordingly, if you commit an 'outrage'
on a woman who is married to Titius, you can be sued not only in her own
name, but also in those of her father, if she be in his power, and of
her husband. But if, conversely, it be the husband who is outraged, the
wife cannot sue; for wives should be protected by their husbands, not
husbands by their wives. Finally, a father-in-law may sue on an outrage
committed on his daughterinlaw, if the son to whom she is married is in
his power.

3 Slaves cannot be outraged themselves, but their master may be outraged
in their person, though not by all the acts by which an outrage might be
offered to him in the person of a child or wife, but only by aggravated
assaults or such insulting acts as clearly tend to dishonour the master
himself: for instance, by flogging the slave, for which an action lies;
but for mere verbal abuse of a slave, or for striking him with the fist,
the master cannot sue.

4 If an outrage is committed on a slave owned by two or more persons
jointly, the damages to be paid to these severally should be assessed
with reference not to the shares in which they own him, but to their
rank or position, as it is to the reputation and not to the property
that the injury is done;

5 and if an outrage is committed on a slave belonging to Maevius, but
in whom Titius has a usufruct, the injury is deemed to be done to the
former rather than to the latter.

6 But if the person outraged is a free man who believes himself to be
your slave, you have no action unless the object of the outrage was
to bring you into contempt, though he can sue in his own name. The
principle is the same when another man's slave believes himself to
belong to you; you can sue on an outrage committed on him only when its
object is to bring contempt upon you.

7 The penalty prescribed for outrage in the Twelve Tables was, for a
limb disabled, retaliation, for a bone merely broken a pecuniary mulct
proportionate to the great poverty of the age. The praetors, however,
subsequently allowed the person outraged to put his own estimate on the
wrong, the judge having a discretion to condemn the defendant either in
the sum so named by the plaintiff, or in a less amount; and of these
two kinds of penalties that fixed by the Twelve Tables is now obsolete,
while that introduced by the praetors, which is also called 'honorary,'
is most usual in the actual practice of the courts. Thus the pecuniary
compensation awarded for an outrage rises and falls in amount according
to the rank and character of the plaintiff, and this principle is
not improperly followed even where it is a slave who is outraged; the
penalty where the slave is a steward being different from what it is
when he is an ordinary menial, and different again when he is condemned
to wear fetters.

8 The lex Cornelia also contains provisions as to outrages, and
introduced an action on outrage, available to a plaintiff who alleges
that he has been struck or beaten, or that a forcible entry has been
made upon his house; the term 'his house' including not only one which
belongs to him and in which he lives but also one which is hired by him,
or in which he is received gratuitously as a guest.

9 An outrage becomes 'aggravated' either from the atrocious character of
the act, as where a man is wounded or beaten with clubs by another; or
from the place where it is committed, for instance, in the theatre or
forum, or in full sight of the praetor; or from the rank of the person
outraged,--if it be a magistrate, for instance, or if a senator be
outraged by a person of low condition, or a parent by his child, or a
patron by his freedman; for such an injury done to a senator, a parent,
or a patron has a higher pecuniary compensation awarded for it than one
done to a mere stranger, or to a person of low condition. Sometimes too
the position of the wound makes an outrage aggravated, as where a man
is struck in the eye. Whether the person on whom such an outrage is
inflicted is independent or in the power of another is almost entirely
immaterial, it being considered aggravated in either case.

10 Finally, it should be observed that a person who has been outraged
always has his option between the civil remedy and a criminal
indictment. If he prefers the former, the penalty which is imposed
depends, as we have said, on the plaintiff's own estimate of the wrong
he has suffered; if the latter, it is the judge's duty to inflict an
extraordinary penalty on the offender. It should be remembered, however,
that by a constitution of Zeno persons of illustrious or still higher
rank may bring or defend such criminal actions on outrage by an agent,
provided they comply with the requirements of the constitution, as may
be more clearly ascertained by a perusal of the same.

11 Liability to an action on outrages attaches not only to him who
commits the act,--the striking of a blow, for instance--but also
to those who maliciously counsel or abet in the commission, as, for
instance, to a man who gets another struck in the face.

12 The right of action on outrage is lost by condonation; thus, if a man
be outraged, and takes no steps to obtain redress, but at once lets
the matter, as it is said, slip out of his mind, he cannot subsequently
alter his intentions, and resuscitate an affront which he has once
allowed to rest.




TITLE V. OF QUASI-DELICTAL OBLIGATIONS

The obligation incurred by a judge who delivers an unjust or partial
decision cannot properly be called delictal, and yet it does not arise
from contract; consequently, as he cannot but be held to have done a
wrong, even though it may be due to ignorance, his liability would seem
to be quasidelictal, and a pecuniary penalty will be imposed on him at
the judge's discretion.

1 Another case of quasidelictal obligation is that of a person from
whose residence, whether it be his own, or rented, or gratuitously lent
him, anything is thrown or poured out whereby another is injured; the
reason why his liability cannot properly be called delictal being that
it is usually incurred through the fault of some other person, such as
a slave or freedman. Of a similar character is the obligation of one who
keeps something placed or hung over a public way, which might fall and
injure any one. In this last case the penalty has been fixed at ten
aurei; in that of things thrown or poured out of a dwelling-house the
action is for damages equivalent to double the loss sustained, though
if a free man be thereby killed the penalty is fixed at fifty aurei, and
even if he be merely injured he can sue for such damages as the judge
shall in his discretion award; and here the latter should take into
account the medical and other expenses of the plaintiff's illness, as
well as the loss which he has sustained through being disabled from
work.

2 If a son in power lives apart from his father, and anything is thrown
or poured out of his place of residence, or if he has anything so placed
or hung as to be dangerous to the public, it is the opinion of Julian
that no action lies against the father, but that the son should be made
sole defendant; and the same principle should be applied to a son in
power who is made a judge, and delivers an unjust or partial decision.

3 Similarly shipowners, inn and stable keepers are liable as on a
quasi-delict for wilful damage or theft committed in their ships, inns,
or stables, provided the act be done by some or one of their servants
there employed, and not by themselves; for the action which is given in
such cases is not based on contract, and yet as they are in some sense
at fault for employing careless or dishonest servants, their liability
would seem to be quasidelictal. In such circumstances the action which
is given is on the case, and lies at suit of the injured person's heir,
though not against the heir of the shipowner, inn or stable keeper.




TITLE VI. OF ACTIONS

The subject of actions still remains for discussion. An action is
nothing else than the right of suing before a judge for what is due to
one.

1 The leading division of all actions whatsoever, whether tried before
a judge or a referee, is into two kinds, real and personal; that is to
say, the defendant is either under a contractual or delictal obligation
to the plaintiff, in which case the action is personal, and the
plaintiff's contention is that the defendant ought to convey something
to, or do something for him, or of a similar nature; or else, though
there is no legal obligation between the parties, the plaintiff asserts
a ground of action against some one else relating to some thing, in
which case the action is real. Thus, a man may be in possession of some
corporeal thing, in which Titius claims a right of property, and which
the possessor affirms belongs to him; here, if Titius sues for its
recovery, the action is real.

2 It is real also if a man asserts that he has a right of usufruct over
a landed estate or a house, or a right of going or driving cattle over
his neighbour's land, or of drawing water from the same; and so too are
the actions relating to urban servitudes, as, for instance, where a man
asserts a right to raise his house, to have an uninterrupted prospect,
to project some building over his neighbour's land, or to rest the beams
of his own house on his neighbour's wall. Conversely, there are actions
relating to usufructs, and to rustic and urban servitudes, of a contrary
import, which lie at the suit of plaintiffs who deny their opponent's
right of usufruct, of going or driving cattle, of drawing water, of
raising their house, or having an uninterrupted view, of projecting some
building over the plaintiff's land, or of resting the beams of their
house in the plaintiff's wall. These actions too are real, but negative,
and never occur in disputes as to corporeal things, in which the
plaintiff is always the party out of possession; and there is no
action by which the possessor can (as plaintiff) deny that the thing in
question belongs to his adversary, except in one case only, as to which
all requisite information can be gathered from the fuller books of the
Digest.

