ENACTMENTS OF JUSTINIAN.
|~ Book XVII ~|
( S. P. Scott, The Civil Law, IV, Cincinnati, 1932 ).
1. Paulus, On the Edict, Book XXXII.
The obligation of mandate is based upon the consent of the contracting parties.
(1) Hence a mandate can be received by means of a messenger, as well as by a letter.
(2) Moreover, an action on mandate will lie where the party either says I ask, or I wish, or I direct, or where he puts it in writing in any other language whatsoever.
(3) The obligation of mandate can also be contracted to become operative at a certain time, and under a certain condition.
(4) A mandate is void unless it is gratuitous, as it derives its origin from duty and friendship, hence compensation is opposed to duty; for, where money is involved, the transaction rather has reference to leasing and hiring.
2. Gaius, Diurnal or Golden Matters, Book II.
The obligation of mandate is contracted between us whether I entrust you only with my business, or whether I charge you only with that of another party, or with his along with mine, or with my business and yours or with yours and that of another. Where I direct you to attend to a matter which concerns you alone, the mandate is superfluous, and no obligation whatever arises from it.
(1) A mandate only has reference to an affair of mine where, for instance, I direct you to transact my business, or to purchase a tract of land for me, or to become my surety.
(2) It only has reference to the affairs of another where, for example, I direct you to transact the business of Titius, or to purchase a tract of land for him, or to become his surety.
(3) It has reference to my affairs and those of another, where, for example, I direct you to transact the business of Titius and myself, or to purchase a tract of land for myself and Titius, or to become surety for him.
(4) It has reference to your affairs and mine where, for instance, I direct you to lend money at interest to someone who is negotiating a loan on my account.
(5) It has reference to your affairs and those of another, where, for instance, I direct you to lend money at interest to Titius, but if I direct you to lend it to him without interest, the obligation of mandate is only contracted in favor of a third party.
(6) The obligation of mandate is only contracted in favor of you, where, for instance, I direct you to rather spend your money for the purchase of land than to lend it at interest; or, on the other hand, to rather lend it at interest than to invest it in land. A charge of this kind is, properly speaking, rather advice than a mandate, and on this account it is not obligatory, for the reason that no one is bound by advice, even though it may not be beneficial to the party to whom it is given; because every one is free to investigate whether the advice will be advantageous to him or not.
3. Paulus, On the Edict, Book XXXII.
Moreover, in the case of mandate, it happens that sometimes the condition of the party giving it may not be improved, and sometimes when it may be improved, but it can never become worse.
(1) In fact, if I directed you to purchase something for me, and did not say anything about the price, and you purchase the article, there will be a right of action on both sides.
(2) If I fixed the price, and you bought the article for more, certain authorities deny that you will be entitled to an action on mandate, even though you are ready to pay the amount of the excess; for it is unjust that I should have an action against you if you were unwilling to make the payment, but that you should have one against me if you are willing to do so.
4. Gaius, Diurnal or Golden Matters, Book II.
Proculus, however, thinks that he can bring an action for the amount of the established price; and this opinion is indeed the more indulgent one.
5. Paulus, On the Edict, Book XXXII.
Therefore, the limits of the mandate must be diligently observed, for a party who exceeds them is held to have done something else than what he was directed to do.
(1) And if he does not execute what he undertook, he will be liable.
(2) Hence, if I direct you to buy the house of Seius for a hundred aurei, and you buy that of Titius for a much larger price, or for a hundred aurei, or even for a smaller sum; you will not be held to have executed the mandate.
(3) Again, if I direct you to sell my land for a hundred aurei, and you sell it for ninety, and I bring an action to recover the land, I will not be barred by an exception, unless you pay me the balance which is lacking on the mandate, and indemnify me for all loss.
(4) Moreover, if a master directs his slave to sell property for a certain amount, and he sells it for less, the master can also bring an action to recover it; nor will he be barred by an exception, unless he is indemnified.
(5) The position of the mandator can be improved, for example, if I direct you to purchase Stichus for ten aurei, and you purchase him for less, or for the same amount and receive some accession to the slave; as, in either instance, you have made the purchase not for more than the price agreed upon, but within that price.
6. Ulpianus, On the Edict, Book XXXI.
If an honor is bestowed by way of remuneration, an action on mandate will lie.
(1) Where anyone has been directed to transact certain business, he can be sued by means of this action, and proceedings on the ground of voluntary agency cannot properly be instituted against him, for he is only bound to the extent that he transacted the business; but in this instance, because he accepted the mandate he will be liable, even if he did not transact the business.
(2) Where I permitted anyone to become my surety, or to intervene in any other way for my benefit, I am liable to an action on mandate. And, unless a party bound himself for another who was unwilling that he should do so, or with the intention of making him a present, or of transacting his business, an action on mandate will lie.
(3) There can be no mandate of a dishonorable transaction, and therefore proceedings cannot be instituted by this action.
(4) If I direct you to attend to something with which I have no concern, as, for instance, to become surety for Seius, or to make a loan to Titius, I will have a right of action on mandate, as Celsus states in the Seventh Book of the Digest, and I will be liable to you.
(5) It is evident that if I direct you to do something in which you are interested the action on mandate will not lie, unless I, also, have an interest in the matter; or, if you would not have transacted the business unless I had directed you to do so, even if I had no interest in it, an action on mandate will, nevertheless, be available.
(6) The question is asked by Julianus in the Thirteenth Book of the Digest, whether, if a principal directs his agent to take a certain sum of money and lend it at interest at his risk, provided he pays the said principal certain interest, and the agent can lend it at a higher rate, he himself will be entitled to the profit; for, as Julianus says, he is held to have received the money as a loan. It is evident, however, that if he was charged with the administration of the entire business he would also be liable to an action on mandate, just as a debtor who transacts the business of his creditor, is ordinarily held liable to an action on mandate.
(7) A certain Marius Paulus became surety for a party named Daphnis, and it was agreed that he should be compensated for doing so. It was also provided that a certain sum of money should be paid to him, under another name, in case of a favorable termination of the suit. He was ordered by Claudius Saturninus, the Praetor, to pay a much greater amount than that above mentioned, and the same Saturninus forbade him to appear in court as an advocate. It seemed to me that he had given security for the payment of the judgment, and that he appeared as the purchaser of the suit, and Marius Paulus seemed to desire that an action on mandate should be brought against Daphnis for the amount for which judgment has been rendered against him. The Divine Brothers, however, most properly stated in a Rescript that, on account of his deceitful conduct, he was not entitled to an action, because he had agreed, for a pecuniary compensation, to assume the responsibility. On the other hand, Marcellus says with reference to the party who had made a promise in consideration of the money that if, in fact, the intention was to bind himself at his own risk, he could not bring an action, but if this was not the intention, a praetorian action could more properly be brought. This opinion seems to conform to the public welfare.
7. Papinianus, Opinions, Book II.
Where an attorney is appointed to conduct a case, and demands a larger fee, it must be considered whether his client desired to remunerate him for his services, and, in this instance, he must comply with what had been agreed upon; or whether the attorney had purchased the right of action with the expectation of realizing a larger sum of money, which is contrary to good morals.
8. Ulpianus, On the Edict, Book XXXI.
If I appoint an attorney, and he does not return to me the documents relating to the case, in what action will he be liable to me? Labeo thinks that he will be liable to an action on mandate, and that the opinion of those who think that on this ground an action on deposit can be brought, is not the correct one; for the origin of every contract and its cause should always be taken into consideration.
(1) But where the adversary of the attorney is released through collusion, the latter will be liable to an action on mandate; but if the attorney is not solvent, then he says that an action on the ground of fraud should be granted against the party who was released through collusion.
(2) It is established that where an attorney does not proceed with a case which he undertook to conduct, he is liable to an action on mandate.
(3) Where one person directs another to transact the business of him who himself had charged him to do so, he will be entitled to an action on mandate, because he himself is also liable; for, although it is commonly stated that one attorney cannot appoint another before issue is joined, still an action on mandate will lie, for he can only do this for the purpose of conducting the case.
(4) Where certain guardians directed their fellow-guardian to purchase a slave for their ward, and he does not do so, will an action on mandate be available? And will one on mandate only lie, or can one also be brought on guardianship? Julianus makes a distinction here, as he says that the kind of slave which the guardians directed one of their number to purchase should be taken into consideration, for if the slave was superfluous, or even burdensome, the guardian will be liable only to an action on mandate, and not to one on guardianship. Where, however, the slave was necessary, he will then be liable to an action on guardianship, and not only himself but the others as well; for if they did not direct him to make the purchase, they will be liable to an action on guardianship, for the reason that they did not purchase a slave who was necessary for their ward; they are therefore not released for having commissioned their fellow guardian, because they should have made the purchase themselves. It is evident that they will, nevertheless, be entitled to an action on mandate, because the mandate was not complied with. Julianus also says that, on the other hand, a guardian who makes a purchase, will be entitled to an action on mandate against his fellow-guardians.
