The Institutes of Justinian Part 17

t.i.tLE 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 princ.i.p.al 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 princ.i.p.al together when he, for instance, commissions you to lend money at interest to a person who borrows it for your princ.i.p.al's benefit; or where, on your wishing to sue him as surety for some one else, he commissions you to sue his princ.i.p.al, himself undertaking all risk: or where, at his risk, you stipulate for payment from a person whom he subst.i.tutes 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 t.i.tius's affairs as general agent, or to buy t.i.tius a piece of land, or to go surety for him.

4 It is for the benefit of the princ.i.p.al and a third person when, for instance, some one instructs you to look after affairs common to himself and t.i.tius, or to buy an estate for himself and t.i.tius, 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 t.i.tius; 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 t.i.tius; 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 t.i.tius at all.

7 So too instructions to commit an unlawful or immoral act do not create a legal obligation--as if t.i.tius 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 t.i.tius.

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 t.i.tius 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 Ca.s.sius 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 const.i.tuted can be annulled by revocation before he commences to act upon it.

10 Similarly, the death of either the princ.i.p.al 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 princ.i.p.al 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 t.i.tius, 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 princ.i.p.al to carry out his purpose either personally or by the appointment of another agent. Unless the resignation is made in such time that the princ.i.p.al 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 princ.i.p.al 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.

t.i.tLE 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 princ.i.p.al 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 part.i.tion 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 part.i.tion 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 circ.u.mstances 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 const.i.tution, by which we have a.s.similated 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.

t.i.tLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS

Having thus gone through the cla.s.ses 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 const.i.tution: 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 const.i.tution.

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 t.i.tius, 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 circ.u.mstances he acquires for him only who gave him the order.

t.i.tLE 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 a.s.sent. 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 princ.i.p.al debtor.

1 Acceptilation is another mode of extinguishing an obligation, and is, in its nature, an acknowledgement of a fict.i.tious performance. For instance, if something is due to t.i.tius 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 t.i.tius; 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 t.i.tius 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 const.i.tution, 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 const.i.tution, 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 t.i.tius 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.

t.i.tLE 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.