3 The actions which have hitherto been mentioned, and others which
resemble them, are either of statutory origin, or at any rate belong to
the civil law. There are other actions, however, both real and personal,
which the praetor has introduced in virtue of his jurisdiction, and of
which it is necessary to give examples. For instance, he will usually,
under the circumstances to be mentioned, allow a real action to be
brought with a fictitious allegation--namely, that the plaintiff has
acquired a title by usucapion where this, in fact, is not the case;
or, conversely, he will allow a fictitious plea on the part of the
defendant, to the effect that the plaintiff has not acquired such a
title where, in point of fact, he has.

4 Thus, if possession of some object be delivered on a ground sufficient
to legally transfer the same--for instance, under a sale or gift, as
part of a dowry, or as a legacy--and the transferee has not yet acquired
a complete title by usucapion, he has no direct real action for its
recovery, if he accidentally loses possession, because by the civil law
a real action lies at the suit of the owner only. But as it seemed hard
that in such a case there should be no remedy, the praetor introduced
an action in which the plaintiff, who has lost possession, fictitiously
allege that he has acquired a full title by usucapion, and thus claims
the thing as his own. This is called the Publician action, because it
was first placed in the Edict by a praetor called Publicius.

5 Conversely, if a person, while absent in the service of the State, or
while in the power of an enemy, acquires by usucapion property belonging
to some one resident at home, the latter is allowed, within a year
from the cessation of the possessor's public employment, to sue for
a recovery of the property by a rescission of the usucapion: by
fictitiously alleging, in other words, that the defendant has not thus
acquired it; and the praetor from motives of equity allows this kind of
action to be brought in certain other cases, as to which information may
be gathered from the larger work of the Digest or Pandects.

6 Similarly, if a person conveys away his property in fraud of
creditors, the latter, on obtaining from the governor of the province a
decree vesting in them possession of the debtor's estate, are allowed to
avoid the conveyance, and sue for the recovery of the property; in other
words, to allege that the conveyance has never taken place, and that the
property consequently still belongs to the debtor.

7 Again, the Servian and quasi-Servian actions, the latter of which
is also called 'hypothecary,' are derived merely from the praetor's
jurisdiction. The Servian action is that by which a landlord sues
for his tenant's property, over which he has a right in the nature
of mortgage as security for his rent; the quasi-Servian is a similar
remedy, open to every pledgee or hypothecary creditor. So far then as
this action is concerned, there is no difference between a pledge and a
hypothec: and indeed whenever a debtor and a creditor agree that certain
property of the former shall be the latter's security for his debt, the
transaction is called a pledge or a hypothec indifferently. In other
points, however, there is a distinction between them; for the term
'pledge' is properly used only where possession of the property in
question is delivered to the creditor, especially if that property be
movable: while a hypothec is, strictly speaking, such a right created by
mere agreement without delivery of possession.

8 Besides these, there are also personal actions which the praetor has
introduced in virtue of his jurisdiction, for instance, that brought
to enforce payment of money already owed, and the action on a banker's
acceptance, which closely resembled it. By our constitution, however,
the first of these actions has been endowed with all the advantages
which belonged to the second, and the latter, as superfluous, has
therefore been deprived of all force and expunged from our legislation.
To the praetor is due also the action claiming an account of the
peculium of a slave or child in power, that in which the issue is
whether a plaintiff has made oath, and many others.

9 The action brought to enforce payment of money already owed is
the proper remedy against a person who, by a mere promise, without
stipulation, has engaged to discharge a debt due either from himself or
from some third party. If he has promised by stipulation, he is liable
by the civil law.

10 The action claiming an account of a peculium is a remedy introduced
by the praetor against a master or a father. By strict law, such persons
incur no liability on the contracts of their slaves or children in
power; yet it is only equitable that damages should still be recoverable
against them to the extent of the peculium, in which children in power
and slaves have a sort of property.

11 Again, if a plaintiff, on being challenged by the defendant, deposes
on oath that the latter owes him the money which is the object of the
action, and payment is not made to him, the praetor most justly grants
to him an action in which the issue is, not whether the money is owing,
but whether the plaintiff has sworn to the debt.

12 There is also a considerable number of penal actions which the
praetor has introduced in the exercise of his jurisdiction; for
instance, against those who in any way injure or deface his album;
or who summon a parent or patron without magisterial sanction; or who
violently rescue persons summoned before himself, or who compass such a
rescue; and others innumerable.

13 'Prejudicial' actions would seem to be real, and may be exemplified
by those in which it is inquired whether a man is free born, or has
become free by manumission, or in which the question relates to a
child's paternity. Of these the first alone belongs to the civil law:
the others are derived from the praetor's jurisdiction.

14 The kinds of action having been thus distinguished, it is clear that
a plaintiff cannot demand his property from another in the form 'if it
be proved that the defendant is bound to convey.' It cannot be said that
what already belongs to the plaintiff ought to be conveyed to him, for
conveyance transfers ownership, and what is his cannot be made more his
than it is already. Yet for the prevention of theft, and multiplication
of remedies against the thief, it has been provided that, besides the
penalty of twice or four times the value of the property stolen, the
property itself, or its value, may be recovered from the thief by a
personal action in the form 'if it be proved that the defendant ought to
convey,' as an alternative for the real action which is also available
to the plaintiff, and in which he asserts his ownership of the stolen
property.

15 We call a real action a 'vindication,' and a personal action, in
which the contention is that some property should be conveyed to us, or
some service performed for us, a 'condiction,' this term being derived
from condicere, which has an old meaning of 'giving notice.' To call
a personal action, in which the plaintiff contends that the defendant
ought to convey to him, a condiction, is in reality an abuse of the
term, for nowadays there is no such notice as was given in the old
action of that name.

16 Actions may be divided into those which are purely reparative, those
which are purely penal, and those which are mixed, or partly reparative,
partly penal.

17 All real actions are purely reparative. Of personal actions those
which spring from contract are nearly all of the same character; for
instance, the actions on loans of money, or stipulations, on loans for
use, on deposit, agency, partnership, sale, and hire. If, however,
the action be on a deposit occasioned by a riot, a fire, the fall of a
building, or a shipwreck, the praetor enables the depositor to recover
double damages, provided he sues the bailee in person; he cannot recover
double damages from the bailee's heir, unless he can prove personal
fraud against the latter. In these two cases the action, though on
contract, is mixed.

18 Actions arising from delict are sometimes purely penal, sometimes
are partly penal and partly reparative, and consequently mixed. The sole
object of the action of theft is the recovery of a penalty, whether
that penalty be four times the value of the property stolen, as in
theft detected in the commission, or only twice that value, as in simple
theft. The property itself is recoverable by an independent action in
which the person from whom it has been stolen claims it as his own,
whether it be in the possession of the thief himself or of some third
person; and against the thief himself he may even bring a condiction, to
recover the property or its value.

19 The action on robbery is mixed, for the damages recoverable
thereunder are four times the value of the property taken, threefourths
being pure penalty, and the remaining fourth compensation for the loss
which the plaintiff has sustained. So too the action on unlawful damage
under the lex Aquilia is mixed, not only where the defendant denies his
liability, and so is sued for double damages, but also sometimes where
the claim is for simple damages only; as where a lame or one-eyed slave
is killed, who within the year previous was sound and of large value; in
which case the defendant is condemned to pay his greatest value within
the year, according to the distinction which has been drawn above.
Persons too who are under an obligation as heirs to pay legacies or
trust bequests to our holy churches or other venerable places, and
neglect to do so until sued by the legatee, are liable to a mixed
action, by which they are compelled to give the thing or pay the money
left by the deceased, and, in addition, an equivalent thing or sum as
penalty, the condemnation being thus in twice the value of the original
claim.

20 Some actions are mixed in a different sense, being partly real,
partly personal. They are exemplified by the action for the division of
a 'family,' by which one of two or more joint heirs can enforce against
the other or rest a partition of the inheritance, and by the actions
for the division of common property, and for rectification of boundaries
between adjoining landed proprietors. In these three actions the judge
has power, according as shall to him seem fair and equitable, to adjudge
any part of the joint property, or of the land in dispute, to any one
of the parties, and to order any one of them who seems to have an undue
advantage in the partition or rectification to pay a certain sum of
money to the other or the rest as compensation.

21 The damages recoverable in an action may be either once, twice,
three, or four times the value of the plaintiff's original interest;
there is no action by which more than fourfold damages can be claimed.

22 Single damages only are recoverable in the actions on stipulation,
loan for consumption, sale, hire, agency, and many others besides.