(5) Where a man who is free and is serving as a slave in good faith, directs Titius to buy him, and gives him money from his peculium for that purpose, which peculium should follow him, and ought to be left in the hands of a bona fide purchaser; and Titius, after the price was paid, manumitted the freeman who subsequently was judicially declared to have been born free; Julianus says he will be entitled to an action on mandate against the party whom he directed to buy him; but that all he can gain in this action on mandate will be to compel the party to transfer to him the rights of action which he possesses against him from whom he purchased the slave. It is evident that, if he gave him money derived from the peculium belonging to a bona fide purchaser, he cannot transfer any rights of action to him (so Julianus says), because he has none, since the purchaser gave him his money; and he says further that he is bound on account of the sale, and this action is of no effect, for the reason that whatever he recovered he would have to make good in an action on sale.
(6) The action on mandate will then lie when the interest of the person who gave it begins to exist, but if he has no interest, the action will be inoperative, for it will lie only to the extent of his interest; as, for instance, where I directed you to purchase a tract of land for me, since, if I had an interest in making the purchase, you will be liable, but if I myself purchased the same land or another party did so for me, as I have no interest, the action on mandate will not be available. I ordered you to transact my business, but even though no one transacted it, if no loss resulted, an action will not lie, but if someone else transacted the business properly, the action on mandate will not be available. This same rule is applicable in similar cases.
(7) Where sureties, who were not aware that their debtor had made payment, or had been released by means of a receipt, or under an agreement, have again paid the claim due from the debtor, they will not be liable to an action on mandate.
(8) This also applies to the action to which the surety is entitled, which can be ascertained from a Rescript of the Divine Brothers, addressed to Catullus Julianus as follows: "If the parties who have become your sureties have judgment rendered against them for a larger amount than the debt claimed; and if they, being intelligent and informed of the facts, neglected to take an appeal, you can protect your-self by having recourse to the equity of the court, if they bring an action on mandate." Therefore, if they were ignorant of the facts, their ignorance is excusable, but if they were aware of them, it was incumbent upon them to take an appeal, and they were guilty of bad faith in not doing so. But what if they were prevented by poverty? Their indigence should then be their excuse, but if they had made an agreement with the principal debtor, in the presence of witnesses, that he should take an appeal if he thought it was advisable, I am of the opinion that they have acted properly.
(9) He is held to have acted in bad faith who does not return what he has the power to restore.
(10) Hence, if I directed you to purchase a slave, and you did so, you will be liable for his delivery. But if you fraudulently neglected to purchase him, (or, perhaps, having received money for that purpose, you gave it to another that he might make the purchase) or if you were guilty of gross neglect (for instance, if induced by favor, you should permit another to purchase him) you will be liable. If, however, the slave whom you purchased should run away, you will be responsible, if this occurred through your bad faith. But if neither bad faith or negligence existed, you will not be liable except to the extent that you must furnish security to deliver up the slave if he should come into your power. But if you should deliver him up, you must give me possession of him; and if security is furnished against his recovery by eviction, or you have a right to ask that security should be furnished to you, I think that it will be sufficient if you assign this right of action to me, so that you may appoint me your agent to act in my own affairs, and you will not be obliged to make good any more than you actually will obtain.
9. Paulus, On the Edict, Book XXXII.
You should also furnish security with reference to your acts.
10. Ulpianus, On the Edict, Book XXXI.
The same rule also applies to real-property, where the agent purchases a tract of land; for the party who appointed him is not responsible for anything more than good faith.
(1) Where, however, security is given to the agent with reference to the health of a slave, or such security can be given, or where it is done with reference to other defects, the same rule will apply; or the party will have judgment rendered against him, if, through negligence, he does not provide for security.
(2) Where crops are gathered from land which my agent has purchased for me, it is the duty of the judge to compel these also to be made good.
(3) Where my agent has money belonging to me in his hands, he will owe me interest from the date of his default in paying it. Where, however, he has lent money on interest, and has collected the interest, we hold, in consequence, that he is obliged to make good any profit which he has obtained from it; whether I directed him to lend said money or not, because it is required by good faith that he should not profit by the property of another. If, however, he did not make use of the money, but appropriated it for his own use, he can be sued for the interest at the legal rate customary in that district. Finally, Papinianus says that, even if the agent should collect interest and appropriate it for his own use, he must make it good.
(4) If anyone should direct Titius to borrow money from those who employ him, an action on mandate cannot be brought against him, (as Papinianus states in the Third Book of Opinions) because he is liable on account of the loan, and therefore he cannot be sued for interest as it were on the ground of mandate, if this was not expressly set forth in the stipulation.
(5) Papinianus also says in the same Book that, where a surety who assumed responsibility because his principal directed him as his agent to borrow the money, has judgment rendered against him; an equitable action in the nature of an institorian proceeding should be granted, because he may be held, as it were, to have appointed him for the purpose of making the loan.
(6) Where I direct anyone to stipulate for a sum from Titius, I can bring an action on mandate against the party whom I directed to do this, in order to compel him to release him, if I desire to do so; or, if I prefer, I can bring an action to compel him to make a substitution to me, or to anyone else that I may wish. Papinianus states in the same Book that, if a mother gives a dowry in behalf of her daughter, and then, under the direction of her daughter, makes a stipulation at that time, or even afterwards; she will be liable to an action on mandate, although she herself is the one who gave the dowry.
(7) Where anyone asserts that the business which he has directed his agent and his slave to transact will only be ratified if Sempronius is present when this is done, and a bad debt should be contracted, Sempronius, who was not guilty of fraud, will not be liable; and it is true that he who attends to the affairs of another without the intention of acting as an agent, but solely through motives of affection and friendship, for the purpose of advising agents and stewards and directing them by his counsel, is not liable to an action on mandate; but if he should be guilty of bad faith, he will be liable, not to an action of mandate, but to one on the ground of fraud.
(8) If I direct my agent to lend my money to Titius without interest, and he does not lend it to him without interest, let us examine whether he should refund the interest to me? Labeo states that he should refund it, even though I directed him to lend the money without interest; although if he lent the money at his own risk, Labeo says that an action to recover the interest will not lie.
(9) Labeo also says, and it is correct, that this action also permits reimbursement, and as a party who acts as agent is required to deliver the crops, he can also deduct any expense which he may have incurred in gathering them; but if he expended anything for transportation while he was going over the land, I think that such expense should also be made good to him, unless he was employed on a salary, and it was agreed that he shall pay his own expenses on journeys of this kind, that is to say, he should pay them out of his salary.
(10) He also says that if an agent incurs any expense for the sake of pleasure, outside his mandate, his principal should permit him to remove the object for which it was incurred, if this can be done without injury to him, unless the principal wishes him to be accountable for said expense.
(11) Sureties and mandataries are entitled to an action on mandate, even though they have made payment without the institution of judicial proceedings.
(12) Julianus says that, generally speaking, if a surety has neglected to interpose an exception which was a personal one, and of which the principal debtor could not avail himself, he will still be entitled to an action on mandate; if, indeed, the exception could not have been honorably employed. If he did this knowingly in a case in which the principal debtor could have made use of the proceeding, he will not be entitled to an action on mandate, provided that he had the power of settling the matter, and of asking the party whether he preferred to undertake the defence of the case in his own behalf, or by means of an attorney.
(13) Where a receipt is given by a creditor to a surety by way of gift, I think that if the creditor desired to remunerate the surety, the latter would be entitled to an action on mandate; and much more would this be the case if the creditor gave him the receipt on account of death, or bequeathed him a release.
11. Pomponius, On Plautius, Book III.
If I should subsequently become the heir of a party in whose favor judgment has been rendered against me on account of security, I will be entitled to an action on mandate.
12. Ulpianus, On the Edict, Book XXXI.
If, however, not for the sake of remuneration, but mainly as a gift, a creditor dismisses the suit against a surety, the latter will not be entitled to an action against the debtor.
(1) Marcellus, however, holds that where anyone, with the intention of making a gift to a surety, pays a creditor in his behalf, the surety will be entitled to an action on mandate.
(2) It is evident, he says, that where a son under paternal control or a slave is the surety, and I make payment for him, I give him a present; and neither the father nor the master can bring an action on mandate. This is the case because the party who made the payment did not intend to make a donation to the father.
(3) It is clear that if a servant, who is a surety, should pay the creditor, his master will be entitled to an action on mandate.
(4) Marcellus also says, in the same place, that where a son under paternal control became security without the authority of his father, an action on mandate will not lie, if there is nothing in the peculium; but if he became security by the order of his father, or payment was made out of the peculium, there is still more reason that his father should be entitled to an action on mandate.
(5) If I directed a son under paternal control to make payment for me, Neratius says that his father would be entitled to an action on mandate, whether he himself made payment, or his son did so out of the peculium, and this is reasonable, for it makes no difference to me who pays my debts.
(6) If I direct a son under paternal control to make payment for me, and he does so after being emancipated, it is true that an action in factum should be granted to the son, but the father will be entitled to an action on the ground of voluntary agency, if he pays after the emancipation of his son.
(7) They proceed by the counter action who have accepted the mandate; as, for instance, those who have undertaken the agency of matters in general, or of a single transaction.
(8) Hence Papinianus asks whether a patron who has bought a tract of land and paid two thirds of the purchase-money, and ordered the said land to be delivered to his freedman, so that he may pay the remainder, and, after this has been done, and the freedman has consented that the land shall be sold by the patron, can the freedman recover the third of the purchase-money? He says if the freedman accepted the mandate in the beginning, he did not receive a gift, and he can recover the third of the purchase-money by means of the counter action after having deducted the profits which he had collected in the meantime; but if the patron bestowed this as a gift upon his freedman, the latter will be held to have afterwards donated it to his patron.