23 Actions claiming double damages are exemplified by those on simple
theft, on unlawful damage under the lex Aquilia, on certain kinds of
deposit, and for corruption of a slave, which lies against any one by
whose instigation and advice another man's slave runs away, or becomes
disobedient to his master, or takes to dissolute habits, or becomes
worse in any way whatsoever, and in which the value of property which
the runaway slave has carried off is taken into account. Finally, as we
remarked above, the action for the recovery of legacies left to places
of religion is of this character.

24 An action for triple damages is grounded when a plaintiff makes an
overstatement of his claim in the writ of summons, in consequence of
which the officers of the court take too large a fee from the defendant.
In such a case the latter will be able to recover from the plaintiff
three times the loss which he sustains by the overcharge, including
in these damages simple compensation for the sum paid in excess of the
proper fee. This is provided by a distinguished constitution in our
Code, under which a statutory condiction clearly lies for the damages in
question.

25 Quadruple damages are recoverable by the action on theft detected
in the commission, by the action on intimidation, and by the action
grounded on the giving of money in order to induce one man to bring a
vexatious suit against another, or to desist from a suit when brought.
Under our constitution too a statutory condiction lies for the recovery
of fourfold damages from officers of the court, who exact money from
defendants in excess of its provisions.

26 There is this difference between the actions on simple theft and for
the corruption of a slave, and the other of which we spoke in connexion
with them, that by the two former double damages are recoverable under
any circumstances; the latter, namely the action on unlawful damage
under the lex Aquilia, and that on certain kinds of deposit, entail
double damages on the defendant only if he denies his liability; if he
admits it, simple damages alone can be recovered. The damages are double
under an action for recovery of legacies left to religious places not
only when the liability is denied, but also when the defendant delays
payment until sued by the order of a magistrate; if he admits his
liability, and pays before being so sued, he cannot be compelled to pay
more than the original debt.

27 The action on intimidation also differs from the others which we
mentioned in the same connexion, in that it contains in its very nature
an implied condition that the defendant is entitled to acquittal if, on
being so ordered by the judge, he restores to the plaintiff the property
of which the latter has been deprived. In other actions of the same
class this is not so; for instance, in the action on theft detected
in the commission, the defendant has under any circumstances to pay
fourfold damages.

28 Again, some actions are equitable, others are actions of strict
law. To the former class belong the actions on sale, hire, unauthorised
agency, agency proper, deposit, partnership, guardianship, loan for use,
mortgage, division of a 'family,' partition of joint property, those
on the innominate contracts of sale by commission and exchange, and the
suit for recovery of an inheritance. Until quite recently it was a moot
point whether the lastnamed was properly an equitable action, but our
constitution has definitely decided the question in the affirmative.

29 Formerly too the action for the recovery of a dowry was an equitable
action: but as we found that the action on stipulation was more
convenient, we have, while establishing many distinctions, attached
all the advantages which the former remedy possessed to the action
on stipulation, when employed for the recovery of a dowry. The former
action being thus by a judicious reform abolished, that on stipulation,
by which it has been replaced, has deservedly been invested with all
the characteristics of an equitable action, so far as and whenever it is
brought for the recovery of a dowry. We have also given persons entitled
to sue for such recovery a tacit hypothec over the husband's property,
but this right is not to give any priority over other hypothecary
creditors except where it is the wife herself who sues to recover
her dowry; it being in her interest only that we have made this new
provision.

30 In equitable actions the judge has full power to assess on good and
fair grounds the amount due to the plaintiff, and in so doing to take
into account counterclaims of the defendant, condemning the latter only
in the balance. Even in actions of strict law counterclaims have been
permitted since a rescript of the Emperor Marcus, the defendant meeting
the plaintiff's claim by a plea of fraud. By our constitution, however,
a wider field has been given to the principle of setoff, when the
counterclaim is clearly established, the amount claimed in the
plaintiff's action, whether real or personal, or whatever its nature,
being reduced by operation of law to the extent of the defendant's
counterclaim. The only exception to this rule is the action on deposit,
against which we have deemed it no less than dishonest to allow any
counterclaim to be set up; for if this were permitted persons might
be fraudulently prevented from recovering property deposited under the
pretence of a setoff.

31 There are some actions again which we call arbitrary, because their
issue depends on an 'arbitrium' or order of the judge. Here, unless on
such order the defendant satisfies the plaintiff's claim by restoring or
producing the property, or by performing his obligation, or in a noxal
action by surrendering the guilty slave, he ought to be condemned. Some
of such actions are real, others personal. The former are exemplified
by the Publician action, the Servian action for the recovery of a tenant
farmer's stock, and the quasi-Servian or socalled hypothecary action;
the latter by the actions on intimidation and on fraud, by that for the
recovery of a thing promised at a particular place, and by the action
claiming production of property. In all these actions, and others of a
similar nature, the judge has full power to determine on good and just
grounds, according to the circumstances of each particular case, the
form in which reparation ought to be made to the plaintiff.

32 It is the judge's duty, in delivering judgement, to make his award as
definite as possible, whether it relate to the payment of money or
the delivery of property, and this even when the plaintiff's claim is
altogether unliquidated.

33 Formerly, if the plaintiff, in his statement of claim, demanded more
than he was entitled to, his case fell to the ground, that is, he lost
even that which was his due, and in such cases the praetor usually
declined to restore him to his previous position, unless he was a minor;
for in this matter too the general rule was observed of giving relief to
minors after inquiry made, if it were proved that they had made an error
owing to their lack of years. If, however, the mistake was entirely
justifiable, and such as to have possibly misled even the discreetest of
men, relief was afforded even to persons of full age, as in the case of
a man who sues for the whole of a legacy, of which part is found to
have been taken away by codicils subsequently discovered; or where such
subsequently discovered codicils give legacies to other persons, so
that, the total amount given in legacies being reduced under the lex
Falcidia, the first legatee is found to have claimed more than the
threefourths allowed by that statute. Overstatement of claim takes four
forms; that is, it may relate either to the object, the time, the place,
or the specification. A plaintiff makes an overclaim in the object when,
for instance, he sues for twenty aurei while only ten are owing to him,
or when, being only part owner of property, he sues to recover the whole
or a greater portion of it than he is entitled to. Overclaim in respect
of time occurs when a man sues for money before the day fixed for
payment, or before the fulfilment of a condition on which payment was
dependent; for exactly as one who pays money only after it falls due
is held to pay less than his just debt, so one who makes his demand
prematurely is held to make an overclaim. Overclaim in respect of place
is exemplified by a man suing at one place for performance of a promise
which it was expressly agreed was to be performed at another, without
any reference, in his claim, to the latter: as, for instance, if a man,
after stipulating thus, 'Do you promise to pay at Ephesus?' were to
claim the money as due at Rome, without any addition as to Ephesus.
This is an overclaim, because by alleging that the money is due at Rome
simply, the plaintiff deprives his debtor of the advantage he might have
derived from paying at Ephesus. On this account an arbitrary action is
given to a plaintiff who sues at a place other than that agreed upon
for payment, in which the advantage which the debtor might have had in
paying at the latter is taken into consideration, and which usually is
greatest in connexion with commodities which vary in price from district
to district, such as wine, oil, or grain; indeed even the interest
on loans of money is different in different places. If, however, a
plaintiff sues at Ephesus--that is, in our example, at the place agreed
upon for the payment--he need do no more than simply allege the debt,
as the praetor too points out, because the debtor has all the advantage
which payment in that particular place gives him. Overclaim in respect
of specification closely resembles overclaim in respect of place, and
may be exemplified by a man's stipulating from you 'do you promise
to convey Stichus or ten aurei?' and then suing for the one or the
other--that is to say, either for the slave only, or for the money only.
The reason why this is an overclaim is that in stipulations of this sort
it is the promisor who has the election, and who may give the slave
or the money, whichever he prefers; consequently if the promisee sues,
alleging that either the money alone, or the slave alone, ought to be
conveyed to him, he deprives his adversary of his election, and thereby
puts him in a worse position, while he himself acquires an undue
advantage. Other cases of this form of overclaim occur where a man,
having stipulated in general terms for a slave, for wine, or for purple,
sues for the particular slave Stichus, or for the particular wine
of Campania, or for Tyrian purple; for in all of these instances he
deprives his adversary of his election, who was entitled, under the
terms of the stipulation, to discharge his obligation in a mode other
than that which is required of him. And even though the specific thing
for which the promisee sues be of little or no value, it is still an
overclaim: for it is often easier for a debtor to pay what is of greater
value than what is actually demanded of him. Such were the rules of the
older law, which, however, has been made more liberal by our own and
Zeno's statutes. Where the overclaim relates to time, the constitution
of Zeno prescribes the proper procedure; if it relates to quantity, or
assumes any other form, the plaintiff, as we have remarked above, is
to be condemned in a sum equivalent to three times any loss which the
defendant may have sustained thereby.