(9) If you have directed me to purchase something for you, and I purchase it with my own money, I will be entitled to an action against you to recover the price of the same; but if I pay for it with your money, and there is still some bona fide balance due for the purchase of the article, or if you refuse to receive it after it has been bought, the contrary action on mandate will lie. The case will be similar if you direct me to do anything else, and I incur expense for that purpose; for I can not only recover the amount which I have disbursed but also interest on the same. The interest, moreover, should not only begin to run from the time of the default, but the judge should also make an estimate of the expense, if a party demands payment from his debtor and the latter pays, where he obtains a very high rate of interest (for it is perfectly just that reason should be considered in matters of this kind), or where the debtor himself has borrowed money at a high rate of interest and pays it. If, however, the agent did not release the principal debtor from the payment of interest, but the interest itself is lost; or if he released him from a low rate of interest, and, in order to execute his trust, received a higher rate; I have no doubt that he can recover the interest by an action on mandate, and, (as has already been determined) a judge should decide all this in accordance with the principles of equity and good faith.
(10) I gave you money in order that you might pay my creditor, you did not do so, and you will owe me interest; in this instance, my creditor can recover the money due from me with interest, as was stated by the Emperor Severus in a Rescript directed to Hadrianus Demonstratus.
(11) If a dissolute young man directs you to become security for a harlot, and you, having knowledge of her character, undertake to carry out the mandate, you will not be entitled to an action on mandate; because the case is similar to the one where you lend money to a party being well aware that he will lose it. But if he still further directly charges you to lend money to a harlot, you will not be bound by the mandate, as it was given contrary to good faith.
(12) Where a certain man wrote a letter to his friend as follows: "I ask you to consider Sextilius Crescens, my friend, as recommended to you," he will not be liable to the action of mandate, because the letter was written rather for the purpose of recommending the man than on account of the mandate.
(13) Where one party directs another to lend money to a son under paternal control, the latter should not be considered as borrowing it in violation of the Decree of the Senate; but, for the reason that the father will be liable either to an action on the peculium, or for money expended for his own benefit, or on the ground of an act performed by his order, the mandate will be valid. I further say, that if I should be in doubt as to whether he was accepting the loan in opposition to the Decree of the Senate, or not, and I refuse to lend him the money in violation of the Decree of the Senate, and someone should then appear who alleges that this is not the case, and he also says to the creditor, "Make the loan at my risk, you will make a good loan." I think that there is ground for a mandate, and that the party will be liable to the action.
(14) If I direct the creditor to make a loan after the money has already been lent; Papinianus says, very properly, that there is no mandate. It is evident that if I direct you to grant a delay to the debtor, in order that you may wait and not urge him to payment, and I state that the money will be at my risk; I think it is true that the entire risk of the claim should attach to the party giving the mandate.
(15) He also says that if a guardian directs that an obligation which he has incurred shall be accepted or approved, he will be liable to an action of mandate, that is, to one who has been his ward, or to his curator.
(16) If I direct money to be collected, and then change my mind, can an action on mandate be brought against me or against my heir? Marcellus says that the action on mandate will not lie, because the mandate is extinguished by the change of mind. If, however, you direct the money to be collected, and then forbid this to be done, and it is, nevertheless, collected; the debtor will be released.
(17) Marcellus also says that if anyone directs a monument to be erected to himself after his death, his heir can proceed in an action on mandate. But if the party who received the mandate erected the monument with his own money, I think that he can bring an action on mandate, even if he was not charged to erect the monument with his own money; for the action will also lie in his favor against him who directed him to employ his own money in constructing the monument, and especially is this the case if he had already made preparations for that purpose.
13. Gaius, On the Provincial Edict, Book X.
The rule is the same if I have directed you to purchase a tract of land from my heirs after my death.
14. Ulpianus, On the Edict, Book XXXI.
There is no doubt that the heir of a surety is entitled to an action on mandate, if he has made payment. If, however, he has sold the estate, and the purchaser has made payment, the question arises, will he be entitled to an action on mandate? Julianus says, in the Thirteenth Book, that the heir can bring such an action, because he is liable to be sued on the ground of purchase, to compel him to assign his rights of action, and therefore an action on purchase will lie, since he has the power to do so.
(1) Where a surety leaves two heirs, and one of them purchases the estate from his co-heir, and then pays to the stipulator all that the deceased became surety for, he can hold his co-heir liable either on the stipulation, or on the purchase. He will therefore be entitled to an action of mandate.
15. Paulus, On Sabinus, Book II.
If I direct you to purchase a tract of land, and afterwards write to you not to do so, and you have made the purchase before you learned that I had countermanded it; I will be liable to you in an action on mandate, because he who undertook to execute the mandate should not suffer loss.
16. Ulpianus, On the Edict, Book XXXI.
If anyone should direct me to incur some expense on my own property, and I do so, the question arises whether an action on mandate will lie. Celsus says, in the Seventh Book of the Digest, that he gave the following opinion, when Aurelius Quietus is said to have directed a physician with whom he lodged, to build, at his own expense, a tennis-court, a hot bath, and other buildings for his health in the gardens which he had at Ravenna, to which he was accustomed to repair every year. Celsus therefore held, that, after having deducted whatever had a tendency to render his buildings more valuable, an action on mandate could be brought against him to recover the balance.
17. Paulus, On Sabinus, Book VII.
If I direct you to collect ten aurei from Titius, and before they are collected, I bring an action on mandate against you, and you collect • the amount before the case is decided; it is established that judgment should be rendered against you.
18. Ulpianus, On Sabinus, Book XL.
Where anyone allows himself to be directed by another to lend him money, he is understood to have received a mandate.
19. The Same, On Sabinus, Book XLIII.
If my slave directs someone to purchase him in order that he may be ransomed; Pomponius very aptly discusses the question whether he who has ransomed the slave voluntarily, can bring an action against the vendor to compel him to take him back; since the action of mandate is a reciprocal one. Pomponius says, however, that it is most unjust to compel me to take back a slave on account of the act of said slave, whom I wish to dispose of permanently; nor should I be liable to an action of mandate in this instance, any more than if I had sold him to you.
20. Paulus, On Sabinus, Book XI.
He who has undertaken to carry out a mandate cannot profit to any extent on account of it; just as he ought not to suffer any loss if he could not collect money lent at interest.
(1) An action on the ground of business transacted may be brought by a surety if he bound himself for a party who was absent, for an action on mandate will not lie when the mandate did not precede it.
21. Ulpianus, On Sabinus, Book XLVII.
If I become surety for you by the direction of another, I cannot bring an action on mandate against you, just as happens when someone makes a promise having in view the mandate of another. But if I do this with reference, not to the mandate of one person but to that of two, I will also be entitled to an action of mandate against you, just as, if two parties had directed me to lend you money, I would be entitled to an action against both.
22. Paulus, On the Edict, Book XXXII.
If I direct you to become surety for me for a certain time, and you do so absolutely, and make payment; the proper answer will be that you will not be entitled to an action on mandate until the time has expired.
(1) It has also been discussed whether, if you become security by my direction for a certain time, for a sum which I owed during that time, and you pay it before the period has elapsed, will you at once be entitled to an action on mandate? Certain authorities think that the right of action is immediately acquired, but for less than the amount of my interest in having payment made on the day when it was due. It is better, however, to say that, in the meantime, the action on mandate for this sum cannot be brought, when it is not convenient for me to pay it before the appointed time.
(2) It happens, sometimes, that if I transact my own business I will also be entitled to a praetorian action on mandate; for instance, where my debtor substitutes one of his own in my favor at his own risk, or where I institute proceedings against the principal debtor at the request of the surety; for although I am collecting my own debt, still, I am transacting his business, and therefore what I fail to collect I can recover by an action on mandate.
(3) Where persons, whose property has been given in pledge and sold, introduce fraudulent purchasers, and direct them to buy the property, the mandate is understood to have been given, although a mandate does not exist under circumstances of this kind; because, when you buy your own property, such a purchase is null and void.
(4) Julianus said that the obligation of mandate also has reference to the property of him who undertook its performance, and, on this account, should by all means, be proved; because if I direct one of several heirs, who are making a sale, to purchase for me the property of the estate, the said heir will be liable to an action on mandate for the share of the estate to which he is entitled, and the obligation will be reciprocal; for, in fact, if he, on this account, (that is, because he has undertaken the performance of the mandate) will not surrender the property to another bidder, good faith requires that he should pay him the price for which it could be sold. On the other hand, if the purchaser was not present at the sale for the purpose of buying property which he needed, as he had instructed the heir to purchase it for him; it will be perfectly just that he should have an action on mandate to indemnify himself for the interest he had in having the property purchased.
(5) A person whose property has been confiscated can direct anyone to purchase it, and if he should do so, an equitable action on mandate will lie, if he does not keep faith. This rule has been established because, where property has been confiscated and anything is afterwards acquired, it does not go to the Treasury.
(6) Where anyone has undertaken to carry out a mandate directing him to rob a temple, or wound or kill a man, he cannot recover anything in an action on mandate, on account of the infamous nature of the mandate.