34 If the plaintiff in his statement of claim demands less than is his
due, as for instance by alleging a debt of five aurei, when in fact he
is owed ten, or by claiming only half of an estate the whole of which
really belongs to him, he runs no risk thereby, for, by the constitution
of Zeno of sacred memory, the judge will in the same action condemn the
defendant in the residue as well as in the amount actually claimed.

35 If he demands the wrong thing in his statement of claim, the rule is
that he runs no risk; for if he discovers his mistake, we allow him
to set it right in the same action. For instance, a plaintiff who is
entitled to the slave Stichus may claim Eros; or he may allege that he
is entitled to a conveyance under a will, when his right is founded in
reality upon a stipulation.

36 There are again some actions in which we do not always recover the
whole of what is due to us, but in which we sometimes get the whole,
sometimes only part. For instance, if the fund to which our claim looks
for satisfaction be the peculium of a son in power or a slave, and it
is sufficient in amount to meet that claim, the father or master is
condemned to pay the whole debt; but if it is not sufficient, the
judge condemns him to pay only so far as it will go. Of the mode of
ascertaining the amount of a peculium we will speak in its proper place.

37 So too if a woman sues for the recovery of her dowry, the rule is
that the husband is to be condemned to restore it only so far as he is
able, that is, so far as his means permit. Accordingly, if his means
will enable him to restore the dowry in full, he will be condemned to do
so; if not, he will be condemned to pay only so much as he is able. The
amount of the wife's claim is also usually lessened by the husband's
right of retaining some portion for himself, which he may do to the
extent of any outlay he has made on dowry property, according to
the rule, stated in the larger work of the Digest, that a dowry is
diminished by operation of law to the extent of all necessary outlay
thereon.

38 Again, if a man goes to law with his parent or patron, or if one
partner brings an action of partnership against another, he cannot get
judgement for more than his adversary is able to pay. The rule is the
same when a man is sued on a mere promise to give a present.

39 Very often too a plaintiff obtains judgement for less than he was
owed through the defendant's pleading a setoff: for, as has already been
observed, the judge, acting on equitable principles, would in such a
case take into account the cross demand in the same transaction of the
defendant, and condemn him only in the residue.

40 So too if an insolvent person, who surrenders all his effects to his
creditors, acquires fresh property of sufficient amount to justify such
a step, his creditors may sue him afresh, and compel him to satisfy the
residue of their claims so far as he is able, but not to give up all
that he has; for it would be inhuman to condemn a man to pay his debts
in full who has already been once deprived of all his means.




TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER

As we have already mentioned the action in respect of the peculium of
children in power and slaves, we must now explain it more fully, and
with it the other actions by which fathers and masters are sued for the
debts of their sons or slaves. Whether the contract be made with a slave
or with a child in power, the rules to be applied are much the same; and
therefore, to make our statements as short as possible, we will speak
only of slaves and masters, premising that what we say of them is true
also of children and the parents in whose power they are; where the
treatment of the latter differs from that of the former, we will point
out the divergence.

1 If a slave enters into a contract at the bidding of his master, the
praetor allows the latter to be sued for the whole amount: for it is on
his credit that the other party relies in making the contract.

2 On the same principle the praetor grants two other actions, in which
the whole amount due may be sued for; that called exercitoria, to
recover the debt of a shipmaster, and that called institoria, to recover
the debt of a manager or factor. The former lies against a master
who has appointed a slave to be captain of a ship, to recover a debt
incurred by the slave in his character of captain, and it is called
exercitoria, because the person to whom the daily profits of a ship
belong is termed an exercitor. The latter lies against a man who has
appointed a slave to manage a shop or business, to recover any debt
incurred in that business; it is called institoria, because a person
appointed to manage a business is termed an institor. And these actions
are granted by the praetor even if the person whom one sets over a ship,
a shop, or any other business, be a free man or another man's slave,
because equity requires their application in these latter cases no less
than in the former.

3 Another action of the praetor's introduction is that called
tributoria. If a slave, with the knowledge of his master, devotes his
peculium to a trade or business, the rule which the praetor follows, in
respect of contracts made in the course of such trade or business, is
that the peculium so invested and its profits shall be divided between
the master, if anything is due to him, and the other creditors in the
ratio of their claims. The distribution of these assets is left to the
master, subject to this provision, that any creditor who complains of
having received less than his proper share can bring this action against
him for an account.

4 There is also an action in respect of peculium and of what has been
converted to the uses of the master, under which, if a debt has been
contracted by a slave without the consent of his master, and some
portion thereof has been converted to his uses, he is liable to that
extent, while if no portion has been so converted, he is liable to the
extent of the slave's peculium. Conversion to his uses is any necessary
expenditure on his account, as repayment to his creditors of money
borrowed, repair of his falling house, purchase of corn for his slaves,
or of an estate for him, or any other necessary. Thus, if out of ten
aurei which your slave borrows from Titius, he pays your creditor five,
and spends the remainder in some other way, you are liable for the whole
of the five, and for the remainder to the extent of the peculium: and
from this it is clear that if the whole ten were applied to your uses
Titius could recover the whole from you. Thus, though it is but a single
action which is brought in respect of peculium and of conversion to
uses, it has two condemnatory clauses. The judge by whom the action is
tried first looks to see whether there has been any application to the
uses of the master, and does not proceed to ascertain the amount of
the peculium unless there has been no such application, or a partial
application only. In ascertaining the amount of the peculium deduction
is first made of what is owed to the master or any person in his power,
and the residue only is treated as peculium; though sometimes what
a slave owes to a person in his master's power is not deducted, for
instance, where that person is another slave who himself belongs to the
peculium; thus, where a slave owes a debt to his own vicarial slave, its
amount is not deducted from the peculium.

5 There is no doubt that a person with whom a slave enters into a
contract at the bidding of his master, or who can sue by the actions
exercitoria or institoria, may in lieu thereof bring an action in
respect of the peculium and of conversion to uses; but it would be most
foolish of him to relinquish an action by which he may with the greatest
ease recover the whole of what is owing to him under the contract, and
undertake the trouble of proving a conversion to uses, or the existence
of a peculium sufficient in amount to cover the whole of the debt. So
too a plaintiff who can sue by the action called tributoria may sue in
respect of peculium and conversion to uses, and sometimes the one
action is the more advisable, sometimes the other. The former has this
advantage, that in it the master has no priority; there is no deduction
of debts owing to him, but he and the other creditors stand on precisely
the same footing; while in the action in respect of peculium deduction
is first made of debts owing to the master, who is condemned to pay
over to the creditors only what then remains. On the other hand, the
advantage of the action in respect of peculium is that in it the slave's
whole peculium is liable to his creditors, whereas in the action called
tributoria only so much of it is liable as is invested in the trade
or business; and this may be only a third, a fourth, or even a less
fraction, because the slave may have the rest invested in land or
slaves, or out on loan. A creditor ought therefore to select the one
or the other action by considering their respective advantages in each
particular case; though he certainly ought to choose that in respect of
conversion to uses, if he can prove such conversion.

6 What we have said of the liability of a master on the contracts of
his slave is equally applicable where the contract is made by a child or
grandchild in the power of his or her father or grandfather.

7 A special enactment in favour of children in power is found in the
senatusconsult of Macedo, which has prohibited the giving of loans of
money to such persons, and refused an action to the lender both against
the child, whether he be still in power, or has become independent by
death of the ancestor or emancipation, and against the parent, whether
he still retains the child in his power, or has emancipated him. This
enactment was made by the Senate because it was found that persons
in power, when dragged down by the burden of loans which they had
squandered in profligacy, often plotted against the lives of their
parents.

8 Finally, it should be observed that where a contract has been entered
into by a slave or son in power at his master's or parent's bidding,
or where there has been a conversion to his uses, a condiction may be
brought directly against the parent or master, exactly as if he had
been the original contracting party in person. So too, wherever a man
is suable by either of the actions called exercitoria and institoria,
he may, in lieu thereof, be sued directly by a condiction, because in
effect the contract in such cases is made at his bidding.