(7) If I give you a hundred aurei in order that you may give them to Titius, and you do not do so, but use them yourself; Proculus says that you will be liable both to an action on mandate, and to one of theft; but if I should give them to you in such a way that you can turn them over to anyone you please, only an action on mandate will lie.
(8) If I direct your slave to pay, on my account, a sum of money which I owe you; Neratius says that, although the slave may have borrowed the money and entered the payment on your books as having been received from me, still, if he did not receive it from the creditor to be placed to my credit, I will not be released, and you cannot bring an action on mandate against me; but if he borrowed it with the understanding that he was to pay it on my account, on the other hand both these circumstances will take place; for it makes no difference whether some other slave, or the same one, received the money to be paid on my account in your name, and this is the more correct, since whenever the creditor receives his own money, the release of the debtor does not occur.
(9) A fugitive slave of mine, while in the hands of a thief, obtained some money and purchased other slaves with it, whom Titius received by delivery from the vendor. Mela says that I can cause Titius to make restitution to me by an action on mandate, because my slave is held to have directed Titius to receive the slaves by delivery, provided that he did so at the request of the slave. But if the vendor made the delivery to Titius without his consent, I can then bring an action on purchase to compel the vendor to deliver the slaves to me, and the vendor will have a personal action for recovery against Titius for the delivery of slaves which he did not owe him, although he believed that he did.
(10) Where the curator of property makes a sale, but does not pay the proceeds of the same to the creditors, Trebatius, Ofilius, and Labeo are of the opinion that an action on mandate will lie against him in favor of those creditors who appear, and that an action on the ground of business transacted can be brought by those creditors who are absent; but if, having executed the mandate of those who are present, he proceeds with the sale, an action on the ground of business transacted cannot be brought by the absent creditors, unless perhaps against those who directed the curator to sell the property, just as if they had transacted the business of the former. But if they directed him to do this, believing that they were the only creditors, an action in factum should be granted in favor of the absent creditors against those who gave the mandate.
(11) However, just as one is free not to accept a mandate, so if it is accepted it must be executed, unless it is revoked. Moreover, it can be revoked in such a way that the right will be reserved unimpaired to the party giving the mandate to conveniently dispose of the matter, either by himself or by someone else; or where he who undertook the performance of the mandate might be taken advantage of. And if the party to whom the mandate was given to purchase something does not do so, and does not state that he will not purchase it, he will be responsible for his own negligence, and not for that of another; and it is settled that he will be liable to an action on mandate. He will still further be liable (as Mela also has said) if he should fraudulently revoke the mandate at a time when he could not properly make the purchase.
23. Hermogenianus, Epitomes of Law, Book II.
If, however, the mandatary alleges as an excuse for not complying with the mandate the existence of illness, or the deadly enmity of his adversary.
24. Paulus, Sentences, Book II.
Or that the actions brought against the debtor will be of no force or effect.
25. Hermogenianus, Epitomes of Law, Book II.
Or any other just cause, he should be heard.
26. Paulus, On the Edict, Book XXXII.
The death of the person giving the mandate is included among the causes for negligence to comply with it, for a mandate terminates with death. If, however, it is executed by a party ignorant of this fact, it is held that the action will lie for the sake of convenience. Julianus also stated that a mandate was terminated by the death of the party who gave it, but that the obligation arising therefrom sometimes continued to exist.
(1) Where a party directed his debtor to pay Titius for him, and the debtor paid the money after the death of Titius; although he was ignorant of the fact, he must be released.
(2) Money is understood to have been lost by a surety, where a debtor has been substituted by him for the benefit of the creditor, even though he was not solvent; because the creditor who accepts a debtor who has been substituted, makes the security good.
(3) Where a party who wishes to make a present to a surety discharges his creditor, who is his own debtor, the surety can immediately bring suit on mandate, as it makes no difference whether he paid the money to the creditor or released the latter from his obligation.
(4) It should also be borne in mind that a surety cannot recover more in an action on mandate than he has paid.
(5) I became your surety for the amount of ten aurei, by your direction, and I paid the agent of the creditor. If the latter was the true agent, I am immediately entitled to an action on mandate, but if he was not, I can bring an action for recovery against him.
(6) A mandator cannot make a charge of all the expenses which he may have incurred; as, for instance, where, because he has been robbed by thieves, or has lost property by a shipwreck, or he, or the members of his family, have been attacked by disease, he has been compelled to incur expense; for these things should be rather attributed to accident than to mandate.
(7) Where, however, a slave steals from you what you had purchased by my direction, Neratius says that you can bring an action on mandate to compel the slave to be surrendered to you by way of reparation, if this happened without your fault; but if I knew that the slave was dishonest, and did not warn you, so that you could provide against it, I must then make good to you the amount of your interest.
(8) A workman, by the direction of a friend, bought a slave for ten aurei, and taught him his trade; he then sold him for twenty aurei, which he was compelled to pay by an action on mandate. Afterwards, he had judgment rendered against him in favor of the purchaser, on the ground that the slave was not sound. Mela says that the mandator will not be obliged to make good to him what he paid, unless, after he made the purchase, the slave became unsound without bad faith on his part. If, however, he had given him instructions by order of the mandator, the contrary would be the case, for then he could recover what he had expended, as well as what had been paid for the maintenance of the slave, unless he had been asked to instruct him gratuitously.
27. Gaius, On the Provincial Edict, Book IX.
If anyone should write to another to release his debtor, and that he himself will pay him the money which he owes him, he will be liable to an action on mandate.
(1) If I have delivered to you a slave with the understanding that you will manumit him after my death, the obligation will be established. Moreover, I will, myself, be entitled to an action against you, if, having changed my mind, I should wish to recover the slave.
(2) Where a party has undertaken the performance of a mandate, and can execute it, he should not fail to do what he has promised, otherwise, judgment will be rendered against him for the amount of the interest of the mandator. If, however, he is aware that he cannot perform the service, he should notify the mandator of that fact, as soon as he can, that the former may employ some one else if he should desire to do so. If he failed to notify him when he could have done so, he will be liable for the amount of interest of the mandator, but if, for some reason he was unable to notify him, he will be secure.
(3) A mandate is terminated by the death of the party to whom it was given, if he died without having, in any way, complied with it; and his heir, even though he may have executed the mandate, will not be entitled to an action on mandate on this account.
(4) The expenses incurred through the performance of the mandate, if they were incurred in good faith, should by all means be paid; and it makes no difference if he who gave the mandate would have paid less if he had been transacting the business himself.
(5) If you make a loan to Titius by my direction, and bring an action of mandate against me, I should not have judgment rendered against me, unless you assign to me the rights of action which you have against Titius. But if you should sue Titius, I myself will not be released, but I shall be liable to you only to the extent that you have not been able to recover from Titius.
28. Ulpianus, On the Edict, Book XIV.
Papinianus says, in the Third Book of Questions, that the mandator of a debtor who pays does not release the principal debtor by operation of law; for he pays on account of his own mandate in his own behalf, and therefore he thinks that the rights of action against the principal debtor should be assigned to the mandator.
29. The Same, Disputations, Book VII.
Where suit has been brought against a surety, and he, not being aware that the money has not been actually delivered to the debtor, makes payment on account of his suretyship; the question arises whether he can recover the amount that he has paid in an action on mandate? And if, indeed, being aware of the facts, he neglects to file an exception on the ground of fraud, or because the money was not paid, he will be held to have participated in the fraud, for gross negligence very nearly resembles fraud. Where, however, he was ignorant of the facts, no responsibility can attach to him. On the same principle, if a debtor is entitled to an exception, for instance, on the ground of an agreement, or for some other reason, and he, not knowing this, does not avail himself of this exception; it must be said that he will be entitled to an action on mandate, for the principal debtor could have warned his surety, and ought to have done so, in order to prevent him from ignorantly paying what was not due.
(1) It is a point susceptible of discussion, where a surety, not being aware that he has bound himself illegally, makes payment, whether he will have an action on mandate? If, indeed, he was ignorant of the facts, his ignorance will be an excuse, but if he was ignorant of the law the contrary opinion must be held.
(2) If the surety, not being aware that the debtor has paid, makes payment himself, I think that he will be entitled to an action of mandate; for he should be excused if he had not divined that the debtor has paid, for the latter should notify his surety as soon as he has paid, to prevent the creditor from overreaching him, and, by taking advantage of his ignorance, obtain from him the amount for which he became surety.
(3) This also should be discussed with reference to the surety, namely: if when he paid he did not notify the principal debtor, and the latter then satisfied the obligation, which he should not have done. I think that when he could have notified him, and did not do so, if the surety brings suit on mandate he should be barred; for if he did not notify the debtor after he made payment, he is guilty of an act resembling fraud. Moreover, the principal debtor should assign his right of action to the surety, to prevent the creditor from receiving double payment.
(4) Even though the surety should fail to perform certain acts, he is not guilty of fraud; as, for example, where he neglects to avail himself of an exception based on agency, whether he knew, or was ignorant of his right. For, in this instance, good faith is concerned, and it is not agreeable to it, to quibble concerning nice distinctions of the law, but only to ascertain whether the party is a debtor or not.
(5) In all the examples above mentioned, where the creditor has received money which was not actually lent to the debtor, or has been paid a second time, an action for recovery will lie against him, unless the money was paid to him on a judgment; for, in this instance, an action for recovery will not lie on account of the authority of the judgment, but he himself, because of his duplicity, should be punished for the crime of swindling.