TITLE VIII. OF NOXAL ACTIONS

Where a delict, such as theft, robbery, unlawful damages, or outrage,
is committed by a slave, a noxal action lies against the master, who
on being condemned has the option of paying the damages awarded, or
surrendering the slave in satisfaction of the injury.

1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the
term applied to the wrong itself, that is, the theft, damage, robbery,
or outrage.

2 This principle of noxal surrender in lieu of paying damages awarded is
based on most excellent reason, for it would be unjust that the misdeed
of a slave should involve his master in any detriment beyond the loss of
his body.

3 If a master is sued by a noxal action on the ground of his slave's
delict, he is released from all liability by surrendering the slave in
satisfaction of the wrong, and by this surrender his right of ownership
is permanently transferred; though if the slave can procure enough money
to compensate the surrenderee in full for the wrong he did him, he can,
by applying to the praetor, get himself manumitted even against the will
of his new master.

4 Noxal actions were introduced partly by statute, partly by the Edict
of the praetor; for theft, by the statute of the Twelve Tables; for
unlawful damages, by the lex Aquilia; for outrage and robbery, by the
Edict.

5 Noxal actions always follow the person of the wrongdoer. Thus, if your
slave does a wrong while in your power, an action lies against you; if
he becomes the property of some other person, that other is the proper
person to be sued; and if he is manumitted, he becomes directly and
personally liable, and the noxal action is extinguished. Conversely, a
direct action may change into noxal; thus, in an independent person has
done a wrong, and then becomes your slave (as he may in several ways
described in the first Book), a noxal action lies against you in lieu of
the direct action which previously lay against the wrongdoer in person.

6 But no action lies for an offence committed by a slave against his
master, for between a master and a slave in his power there can be no
obligation; consequently, if the slave becomes the property of some
other person, or is manumitted, neither he nor his new master can be
sued; and on the same principle, if another man's slave commits a wrong
against you, and then becomes your property, the action is extinguished,
because it has come into a condition in which an action cannot exist;
the result being that even if the slave passes again out of your power
you cannot sue. Similarly, if a master commits a wrong against his
slave, the latter cannot sue him after manumission or alienation.

7 These rules were applied by the ancients to wrongs committed by
children in power no less than by slaves; but the feeling of modern
times has rightly rebelled against such inhumanity, and noxal surrender
of children under power has quite gone out of use. Who could endure in
this way to give up a son, still more a daughter, to another, whereby
the father would be exposed to greater anguish in the person of a son
than even the latter himself, while mere decency forbids such treatment
in the case of a daughter? Accordingly, such noxal actions are permitted
only where the wrongdoer is a slave, and indeed we find it often laid
down by old legal writers that sons in power may be sued personally for
their own delicts.




TITLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS

A noxal action was granted by the statute of the Twelve Tables in cases
of mischief done through wantonness, passion, or ferocity, by irrational
animals; it being by an enactment of that statute provided, that if the
owner of such an animal is ready to surrender it as compensation for the
damage, he shall thereby be released from all liability. Examples of
the application of this enactment may be found in kicking by a horse,
or goring by a bull, known to be given that way; but the action does not
lie unless in causing the damage the animal is acting contrary to its
natural disposition; if its nature be to be savage, this remedy is not
available. Thus, if a bear runs away from its owner, and causes damage,
the quondam owner cannot be sued, for immediately with its escape his
ownership ceased to exist. The term pauperies, or 'mischief,' is used to
denote damage done without there being any wrong in the doer of it, for
an unreasoning animal cannot be said to have done a wrong. Thus far as
to the noxal action.

1 It is, however, to be observed that the Edict of the aedile forbids
dogs, boars, bears, or lions to be kept near where there is a public
road, and directs that if any injury be caused to a free man through
disobedience of this provision, the owner of the beast shall be
condemned to pay such sum as to the judge shall seem fair and equitable:
in case of any other injury the penalty is fixed at double damages.
Besides this aedilician action, that on pauperies may also be sometimes
brought against the same defendant; for when two or more actions,
especially penal ones, may be brought on one and the same ground, the
bringing of one does not debar the plaintiff from subsequently bringing
the other.




TITLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION

We must now remark that a man may sue either for himself, or for another
as attorney, guardian, or curator: whereas formerly one man could not
sue for another except in public suits, as an assertor of freedom,
and in certain actions relating to guardianship. The lex Hostilia
subsequently permitted the bringing of an action of theft on behalf
of persons who were in the hands of an enemy, or absent on State
employment, and their pupils. It was, however, found extremely
inconvenient to be unable to either bring or defend an action on behalf
of another, and accordingly men began to employ attorneys for this
purpose; for people are often hindered by illhealth, age, unavoidable
absence, and many other causes from attending to their own business.

1 For the appointment of an attorney no set form of words is necessary,
nor need it be made in the presence of the other party, who indeed
usually knows nothing about it; for in law any one is your attorney whom
you allow to bring or defend an action on your behalf.

2 The modes of appointing guardians and curators have been explained in
the first Book.




TITLE XI. OF SECURITY

The old system of taking security from litigants differed from that
which has more recently come into use.

Formerly the defendant in a real action was obliged to give security, so
that if judgement went against him, and he neither gave up the property
which was in question, nor paid the damages assessed, the plaintiff
might be able to sue either him or his sureties: and this is called
security for satisfaction of judgement, because the plaintiff stipulates
for payment to himself of the sum at which the damages are assessed.
And there was all the more reason for compelling the defendant in a real
action to give security if he was merely the representative of another.
From the plaintiff in a real action no security was required if it was
on his own account that he sued, but if he was merely an attorney, he
was required to give security for the ratification of his proceedings
by his principal, owing to the possibility of the latter's subsequently
suing in person on the same claim. Guardians and curators were required
by the Edict to give the same security as attorneys; but when they
appeared as plaintiffs they were sometimes excused.

1 So much for real actions. In personal actions the same rules applied,
so far as the plaintiff was concerned, as we have said obtained in real
actions. If the defendant was represented by another person, security
had always to be given, for no one is allowed to defend another without
security; but if the defendant was sued on his own account, he was not
compelled to give security for satisfaction of judgement.

2 Nowadays, however, the practice is different; for if the defendant
is sued on his own account, he is not compelled to give security
for repayment of the damages assessed, whether the action be real or
personal; all that he has to do is to enter into a personal engagement
that he will subject himself to the jurisdiction of the court down
to final judgement; the mode of making such engagement being either
a promise under oath, which is called a sworn recognizance, or a bare
promise, or giving of sureties, according to the defendant's rank and
station.

3 But the case is different where either plaintiff or defendant appears
by an attorney. If the plaintiff does so, and the attorney's appointment
is not enrolled in the records, or confirmed by the principal personally
in court, the attorney must give security for ratification of his
proceedings by his principal; and the rule is the same if a guardian,
curator, or other person who has undertaken the management of another's
affairs begins an action through an attorney.

4 If a defendant appears, and is ready to appoint an attorney to defend
the action for him, he can do this either by coming personally into
court, and confirming the appointment by the solemn stipulations
employed when security is given for satisfaction of judgement, or by
giving security out of court whereby, as surety for his attorney, he
guarantees the observance of all the clauses of the socalled security
for satisfaction of judgement. In all such cases, he is obliged to give
a right of hypothec over all his property, whether the security be given
in or out of court, and this right avails against his heirs no less than
against himself. Finally, he has to enter into a personal engagement
or recognizance to appear in court when judgement is delivered; and in
default of such appearance his surety will have to pay all the damages
to which he is condemned, unless notice of appeal is given.

5 If, however, the defendant for some reason or other does not appear,
and another will defend for him, he may do so, and it is immaterial
whether the action be real or personal, provided he will give security
for satisfaction of the judgement in full; for we have already mentioned
the old rule, that no one is allowed to defend another without security.

6 All this will appear more clearly and fully by reference to the daily
practice of the courts, and to actual cases of litigation:

7 and it is our pleasure that these rules shall hold not only in this
our royal city, but also in all our provinces, although it may be
that through ignorance the practice elsewhere was different: for it
is necessary that the provinces generally shall follow the lead of the
capital of our empire, that is, of this royal city, and observe its
usages.




TITLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT
BY AND AGAINST HEIRS

It should be here observed that actions founded on statutes,
senatusconsults, and imperial constitutions could be brought at any
length of time from the accrual of the cause of action, until certain
limits were fixed for actions both real and personal by imperial
enactments; while actions which were introduced by the praetor in the
exercise of his jurisdiction could, as a rule, be brought only within a
year, that being the duration of his authority. Some praetorian actions,
however, are perpetual, that is to say, can be brought at any time
which does not exceed the limit fixed by the enactments referred to; for
instance, those granted to 'possessors of goods' and other persons who
are fictitiously represented as heirs. So, too, the action for theft
detected in the commission, though praetorian, is perpetual, the praetor
having judged it absurd to limit it by a year.

1 Actions which will lie against a man under either the civil or the
praetorian law will not always lie against his heir, the rule being
absolute that for delict--for instance, theft, robbery, outrage, or
unlawful damage--no penal action can be brought against the heir. The
heir of the person wronged, however, may bring these actions, except
in outrage, and similar cases, if any. Sometimes, even an action on
contract cannot be brought against the heir; this being the case where
the testator has been guilty of fraud, and his heir has not profited
thereby. If, however, a penal action, such as those we have mentioned,
has been actually commenced by the original parties, it is transmitted
to the heirs of each.

2 Finally, it must be remarked that if, before judgement is pronounced,
the defendant satisfies the plaintiff, the judges ought to absolve him,
even though he was liable to condemnation at the time when the action
was commenced; this being the meaning of the old dictum, that all
actions involve the power of absolution.




TITLE XIII. OF EXCEPTIONS

We have next to examine the nature of exceptions. Exceptions are
intended for the protection of the defendant, who is often in this
position, that though the plaintiff's case is a good one in the
abstract, yet as against him, the particular defendant, his contention
is inequitable.

1 For instance, if you are induced by duress, fraud, or mistake to
promise Titius by stipulation what you did not owe him, it is clear that
by the civil law you are bound, and that the action on your promise is
well grounded; yet it is inequitable that you should be condemned, and
therefore in order to defeat the action you are allowed to plead
the exception of duress, or of fraud, or one framed to suit the
circumstances of the cases.

2 So too, if, as a preliminary to an advance of money, one stipulates
from you for its repayment, and then never advances it after all, it
is clear that he can sue you for the money, and you are bound by your
promise to give it; but it would be iniquitous that you should be
compelled to fulfil such an engagement, and therefore you are permitted
to defend yourself by the exception that the money, in point of fact,
was never advanced. The time within which this exception can be pleaded,
as we remarked in a former Book, has been shortened by our constitution.

3 Again, if a creditor agrees with his debtor not to sue for a debt, the
latter still remains bound, because an obligation cannot be extinguished
by a bare agreement; accordingly, the creditor can validly bring against
him a personal action claiming payment of the debt, though, as it would
be inequitable that he should be condemned in the face of the agreement
not to sue, he may defend himself by pleading such agreement in the form
of an exception.

4 Similarly, if at his creditor's challenge a debtor affirms on oath
that he is not under an obligation to convey, he still remains bound;
but as it would be unfair to examine whether he has perjured himself,
he can, on being sued, set up the defence that he has sworn to the
nonexistence of the debt. In real actions, too, exceptions are equally
necessary; thus, if on the plaintiff's challenge the defendant swears
that the property is his, there is nothing to prevent the former
from persisting in his action; but it would be unfair to condemn the
defendant, even though the plaintiff's contention that the property is
his be well founded.

5 Again, an obligation still subsists even after judgement in an action,
real or personal, in which you have been defendent, so that in strict
law you may be sued again on the same ground of action; but you can
effectually meet the claim by pleading the previous judgement.

6 These examples will have been sufficient to illustrate our meaning;
the multitude and variety of the cases in which exceptions are necessary
may be learnt by reference to the larger work of the Digest or Pandects.

7 Some exceptions derive their force from statutes or enactments
equivalent to statutes, others from the jurisdiction of the praetor;

8 and some are said to be perpetual or peremptory, others to be
temporary or dilatory.

9 Perpetual or peremptory exceptions are obstructions of unlimited
duration, which practically destroy the plaintiff's ground of action,
such as the exceptions of fraud, intimidation, and agreement never to
sue.

10 Temporary or dilatory exceptions are merely temporary obstructions,
their only effect being to postpone for a while the plaintiff's right
to sue; for example, the plea of an agreement not to sue for a certain
time, say, five years; for at the end of that time the plaintiff can
effectually pursue his remedy. Consequently persons who would like to
sue before the expiration of the time, but are prevented by the plea of
an agreement to the contrary, or something similar, ought to postpone
their action till the time specified has elapsed; and it is on this
account that such exceptions are called dilatory. If a plaintiff brought
his action before the time had expired, and was met by the exception,
this would debar him from all success in those proceedings, and formerly
he was unable to sue again, owing to his having rashly brought the
matter into court, whereby he consumed his right of action, and lost all
chance of recovering what was his due. Such unbending rules, however, we
do not at the present day approve. Plaintiffs who venture to commence
an action before the time agreed upon, or before the obligation is yet
actionable, we subject to the constitution of Zeno, which that most
sacred legislator enacted as to overclaims in respect of time; whereby,
if the plaintiff does not observe the stay which he has voluntarily
granted, or which is implied in the very nature of the action, the time
during which he ought to have postponed his action shall be doubled, and
at its termination the defendant shall not be suable until he has been
reimbursed for all expenses hitherto incurred. So heavy a penalty it is
hoped will induce plaintiffs in no case to sue until they are entitled.

11 Moreover, some personal incapacities produce dilatory exceptions,
such as those relating to agency, supposing that a party wishes to be
represented in an action by a soldier or a woman; for soldiers may not
act as attorneys in litigation even on behalf of such near relatives as
a father, mother, or wife, not even in virtue of an imperial rescript,
though they may attend to their own affairs without committing a breach
of discipline. We have sanctioned the abolition of those exceptions, by
which the appointment of an attorney was formerly opposed on account of
the infamy of either attorney or principal, because we found that they
no longer were met with in actual practice, and to prevent the trial of
the real issue being delayed by disputes as to their admissibility and
operation.




TITLE XIV. OF REPLICATIONS

Sometimes an exception, which prima facie seems just to the defendant,
is unjust to the plaintiff, in which case the latter must protect
himself by another allegation called a replication, because it parries
and counteracts the force of the exception. For example, a creditor may
have agreed with his debtor not to sue him for money due, and then have
subsequently agreed with him that he shall be at liberty to do so; here
if the creditor sues, and the debtor pleads that he ought not to be
condemned on proof being given of the agreement not to sue, he bars the
creditor's claim, for the plea is true, and remains so in spite of the
subsequent agreement; but as it would be unjust that the creditor should
be prevented from recovering, he will be allowed to plead a replication,
based upon that agreement.

1 Sometimes again a replication, though prima facie just, is unjust
to the defendant; in which case he must protect himself by another
allegation called a rejoinder:

2 and if this again, though on the face of it just, is for some reason
unjust to the plaintiff, a still further allegation is necessary for his
protection, which is called a surrejoinder.

3 And sometimes even further additions are required by the multiplicity
of circumstances under which dispositions are made, or by which they
are subsequently affected; as to which fuller information may easily be
gathered from the larger work of the Digest.

4 Exceptions which are open to a defendant are usually open to his
surety as well, as indeed is only fair: for when a surety is sued the
principal debtor may be regarded as the real defendant, because he can
be compelled by the action on agency to repay the surety whatsoever he
has disbursed on his account. Accordingly, if the creditor agrees with
his debtor not to sue, the latter's sureties may plead this agreement,
if sued themselves, exactly as if the agreement had been made with
them instead of with the principal debtor. There are, however, some
exceptions which, though pleadable by a principal debtor, are not
pleadable by his surety; for instance, if a man surrenders his property
to his creditors as an insolvent, and one of them sues him for his debt
in full, he can effectually protect himself by pleading the surrender;
but this cannot be done by his surety, because the creditor's main
object, in accepting a surety for his debtor, is to be able to have
recourse to the surety for the satisfaction of his claim if the debtor
himself becomes insolvent.




TITLE XV. OF INTERDICTS

We have next to treat of interdicts or of the actions by which they have
been superseded. Interdicts were formulae by which the praetor either
ordered or forbad some thing to be done, and occurred most frequently in
case of litigation about possession or quasi-possession.

1 The first division of interdicts is into orders of abstention, of
restitution, and of production. The first are those by which the praetor
forbids the doing of some act--for instance, the violent ejection of
a bona fide possessor, forcible interference with the internment of a
corpse in a place where that may lawfully be done, building upon sacred
ground, or the doing of anything in a public river or on its banks
which may impede its navigation. The second are those by which he orders
restitution of property, as where he directs possession to be restored
to a 'possessor of goods' of things belonging to an inheritance, and
which have hitherto been in the possession of others under the title
of heir, or without any title at all; or where he orders a person to be
reinstated in possession of land from which he has been forcibly ousted.
The third are those by which he orders the production of persons or
property; for instance, the production of a person whose freedom is in
question, of a freedman whose patron wishes to demand from him certain
services, or of children on the application of the parent in whose power
they are. Some think that the term interdict is properly applied only to
orders of abstention, because it is derived from the verb 'interdicere,'
meaning to denounce or forbid, and that orders of restitution or
production are properly termed decrees; but in practice they are all
called interdicts, because they are given 'inter duos,' between two
parties.

2 The next division is into interdicts for obtaining possession, for
retaining possession, and for recovering possession.

3 Interdicts for obtaining possession are exemplified by the one given
to a 'possessor of goods,' which is called 'Quorum bonorum,' and which
enjoins that whatever portion of the goods, whereof possession has been
granted to the claimant, is in the hands of one who holds by the title
of heir or as mere possessor only, shall be delivered up to the grantee
of possession. A person is deemed to hold by the title of heir who
thinks he is an heir; he is deemed to hold as mere possessor who relies
on no title at all, but holds a portion of the whole of the inheritance,
knowing that he is not entitled. It is called an interdict for obtaining
possession, because it is available only for initiating possession;
accordingly, it is not granted to a person who has already had and lost
possession. Another interdict for obtaining possession is that named
after Salvius, by which the landlord gets possession of the tenant's
property which has been hypothecated as a security for rent.

4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for
retaining possession, and are employed when two parties claim ownership
in anything, in order to determine which shall be defendant and which
plaintiff; for no real action can be commenced until it is ascertained
which of the parties is in possession, because law and reason both
require that one of them shall be in possession and shall be sued by
the other. As the role of defendant in a real action is far more
advantageous than that of plaintiff, there is almost invariably a keen
dispute as to which party is to have possession pending litigation: the
advantage consisting in this, that, even if the person in possession has
no title as owner, the possession remains to him unless and until the
plaintiff can prove his own ownership: so that where the rights of the
parties are not clear, judgement usually goes against the plaintiff.
Where the dispute relates to the possession of land or buildings,
the interdict called 'Uti possidetis' is employed; where to movable
property, that called 'Utrubi.' Under the older law their effects were
very different. In 'Uti possidetis' the party in possession at the
issue of the interdict was the winner, provided he had not obtained
that possession from his adversary by force, or clandestinely, or by
permission; whether he had obtained it from some one else in any of
these modes was immaterial. In 'Utrubi' the winner was the party who
had been in possession the greater portion of the year next immediately
preceding, provided that possession had not been obtained by force, or
clandestinely, or by permission, from his adversary. At the present
day, however, the practice is different, for as regards the right to
immediate possession the two interdicts are now on the same footing;
the rule being, that whether the property in question be movable or
immovable, the possession is adjudged to the party who has it at the
commencement of the action, provided he had not obtained it by force, or
clandestinely, or by permission, from his adversary.

5 A man's possession includes, besides his own personal possession, the
possession of any one who holds in his name, though not subject to his
power; for instance, his tenant. So also a depositary or borrower for
use may possess for him, as is expressed by the saying that we retain
possession by any one who holds in our name. Moreover, mere intention
suffices for the retention of possession; so that although a man is not
in actual possession either himself or through another, yet if it was
not with the intention of abandoning the thing that he left it, but with
that of subsequently returning to it, he is deemed not to have parted
with the possession. Through what persons we can obtain possession has
been explained in the second Book; and it is agreed on all hands that
for obtaining possession intention alone does not suffice.

6 An interdict for recovering possession is granted to persons who have
been forcibly ejected from land or buildings; their proper remedy being
the interdict 'Unde vi,' by which the ejector is compelled to restore
possession, even though it had been originally obtained from him by the
grantee of the interdict by force, clandestinely, or by permission.
But by imperial constitutions, as we have already observed, if a man
violently seizes on property to which he has a title, he forfeits his
right of ownership; if on property which belongs to some one else,
he has not only to restore it, but also to pay the person whom he has
violently dispossessed a sum of money equivalent to its value. In cases
of violent dispossession the wrongdoer is liable under the lex Iulia
relating to private or public violence, by the former being meant
unarmed force, by the latter dispossession effected with arms; and
the term 'arms' must be taken to include not only shields, swords, and
helmets, but also sticks and stones.

7 Thirdly, interdicts are divided into simple and double. Simple
interdicts are those wherein one party is plaintiff and the other
defendant, as is always the case in orders of restitution or production;
for he who demands restitution or production is plaintiff, and he from
whom it is demanded is defendant. Of interdicts which order abstention
some are simple, others double. The simple are exemplified by those
wherein the praetor commands the defendant to abstain from desecrating
consecrated ground, or from obstructing a public river or its banks; for
he who demands such order is the plaintiff, and he who is attempting
to do the act in question is defendant. Of double interdicts we have
examples in Uti possidetis and Utrubi; they are called double because
the footing of both parties is equal, neither being exclusively
plaintiff or defendant, but each sustaining the double role.

8 To speak of the procedure and result of interdicts under the older law
would now be a waste of words; for when the procedure is what is called
'extraordinary,' as it is nowadays in all actions, the issue of an
interdict is unnecessary, the matter being decided without any such
preliminary step in much the same way as if it had actually been taken,
and a modified action had arisen on it.




TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION

It should here be observed that great pains have been taken by those
who in times past had charge of the law to deter men from reckless
litigation, and this is a thing that we too have at heart. The best
means of restraining unjustifiable litigation, whether on the part of
a plaintiff or of a defendant, are money fines, the employment of the
oath, and the fear of infamy.

1 Thus under our constitution, the oath has to be taken by every
defendant, who is not permitted even to state his defence until he
swears that he resists the plaintiff's claim because he believes that
his cause is a good one. In certain cases where the defendant denies his
liability the action is for double or treble the original claim, as in
proceedings on unlawful damages, and for recovery of legacies bequeathed
to religious places. In various actions the damages are multiplied at
the outset; in an action on theft detected in the commission they are
quadrupled; for simple theft they are doubled; for in these and some
other actions the damages are a multiple of the plaintiff's loss,
whether the defendant denies or admits the claim. Vexatious litigation
is checked on the part of the plaintiff also, who under our constitution
is obliged to swear on oath that his action is commenced in good faith;
and similar oaths have to be taken by the advocates of both parties, as
is prescribed in other of our enactments. Owing to these substitutes the
old action of dishonest litigation has become obsolete. The effect
of this was to penalize the plaintiff in a tenth part of the value he
claimed by action; but, as a matter of fact, we found that the penalty
was never exacted, and therefore its place has been taken by the oath
above mentioned, and by the rule that a plaintiff who sues without just
cause must compensate his opponent for all losses incurred, and also pay
the costs of the action.

2 In some actions condemnation carries infamy with it, as in those on
theft, robbery, outrage, fraud, guardianship, agency, and deposit, if
direct, not contrary; also in the action on partnership, which is always
direct, and in which infamy is incurred by any partner who suffers
condemnation. In actions on theft, robbery, outrage, and fraud, it is
not only infamous to be condemned, but also to compound, as indeed is
only just; for obligation based on delict differs widely from obligation
based on contract.

3 In commencing an action, the first step depends upon that part of the
Edict which relates to summons; for before anything else is done, the
adversary must be summoned, that is to say, must be called before
the judge who is to try the action. And herein the praetor takes into
consideration the respect due to parents, patrons, and the children and
parents of patrons, and refuses to allow a parent to be summoned by his
child, or a patron by his freedman, unless permission so to do has been
asked of and obtained from him; and for nonobservance of this rule he
has fixed a penalty of fifty solidi.




TITLE XVII. OF THE DUTIES OF A JUDGE

Finally we have to treat of the duties of a judge; of which the first is
not to judge contrary to statutes, the imperial laws, and custom.