(6) If a surety who is released by lapse of time, nevertheless, pays the creditor, he will legally be entitled to an action against the principal debtor; for, although he has already been released by keeping faith, he has released the debtor. Therefore, if he is ready to defend the principal debtor against his creditor, it is perfectly just that he should recover what he paid by an action on mandate. And this opinion was also held by Julianus.
30. Julianus, Digest, Book XIII.
If I give you a slave with the understanding that you will manumit him, and afterwards my agent should forbid you to manumit him, can I bring an action on mandate, if you grant him his freedom?
(1) I answered that, if the agent had good reason for preventing the manumission of the slave whom I had received for the sole purpose of manumitting him; for instance, if he should have subsequently ascertained that he had forged accounts, or that he had plotted against the life of his former master, I will be liable, if I do not pay attention to the notice of the agent. But, if the notice was given by the agent without any good reason, but merely in order to prevent the manumission of the slave, an action cannot be brought against me, even though I should give him his freedom.
31. The Same, Digest, Book XIV.
If I commit the transaction of my business to a party who is liable to me in an action for quadruple damages (within a year), and, after the lapse of the year, for only simple damages; even though I should begin suit against him on mandate after the year has elapsed, he will be bound to pay me quadruple damages; because a party who undertakes the management of another's business is required to pay him what he would have been compelled to pay others.
32. The Same, On Urseius Ferox, Book III.
If I should be unwilling to enter upon an estate unless security is furnished me that I will be indemnified for any loss, and, under such circumstances, a mandate is given; I think that an action on mandate will lie. If, however, a party has directed another not to reject a legacy, the case is very different; for where a legacy is acquired, it cannot cause any loss to the person receiving it, but the acceptance of an estate is sometimes injurious. In a word, whenever such contracts are made, and every time a surety is bound in behalf of the parties, I think that the obligation of mandate is established; for it does not make much difference who the individual is, who, after being interrogated, became surety, or whether one who is absent directs this to be done. Moreover, it is proper to notice that it is a matter of common occurrence for estates thought to be insolvent, to be entered upon by the direction of creditors; and there is no doubt that this creates liability to an action on mandate.
33. The Same, On Minicius, Book IV.
Where a party is asked to become a surety, and obligates himself for a smaller sum, he is legally liable; but if he becomes bound for a larger sum, Julianus very properly thinks — and this is also the opinion of many authorities — that he will not be liable to an action on mandate for a larger amount than he was asked to become surety for, but only for the sum contained in the request; because he did what he was directed to do; since it is held that the party who requested him relied upon his good faith to the extent to which he was asked to be responsible.
34. Africanus, Questions, Book VIII.
A man was in the habit of transacting the business of Lucius Titius, as his agent, and, after he had collected money from the debtors of the former, he sent him a letter in which he stated that a certain sum derived from his management of his business remained in his hands, and that he himself had borrowed the same, and was indebted for it with interest at six per cent. The question arose whether an action could be brought for this money, as lent, under these circumstances, and whether interest could be collected? The answer was that the money was not lent, otherwise it could be alleged that money would be considered loaned in every contract where there was no consideration. This case is not similar to the one where an agreement is made that you shall have, as a loan, money which has been deposited with you, and it is lent, because then the money which was mine becomes yours. Moreover, if I order you to borrow money from my debtor, it becomes a loan, for this is the indulgent interpretation; and the proof of this is that where a party who wishes to loan money to another gives him silver to be sold, he cannot legally bring an action for money loaned, and nevertheless, the money obtained for the silver will be at the risk of the party who received the silver. In the case stated, it must therefore be held that the agent will be liable to an action on mandate, so that, although the money was at his risk, he must still pay the interest which was agreed upon.
(1) I directed you, being heir to a share of an estate, to purchase for me a tract of land belonging to said estate at a specified price, and you did so. There is no doubt that an action on mandate will lie between us with reference to the shares of the other co-heirs. So far as your share is concerned, however, a doubt may arise whether an action on purchase or on mandate should be brought, for it is not unreasonable to believe that the purchase was made conditionally with regard to this share; because, in fact, the question is very important whether, if I should die before the bargain was concluded, and you, being aware of my death, refused to sell to another on account of my mandate, my heir would be liable to you on this account? And, on the other hand, if you should sell to another party, would you be liable to my heir? For if the purchase should be held to have been made under a condition, proceedings can be instituted in the same way as where any other condition had been complied with after death. If, however, proceedings had been begun under mandate, for example, if I had directed land belonging to someone else to be purchased, and death had taken place, as you were aware of this fact, and the mandate having been terminated, no action in your favor could be brought against my heir; but if action had been taken under the mandate, the course of procedure would be the same as in a case of purchase.
35. Neratius, Parchments, Book V.
If I directed you to purchase for me a tract of land in which you have a share, it is true that, in compliance with this mandate, you are also required to deliver me your share, after the remaining shares have been purchased. If, however, I should direct you to purchase the said shares at a certain price, and you have bought some of them at any price whatsoever, your share of the proceeds will be subject to diminution, so that the total amount will not exceed that for which I directed the property to be purchased. But if I directed you to make the purchase without fixing any price, and you buy the shares of the other parties at different prices, you should also sell your shares for a sum which would be approved by the judgment of a good citizen.
36. Javolenus, On Cassius, Book VII.
A person of this kind should bring all the amounts, large and small, together, and in that way ascertain the share to be paid by the party who received the mandate. Many authorities adopt this rule.
(1) In like manner, in the following instance, where I directed you to purchase something for me at a certain price, and you transacted the business profitably with reference to the other joint-owners, and made the purchase at a low figure, you will have for your share the amount of your interest, provided it is within the sum contained in the mandate; but what if the parties who held the land in common with you were compelled to dispose of it at a low price, either on account of the bad condition of their affairs, or for some other reason? You should not make the same sacrifice, nor should you profit by this circumstance, as a mandate ought to be gratuitous, nor should you be permitted, on this account, to prevent the sale, because you knew that the purchaser was more anxious to obtain the property than he was at the time he directed you to purchase it.
(2) If I should direct you to purchase for me a tract of land, which is sold by certain parties, in such a way, however, that I shall not be bound by the mandate unless you purchase the entire tract, and you are unable to purchase it all; you will be transacting your own business with reference to the shares you have bought, whether you have an interest in the land or not. The result will also be that he to whom a mandate of this kind has been given, will, in the meantime, purchase the different shares at his own risk, and, unless he buys them all, they will remain in his hands, even though he does not want them. It is more probable that, since a party can undertake the execution of a mandate attended with such inconveniences, and has done so voluntarily, he should discharge his duty by purchasing the different shares, just as he ought to do in purchasing all of them together.
(3) If I direct you to purchase a tract of land for me, and do not add that I shall not be liable under the mandate unless you buy it all, and you purchase one, or several portions of the same; we will then undoubtedly be entitled to actions on mandate against one another reciprocally, even though you could not purchase the remaining portions of the land.
37. Africanus, Questions, Book VIII.
I became surety for you that a certain slave should be delivered, and I complied with the agreement. When I bring an action of mandate against you, reference should be had to the time when I made payment, and not to that when the action was brought; and therefore, even though the slave should afterwards die, an equitable action will, nevertheless, lie.
(1) The rule is different in the case of a stipulation, for then the time when the action was brought is considered, unless it should happen that the promisor is responsible for not having made payment at the proper time, or the creditor neglected to receive it, for the failure of neither of the parties should benefit him.
38. Marcellus, Opinions.
Lucius Titius permitted Publius Maevius, his son, to mortgage a house held in common to his son's creditor, but not with the intention of making him a present of the same; and afterwards Maevius, having died leaving a minor daughter, the guardians of the latter joined issue against Titius, as Titius did in proceedings instituted to collect a loan. I ask whether the part of the house which Titius permitted his son to encumber should be released by a decision of court? Marcellus was of the opinion that the judge should determine whether it should be released, by taking into consideration the character of the debtor and the intention of the contracting parties, as well as the time when the property in dispute was hypothecated, for, the disposal of a legal question of this kind depends upon a judicial decision.
(1) There is a point which is not dissimilar, and which very frequently arises, that is, whether a surety can institute proceedings to obtain his release before he has made payment. One should not always wait until he makes payment, or until judgment is rendered against him after issue has been joined; as, if the principal debtor has delayed payment for a long time, or wasted his property, and especially if the surety has not the money in his hands ready to be paid to the creditor, he may then proceed against the debtor by an action of mandate.
39. Neratius, Parchments, Book VII.
It was held by both Aristo and Celsus, the father, that property could be deposited, and the performance of a mandate assumed, under the following condition, namely: "That the property should be at the risk of the party who received the deposit, or undertook the performance of the mandate." This appears to me to be correct.
40. Paulus, On the Edict, Book IX.
If I should become surety for you in your presence, and in spite of you, neither an action on mandate, nor one on the ground of business transacted will lie. Some authorities hold that an equitable action should be granted, but I do not agree with them, and think that the opinion held by Pomponius is correct.
41. Gaius, On the Provincial Edict, Book III.
An action on mandate can sometimes only be granted on one side; for if the party who undertook to perform the mandate exceeds its limitations, he will not be entitled to an action on mandate, and the one who gave him the mandate will be entitled to an action against him.