1 Accordingly, if he is trying a noxal action, and thinks that the
master ought to be condemned, he should be careful to word his judgement
thus: 'I condemn Publius Maevius to pay ten aurei to Lucius Titius, or
to surrender to him the slave that did the wrong.'

2 If the action is real, and he finds against the plaintiff, he ought to
absolve the defendant; if against the latter, he ought to order him
to give up the property in question, along with its fruits. If the
defendant pleads that he is unable to make immediate restitution and
applies for execution to be stayed, and such application appears to
be in good faith, it should be granted upon the terms of his finding a
surety to guarantee payment of the damages assessed, if restitution be
not made within the time allowed. If the subject of the action be an
inheritance, the same rule applies as regards fruits as we laid down in
speaking of actions for the recovery of single objects. If the defendant
is a mala fide possessor, fruits which but for his own negligence he
might have gathered are taken into account in much the same way in both
actions; but a bona fide possessor is not held answerable for fruits
which he has not consumed or has not gathered, except from the moment
of the commencement of the action, after which time account is taken as
well of fruits which might have been gathered but for his negligence as
of those which have been gathered and consumed.

3 If the object of the action be production of property, its mere
production by the defendant is not enough, but it must be accompanied by
every advantage derived from it; that is to say, the plaintiff must be
placed in the same position he would have been in if production had
been made immediately on the commencement of the action. Accordingly
if, during the delay occasioned by trial, the possessor has completed
a title to the property by usucapion, he will not be thereby saved from
being condemned. The judge ought also to take into account the mesne
profits, or fruits produced by the property in the interval between the
commencement of the action and judgement. If the defendant pleads that
he is unable to make immediate production, and applies for a stay, and
such application appears to be in good faith, it should be granted on
his giving security that he will render up the property. If he neither
complies at once with the judge's order for production, nor gives
security for doing so afterwards, he ought to be condemned in a sum
representing the plaintiff's interest in having production at the
commencement of the proceedings.

4 In an action for the division of a 'family' the judge ought to assign
to each of the heirs specific articles belonging to the inheritance, and
if one of them is unduly favoured, to condemn him, as we have already
said, to pay a fixed sum to the other as compensation. Again, the fact
the one only of two jointheirs has gathered the fruits of land comprised
in the inheritance, or has damaged or consumed something belonging
thereto, is ground for ordering him to pay compensation to the other;
and it is immaterial, so far as this action is concerned, whether the
jointheirs are only two or more in number.

5 The same rules are applied in an action for partition of a number
of things held by joint-owners. If such an action be brought for the
partition of a single object, such as an estate, which easily admits
of division, the judge ought to assign a specific portion of each
jointowner, condemning such one as seems to be unduly favoured to pay
a fixed sum to the other as compensation. If the property cannot be
conveniently divided--as a slave, for instance, or a mule--it ought
to be adjudged entirely to one only of the jointowners, who should be
ordered to pay a fixed sum to the other as compensation.

6 In an action for rectification of boundaries the judge ought to
examine whether an adjudication of property is actually necessary. There
is only one case where this is so; where, namely, convenience requires
that the line of separation between fields belonging to different owners
shall be more clearly marked than heretofore, and where, accordingly,
it is requisite to adjudge part of the one's field to the owner of the
other, who ought, in consequence, to be ordered to pay a fixed sum as
compensation to his neighbour. Another ground for condemnation in
this action is the commission of any malicious act, in respect of the
boundaries, by either of the parties, such as removal of landmarks, or
cutting down boundary trees: as also is contempt of court, expressed by
refusal to allow the fields to be surveyed in accordance with a judge's
order.

7 Wherever property is adjudged to a party in any of these actions, he
at once acquires a complete title thereto.




TITLE XVIII. OF PUBLIC PROSECUTIONS

Public prosecutions are not commenced as actions are, nor indeed is
there any resemblance between them and the other remedies of which we
have spoken; on the contrary, they differ greatly both in the mode in
which they are commenced, and in the rules by which they are conducted.

1 They are called public because as a general rule any citizen may come
forward as prosecutor in them.

2 Some are capital, others not. By capital prosecutions we mean those
in which the accused may be punished with the extremest severity of the
law, with interdiction from water and fire, with deportation, or with
hard labour in the mines: those which entail only infamy and pecuniary
penalties are public, but not capital.

3 The following statutes relate to public prosecutions. First, there is
the lex Iulia on treason, which includes any design against the Emperor
or State; the penalty under it is death, and even after decease the
guilty person's name and memory are branded with infamy.

4 The lex Iulia, passed for the repression of adultery, punishes with
death not only defilers of the marriage-bed, but also those who indulge
in criminal intercourse with those of their own sex, and inflicts
penalties on any who without using violence seduce virgins or widows
of respectable character. If the seducer be of reputable condition,
the punishment is confiscation of half his fortune; if a mean person,
flogging and relegation.

5 The lex Cornelia on assassination pursues those persons, who commit
this crime with the sword of vengeance, and also all who carry weapons
for the purpose of homicide. By a 'weapon,' as is remarked by Gaius in
his commentary on the statute of the Twelve Tables, is ordinarily meant
some missile shot from a bow, but it also signifies anything thrown with
the hand; so that stones and pieces of wood or iron are included in the
term. 'Telum,' in fact, or 'weapon,' is derived from the Greek 'telou,'
and so means anything thrown to a distance. A similar connexion of
meaning may be found in the Greek word 'belos,' which corresponds to our
'telum,' and which is derived from 'ballesthai,' to throw, as we learn
from Xenophon, who writes, 'they carried with them 'belei,' namely
spears, bows and arrows, slings, and large numbers of stones.'
'Sicarius,' or assassin, is derived from 'sica,' a long steel knife.
This statute also inflicts punishment of death on poisoners, who kill
men by their hateful arts of poison and magic, or who publicly sell
deadly drugs.

6 A novel penalty has been devised for a most odious crime by another
statute, called the lex Pompeia on parricide, which provides that any
person who by secret machination or open act shall hasten the death of
his parent, or child, or other relation whose murder amounts in law to
parricide, or who shall be an instigator or accomplice of such a crime,
although a stranger, shall suffer the penalty of parricide. This is not
execution by the sword or by fire, or any ordinary form of punishment,
but the criminal is sewn up in a sack with a dog, a cock, a viper, and
an ape, and in this dismal prison is thrown into the sea or a river,
according to the nature of the locality, in order that even before death
he shall begin to be deprived of the enjoyment of the elements, the
air being denied him while alive, and interment in the earth when dead.
Those who kill persons related to them by kinship or affinity, but whose
murder is not parricide, will suffer the penalties of the lex Cornelia
on assassination.

7 The lex Cornelia on forgery, otherwise called the statute of wills,
inflicts penalties on all who shall write, seal, or read a forged will
or other document, or shall substitute the same for the real original,
or who shall knowingly and feloniously make, engrave, or use a false
seal. If the criminal be a slave, the penalty fixed by the statute is
death, as in the statute relating to assassins and poisoners: if a free
man, deportation.

8 The lex Iulia, relating to public or private violence, deals with
those persons who use force armed or unarmed. For the former,
the penalty fixed by the statute is deportation; for the latter,
confiscation of one third of the offender's property. Ravishment of
virgins, widows, persons professed in religion, or others, and all
assistance in its perpetration, is punished capitally under the
provisions of our constitution, by reference to which full information
on this subject is obtainable.

9 The lex Iulia on embezzlement punishes all who steal money or other
property belonging to the State, or devoted to the maintenance of
religion. Judges who during the term of office embezzle public money are
punishable with death, as also are their aiders and abettors, and any
who receive such money knowing it to have been stolen. Other persons who
violate the provisions of this statute are liable to deportation.

10 A public prosecution may also be brought under the lex Fabia relating
to manstealing, for which a capital penalty is sometimes inflicted under
imperial constitutions, sometimes a lighter punishment.

11 Other statutes which give rise to such prosecutions are the lex Iulia
on bribery, and three others, which are similarly entitled, and which
relate to judicial extortion, to illegal combinations for raising the
price of corn, and to negligence in the charge of public moneys. These
deal with special varieties of crime, and the penalties which they
inflict on those who infringe them in no case amount to death, but are
less severe in character.

12 We have made these remarks on public prosecutions only to enable you
to have the merest acquaintance with them, and as a kind of guide to a
fuller study of the subject, which, with the assistance of Heaven, you
may make by reference to the larger volume of the Digest or Pandects.


THE END OF THE INSTITUTES OF JUSTINIAN