42. Ulpianus, On the Edict, Book XI.
If I direct you to investigate the circumstances of an estate, and you purchase it from me, representing that it is of less value than it actually is; you will be liable to me in an action on mandate. This will also be the case if I direct you to ascertain the financial condition of a party to whom I am about to make a loan, and you falsely represent to me that he is solvent.
43. The Same, On the Edict, Book XXIII.
A person who undertakes the performance of a mandate, "To place money for a certain time," and does so, can be sued on the mandate, and must assign any rights of action acquired by delay.
44. The Same, On the Edict, Book LXII.
It is a fraudulent act for anyone to refuse to proceed against a debtor whom he can sue, or where he does not require payment when it can be exacted.
45. Paulus, On Plautius, Book V.
If you have purchased a tract of land by my direction, can you bring an action on mandate against me, after you have paid the purchase money, or before you do so, in order to avoid selling your own property? It is rightly held that an action on mandate will lie, in this instance, to compel me to assume the obligation by which you are bound to the vendor; for I myself could bring an action against you to force you to assign your rights of action against the vendor.
(1) If, by my direction, you have undertaken the defence of a case which is still in court, you cannot take legal measures to transfer the defence to me, without good reason, for you have not yet executed the mandate.
(2) Moreover, if, while you are transacting my business, you bind yourself to one of my creditors, it must be said that before you make payment, you will be entitled to an action against me to compel me to assume the obligation, and if the creditor refuses to change the obligation, I will be obliged to furnish security to defend you against him.
(3) If I give an undertaking that you will appear in court, and I do not produce you, or, if I have assumed your liability, I can bring an action on mandate to compel you to release me before I make payment.
(4) If I should direct you to pay my creditor, and you should bind yourself to do so, and, in consequence, have judgment rendered against you; the more humane opinion is that, in this instance, an action of mandate will lie in your favor against me.
(5) Wherever we have stated that an action on mandate can be brought before the money has been paid, the mandatary will not be liable for non-payment, but only for his act; and as it is just that, where we have obtained a right of action against a mandatary, we should be compelled to assign it to the mandator; so, on the same principle, we should be bound in an action of mandate to release him from liability.
(6) If the surety should, on account of reasonable expenses incurred, pay a larger sum than that for which he bound himself, he for whom he became surety must make good the entire amount.
(7) I entered into an agreement with your debtor for the payment of what you owe me, at your risk. Nerva and Atilicinus say that I can bring an action on mandate against you with reference to what I have not previously been able to collect from him, even though the mandate had reference to your affairs. This is reasonable, for then he who substituted the debtor is not released if his creditor follows the claim, and it is not stipulated by him that this is at the risk of the debtor.
(8) The rule is the same if I should bring an action against the principal debtor by the direction of the surety, because, through executing the mandate, the surety would be released from his former liability.
46. The Same, On the Edict, Book LXXIV.
Where anyone binds himself for a party who promises as follows, namely: "If I do not deliver Stichus, I will pay a hundred thousand sesterces," and he purchases Stichus at a lower price and makes payment, in order that the stipulation for a hundred thousand sesterces, may not take effect; it is established that he can bring an action on mandate. It is, therefore, most convenient that the proper form should be observed in all cases of mandate, so that whenever the mandate is certain, its terms should not be violated; but when it is uncertain, or includes several alternatives, then, although its provisions may have been carried out by the performance of other acts than those prescribed by the mandate itself, still, if this was advantageous to the mandator, the action on mandate will lie.
47. Pomponius, On Plautius, Book III.
Julianus says that, if a wife promises her dowry to her surety, because she is indebted to him on account of his suretyship, after the marriage has taken place the husband can at once bring an action on mandate against the debtor; for the reason that he is understood to have lost money by means of which he could have paid expenses incurred during marriage.
(1) Where a party has become surety to deliver a slave for you, and he delivers another slave to the stipulator, he will not himself be released, nor will he release you; and therefore he will not be entitled to an action on mandate against you. But if the stipulator has obtained the said slave by usucaption, Julianus says that it must be held that there has been a release, and, in consequence of this, an action of mandate will lie, but only after usucaption has taken place.
48. Celsus, Digest, Book VII.
Quintus Mucius Scaevola says that if anyone has given security for money lent at interest, and the principal debtor, having been sued, attempts to deny that the money was lent at interest, and the surety, by paying the interest, deprives the principal debtor of the opportunity of refusing payment, he cannot recover this money from the principal debtor. If, however, the latter had notified the surety that he would refuse to pay what is due with interest, and the surety was not willing to refuse payment on account of his reputation, he can recover from the principal debtor whatever he paid on this account. This opinion Scaevola thought to be well founded; for, in the former instance, the surety paid but little attention to good faith, when he appeared to deprive the principal debtor of the power to avail himself of his right; but, in the latter instance, he should not have been a source of injury to the surety if he had had any regard for his own sense of honor.
(1) If I direct you to transact business for me by lending money, with the understanding that you are to transfer the claim to me at my risk, and that the profit, if any, will be mine; I think that the mandate will stand.
(2) But if I direct you to transact the business for yourself, so that the claim will remain in your possession; that is to say, that you may lend money to anyone you please, and receive the interest, and that I alone will assume the risk; this transaction is outside the terms of the mandate, just as if I should direct you to purchase any kind of a tract of land for me.
49. Marcellus, Digest, Book VI.
I purchase a slave of Titius in good faith, and have possession of him. Titius sold him by my direction, not being aware that he really belonged to him; or, on the other hand, I myself sold him at the direction of Titius, who became the heir of the party who purchased him; the question arises whether an action on the ground of superior title, and one on mandate will lie? I am of the opinion that Titius, although he made the sale as agent, is liable to the purchaser; and that he would not be entitled to an action for recovery, even if he had delivered the property, and therefore that an action on mandate will lie, if he was interested in the slave not being sold. On the other hand, the mandator, if he wishes to receive the property from him, will be barred by an exception on the ground of fraud, and will be entitled, as heir, to an action based on the purchase of the testator, who left him the property, against the vendor.
50. Celsus, Digest, Book XVIII.
If anyone who is transacting the business of a surety, paid the stipulator with the understanding that he would release the debtor and the surety from liability, and he does this in compliance with law, he can hold the surety liable in an action on the ground of voluntary agency; nor does it make any difference whether or not the surety has ratified his act, for he will, nevertheless, be entitled to an action on mandate, as soon as he does ratify it, and even before he pays the money to the agent.
(1) Where a certain amount of grain is due, and the surety delivers African grain, or, impelled by the necessity of payment, he gives something of greater value than the price of the property to be delivered, or he transfers Stichus, and the latter dies, or becomes worthless either through weakness or vice; the amount can be recovered by an action of mandate.
51. Javolenus, On Cassius, Book IX.
A surety, although he may have paid the money by mistake before it is due, can not, nevertheless, bring suit against the creditor; nor can he, indeed, bring an action on mandate to which he may be entitled against the principal debtor, before the day of payment arrives.
52. The Same, Epistles, Book I.
Where a party has become surety for another for a certain quantity of wheat, without any reference to its quality; I think that he will release the principal debtor by furnishing any kind of wheat whatsoever, but he cannot recover any other kind of wheat from the principal debtor, except that of the most inferior quality, by the delivery of which he could have released himself from the claim of the stipulator. Therefore, if the principal debtor is prepared to give to the surety the same kind of wheat, by giving which to the creditor, he himself could have been released, and the surety brings an action for the same kind of wheat which he furnished, that is to say, grain of superior quality, I think that he can be barred by an exception on the ground of fraud.
53. Papinianus, Questions, Book IX.
Where anyone becomes surety for another, relying on the honor of a third party who is present and does not object; he can hold both of them liable to an action on mandate. But if, in compliance with a mandate of one of the parties, he becomes surety unwillingly or in ignorance of the facts, he can only sue the one who gave him the mandate, and not him who incurred the obligation. It does not affect me, because the principal debtor is released by the money of the surety, for this happens even if you make payment in behalf of another by my direction.
54. The Same, Questions, Book XXVII.
Where a slave directs someone to purchase him, the mandate is void. But if the mandate was given for the purpose of manumitting the slave, and the party in question does not manumit him, the master and vendor can sue for the recovery of the purchase-money, and an action on the ground of affection can be brought, for suppose that the slave was a natural son, or a brother. It was held by persons learned in the law that, in bona fide cases, attention should be paid to the consideration of affection. Where the purchaser paid the price out of his own money, (for, otherwise he could not be released from liability to an action on sale), it is frequently asked whether he can properly bring an action on the peculium? The more correct and judicious opinion seems to be that the Praetor did not have in mind contracts of this kind made by slaves, by which they attempted to escape the bad treatment of their masters.
(1) If a freeman serving in good faith as a slave should direct someone to ransom him, and this is done with the money of the purchaser, it is established that the contrary action on mandate will lie; provided, however, that the rights of action which the purchaser has against the vendor are assigned, supposing that the purchaser did not manumit the free person aforesaid.
55. The Same, Opinions, Book I.
An agent who does not appropriate property which is locked up, but fails to return after it has been delivered to him, is liable to an action of mandate, but not to one of theft.
56. The Same, Opinions, Book III.
Where anyone has directed money to be loaned, the mandatary can sue the mandator without having recourse to the principal debtor, and without selling the pledges, and the creditor can even have recourse to him, if it is stated in the letter that he has a right to do so, even if the pledges are sold; for whatever is inserted in a contract for the purpose of removing all doubt, does not in any way restrict the effect of the Common Law.
(1) Where a surety has tendered the money in court, and, on account of the age of the party who is bringing the suit, has sealed it up, and publicly deposited it, he can immediately proceed by an action on mandate.
(2) It is none the less necessary to investigate the good faith of the mandatary during the entire time, where the owner of the property returns to the province after five years absence, having been compelled to leave on business for the State; although he may have renewed the mandate without having received an accounting. Hence, as it is the duty of the agent to transfer all that has been done during the first administration of the business into the account of the second, he will combine the matters attended to during the first period with those of the second.
(3) A salary which is dependent upon an uncertain promise cannot legally be collected by a resorting to extraordinary proceedings, nor have you the right to have it established by means of an action on mandate.
(4) It is necessary for an action on mandate to be brought for the recovery of bona fide expenses necessarily incurred; even though the agent may not have finished the business entrusted to him.
57. The Same, Opinions, Book X.
It is settled that a mandate for the sale of slaves is terminated by the death of the party who undertook the execution of the same; still, although the heirs, through mistake, and not with the intention of theft, but of performing a duty which the deceased had imposed upon himself, should sell the slaves, it is held that they could be acquired by the purchasers through usucaption, but that after the slave-dealer had returned from the province, he could not legally avail himself of the Publician Action, where, on proper cause shown, an exception would be granted him on the ground of his legal ownership of the slaves; for it is not proper that he who had relied upon the good faith of a certain individual, should sustain loss on account of the mistake or inexperience of the heirs.
58. Paulus, Questions, Book IV.
If you defend Titius in accordance with a mandate which has previously been given you, even if he were dead and you were ignorant of the fact; I think that you will be entitled to an action on mandate against the heir of Titius, because a mandate is terminated by the death of the mandator, but the action on mandate is not. If, however, you undertook the defence of the case without any mandate, you began, as it were, to transact the business of the deceased, and you will be entitled to an action against him on the ground of voluntary agency, just as if you had released him from liability. It can also be said that his heir will be liable to the same action.
(1) Lucius Titius gave a mandator to his creditor, the debtor having afterwards died and the majority of the creditors having consented, it was decreed by the Praetor that they should receive a portion of their claims from the heir, the creditor in whose behalf the mandator had been given, being absent at the time. I ask if this mandator were sued would he be entitled to the same exception as the heir of the debtor? I answered that, if he himself had been present before the Praetor, and had given his consent, the agreement would be held to have had proper foundation, and that this exception should be granted to both the surety and the mandator. But, as in the case stated he was absent, it is unjust to deprive him of his right of choice, since, if he had been present, he could have demanded his pledge or privilege, and refused to accept the decree of the Praetor. For no one can say that, if the creditor were barred, the heir would be benefited, but the mandator or the surety would be, as he would be compelled to make good to them the same portion in an action on mandate. But if the creditor had received his share of the indebtedness from the heir, would there be any doubt that he would be permitted to bring an action against the surety for the remainder? By the mere fact of bringing suit against the heir he would be held to have consented to the decree.
59. The Same, Opinions, Book IV.
If Calpurnius stipulated for the payment of money which had been lent by the direction of Titius, but had not been given with the intention of making a present of the same, an action on mandate can be brought against him by the heir of Titius, to compel him to assign his rights. The same rule applies where the money was exacted from Calpurnius.
(1) Paulus held that, if the surety purchased from the creditor property given in pledge by the debtor, an action on mandate could be brought against him by the heir of the debtor for its recovery, and that he could be compelled to surrender the profits together with the entire debt; for he should not be considered as resembling a stranger who had become the purchaser, since he was required to display good faith in every contract.
(2) Paulus also gave it as his opinion that, when the day on which Lucius Titius stated in writing that he would deliver the property is inserted in the mandate, this offers no obstacle to the bringing of an action on mandate against him after the time has elapsed.
(3) He also says that one of two mandataries who are bound for the entire amount can be selected, even if this has not been mentioned in the mandate; but that, after judgment has been rendered against both, execution can, and should be issued against each one of them for only half of the judgment.
(4) A creditor sold a pledge; I ask, if the purchaser was deprived of possession under a superior title, whether the creditor can have recourse to the mandator? And does it make any difference whether he made the sale under his right as creditor, or guaranteed the title in accordance with the Common Law? Paulus gave it as his opinion that if the creditor could not realize enough from the sale of the pledges to discharge the indebtedness, the surety would not seem to be released. From this opinion it is apparent that he will not be liable on the ground of eviction, but that this will contribute to his release.
(5) So-and-So to So-and-So, Greeting: "I direct you to lend eight aurei to Blaesius Severus, my relative, under such-and-such a pledge, and I will be accountable for the said sum, as well as any addition to it by way of interest; and you will be indemnified for the same as long as Blaesius Severus lives." The mandator having been afterwards frequently sued, did not answer, and I ask whether he will be released by the death of the debtor? Paulus replied that the obligation growing out of the mandate was a perpetual one, although it may have been inserted in the mandate that, on account of it the mandatary would be indemnified for the amount as long as Blaesius Severus lived.
(6) Paulus also stated that a person was not held to have complied with the conditions of a mandate, when it was inserted in the latter that proper security should be required of the debtor, if neither surety nor pledges had been received.
60. Scaevola, Opinions, Book I.
A creditor sued a mandator, and judgment having been rendered against the latter he appealed. The question arises whether the debtor can be sued by the creditor while the appeal is pending? I answered that he could be.
(1) Titius wrote to a party who was about to be married, as follows : "Titius to Seius, Greeting. You know the conditions of my mind toward Sempronia, and therefore, since you are about to marry her with my approbation, I wish that you may be satisfied that you are contracting marriage in accordance with your rank. And although I am aware that Titia, her mother, will promise the girl a suitable dowry, still, I do not hesitate to become your surety in order to better secure your friendship toward my household. Therefore, take notice that I will indemnify you for whatever you may have stipulated with her on this account, and that I have ordered this to be done in accordance with my good faith." In this manner, Titia, who had not directed Titius to do what he had promised in writing, nor had afterwards ratified it, promised a dowry to Seius. I ask whether, if the heir of Titius should make payment, he would be entitled to an action on mandate against the heir of Titia? I answered that, according to the facts stated, he would not be entitled to the action. The question also arose whether he would have a right of action on the ground of business transacted? I answered that he could not bring an action on this ground, for it was evident that Titius had given the mandate, not so much in behalf of Titia, as because he has consulted his own inclination. The inquiry was also made whether, if the husband should bring an action against the mandator, he would be barred by an exception? I answered that nothing had been stated by which he could be barred.
(2) The question arose, where anyone has authorized two persons to transact his business, whether each of them can be sued for the entire amount in an action on mandate? I answered that each of them could be sued separately for the entire amount, provided no more was recovered from both than was due.
(3) Where it was agreed upon, or tacitly understood, between a husband and his father-in-law, that the burden of the support of the wife should be borne by the husband, if the father paid interest on the dowry; the husband will have no action for the recovery of what he had not consumed, but if the father of the girl proves that he had directed his son-in-law to support his daughter, an action on mandate will lie.
(4) Lucius Titius committed the management of his business to his brother's son, in the following words: "Seius to his son, Greeting. I think that, in accordance with nature, a son should transact business for his father and his brother, without any express concession. I, however, give you authority to transact all of my business that you may wish, where any necessity arises, whether you desire to make sales, or enter into agreements, or make purchases, or attend to anything else whatsoever; just as if you were the owner of all my property, and I will ratify all that you have done, without opposing you in any of your acts." The question arose whether, if the party should alienate property or give a mandate, not with the intention of transacting the business, but fraudulently; would his act be valid? I answered that he who had given the mandate in question had certainly allowed great latitude, but that he had expected that the business would be conducted in good faith. I also ask whether, when Seius had contracted obligations in performing the duties of a magistrate, Lucius Titius could be sued on that ground, or whether his property would be liable on account of the above-mentioned words of the letter? I answered that he could not be sued, and that his property would not be liable.
61. Paulus, On Neratius, Book II.
If I have directed a son under paternal control to bring an action for a debt, and, having been emancipated, he collects it; I can properly bring an action on the peculium within a year; but Paulus says the action must be brought against the son himself.
62. Scaevola, Digest, Book VI.
Where a controversy has arisen with reference to the estate of a deceased person between the appointed heir on the one hand, and Maevius, the paternal uncle, and the paternal aunts of the testator on the other; Maevius stated in a letter which he wrote to his sisters that whatever he obtained in case of a favorable judgment, would belong to all of them in common; but no stipulation was entered into in accordance with the terms of the letter. The question arose whether, if Maevius had made an agreement with the heir in such a way that certain real estate and other property would come into his hands as the result of the same, a suit based on his letter could be brought against him by his sisters? The answer was that it could.
I gave a mandate in the following words: "Lucius Titius to his
friend Gaius, Greeting. I beg and direct you to offer yourself as
surety to Sempronius in behalf of Publius Maevius, and whatever is
not paid to you by Publius I will make good; and I notify you by this
letter written with my own hand." I
ask whether, if Gaius should not become surety, but should merely
direct the creditor, and act differently from what was set forth in
the mandate, he would be liable in an action on mandate? The answer
was that he would be liable.
A partnership can be formed either perpetually, that is, to say during the life of the parties, or for a certain time, or to begin at a certain time, or under some condition.
(1) In the formation of a general partnership, the entire property of the partners immediately belongs to them all in common.
2. Gaius, On the Provincial Edict, Book X.
Because, although delivery does not actually take place, still, it is tacitly presumed to do so.
3. Paulus, On the Edict, Book XXXII.
The existing debts remain in the same condition, but the rights of action should be reciprocally assigned.
(1) When a general partnership has been expressly entered into, estates, legacies, donations, and property acquired in any way whatsoever, are acquired in common.
(2) The question arises, when a lawful estate falls to any of the partners to be held in common, what is meant by the term "lawful estate"? Must this be understood to be one that descends to a party by law, or one which is bequeathed by will? It is more probable that it only refers to an estate which descends by law.
(3) Where a partnership is contracted fraudulently, or for the purpose of committing fraud, it is void by operation of law, because good faith is opposed to fraud and deceit.
4. Modestinus, Rules, Book III.
There is no doubt that a partnership can be formed by delivery of the property, verbally, and by means of a messenger.
(1) Partnerships are dissolved by renunciation, by death, by the forfeiture of civil rights, and by poverty.
5. Ulpianus, On the Edict, Book XXXI.
Partnerships are formed either generally, where all the property is held in common, or specially, for some particular kind of business, for the collection of taxes, or even for a single transaction.
(1) Moreover, a valid partnership can be formed by parties who have not the same means; since frequently one who is less wealthy, makes up by his labor what he lacks in property.
(2) A partnership cannot legally be contracted for the purpose of making a donation.
6. Pomponius, On Sabinus, Book IX.
If you form a partnership with me with the understanding that you are to have control of the shares of the partnership, this control should be such as would be exercised by a good citizen, and should be according to the judgment of one, as we may not be equal partners; for instance, where one of us has placed more labor, industry, or capital in the partnership.
7. Ulpianus, On Sabinus, Book XXX.
It is lawful to contract a simple partnership, and then, if no other provision is made, it is held to be one including everything acquired by gain, that is to say, where any profit is obtained from purchase, sale, leasing, and hiring.
8. Paulus, On Sabinus, Book VI.
Profit is understood to be whatever is derived from the industry of each of the partners.
9. Ulpianus, On Sabinus, Book XXX.
Sabinus does not add that such a partnership should include an inheritance, a legacy, a donation mortis causa, or non mortis causa, and this is perhaps for the reason that these things do not come without a cause, but are granted on account of merit.
10. Paulus, On Sabinus, Book VI.
And for the reason that very often an inheritance passes to us as a debt from a parent or from a freedman.
11. Ulpianus, On Sabinus, Book XXX.
Quintus Mucius renders the same opinion with reference to inheritances, legacies, and donations.
12. Paulus, On Sabinus, Book VI.
A debt due to a partner is not included in the capital of the partnership, unless it is derived from the profit obtained by one of the partners.
13. The Same, On the Edict, Book XXXII.
If it is stated in the articles of partnership that the gains and profits shall be in common, it is clear that this is to be understood only to apply to such profits as come from the efforts of the partners.
14. Ulpianus, On Sabinus, Book XXX.
If it is agreed by the partners that the property in common shall not be divided until a certain period has elapsed, they are not held to have agreed not to withdraw from the partnership before that time has passed. What would be the effect, however, if an agreement was made not to withdraw? Would it be valid? Pomponius very properly states that such an agreement would be void, for if it were not made, and one of the partners should withdraw at an inopportune time, an action on partnership will lie against him; and even if an agreement is made not to withdraw from the partnership within a certain period, and a partner should withdraw before it had elapsed, his withdrawal would be valid; nor would he be liable in an action on partnership who withdrew on the ground that the condition was not fulfilled under which the partnership was formed, or that his partner had caused him so much injury and loss that it was not advantageous for him to endure it;
15. Pomponius, On Sabinus, Book XIII.
Or because it was not possible for him to enjoy the property on account of which the business of the partnership was undertaken.
16. Ulpianus, On Sabinus, Book XXX.
The same rule applies where a partner withdraws from the partnership because he, even against his will, is obliged to be absent for a considerable time in the public service; although sometimes he can be opposed, since he may be able to conduct the transactions of the partnership through another person, or charge his partner with it; still, this cannot be done unless his partner is especially qualified for the business, or another can be easily obtained for the management of the partnership, by the partner who is obliged to be absent.
(1) Therefore, where it is agreed that the partnership property is not to be divided, unless some good reason arises, it cannot be sold, or disposed of in any other way so that a division may be made. And, in fact, it may be said that a sale is not absolutely forbidden, but an exception can be filed against the purchaser if he divides the property before the vendor had a right to do so.
17. Paulus, On Sabinus, Book VI.
A partner who alienates property under such circumstances violates the agreement relative thereto, and is liable to an action on partnership, or for the division of property held in common.
(1) If a partnership is dissolved in the absence of a partner, the ownership remains in common until the latter ascertains what he who withdrew from the partnership has acquired, for any loss should be borne by him alone who withdrew; but what the absent partner may have acquired belongs exclusively to him, and any loss resulting therefrom must be apportioned in common.
(2) In the formation of a partnership, nothing is gained by the partner giving security not to withdraw; because an inopportune withdrawal causes liability for damages by operation of law, in an action on partnership.
18. Pomponius, On Sabinus, Book XIII.
Where a slave forms a partnership, it will not be sufficient for him to be ordered by his master to withdraw from it, but his partner must be notified of his renunciation of the same.
19. Ulpianus, On Sabinus, Book XXX.
Where anyone is admitted into a partnership he alone is his partner who admitted him. This is perfectly proper, for, since a partnership is formed by consent, he cannot be my partner whom I am unwilling should be such. What would be the case, however, if my partner should admit him? He would be his partner alone;
20. The Same, On the Edict, Book XXXI.
For the partner of my partner is not mine.
21. The Same, On Sabinus, Book XX.
And whatever such a partner may obtain from our partnership he will share with the one who admitted him; for we will not hold our share in common with him, and he who admitted him will be responsible for him to the partnership; that is to say, the said partner will have a right of action against him, and will pay to the partnership whatever he recovers.
22. Gaius, On the Provincial Edict, Book X.
On the other hand, he who has admitted him will be responsible to him for the acts of the other partners as well as for his own, because he himself has a right of action against them. It is also certain that there is nothing to prevent proceedings in an action on partnership from being instituted between the partner who admitted him and him who was admitted, before this is done between the other partners and the one who admitted him.
23. Ulpianus, On Sabinus, Book XXX.
Pomponius is in doubt as to whether it will be sufficient for the said partner to assign to his associates the right of action which he has against the newcomer, in case of loss, if the latter should not prove to be solvent, or whether he should fully indemnify them. I think that he who admitted the new partner will be liable to indemnify them entirely, because it would be difficult to deny that he was to blame for doing so.
(1) He also asks whether any profits which may have accrued on account of the admission of the said partner can be set off against a loss which was caused by his negligence? He answered that they should be set off, which is not correct; for Marcellus states, in the Sixth Book of the Digest, that, if the slave of one of several partners having been placed in charge of the affairs of the partnership by his master, conducts them in a negligent manner, he who placed him in charge must make good the loss to the partnership; nor can any profits which may have accrued to the partnership through the slave be set off against the loss. He also says that the Divine Marcus decided that one partner could not say to another: "Relinquish the profits which have accrued through your slave, if you desire to be indemnified for the loss."
24. The Same, On the Edict, Book XXXI.
It is evident that if two partners place the slave of one of them in charge of the business of the partnership, the master of said slave will not be responsible except to the extent of the peculium; for both of them should be liable to the same risk, as they both appointed him.
25. Paulus, On Sabinus, Book VI.
A partner is none the less liable for any loss suffered by his fellow-partners on account of his negligence; even though the value of the partnership property may have been increased in many other ways by his industry. The Emperor Antoninus rendered this decision in a case brought before him on appeal.
26. Ulpianus, On the Edict, Book XXXI.
And, therefore, if a partner transacts business relating to the partnership in a negligent manner, but in many respects benefits the partnership pecuniarily, the profit will not be set off against the negligence; as Marcellus stated in the Sixth Book of the Digest.
27. Paulus, On Sabinus, Book VI.
All debts contracted during the existence of the partnership must be paid out of the common fund, even though payment was not made until after the partnership has been dissolved. Therefore, if a partner entered into a contract under a condition, and the condition took place after the partnership had been dissolved, the indebtedness must be discharged out of the common property. Hence, if the partnership is dissolved in the meantime, security should be furnished to one another by the partners.
28. The Same, On the Edict, Book LX.
If we are partners, and one of us owes a sum of money payable within a certain time, and the partnership is dissolved; the partner cannot deduct this sum as if it was due at that time, but it must be divided among all the partners, who should give security to defend their other partner when the day of payment arrives.
29. Ulpianus, On the Edict, Book XXX.
Where the apportionment of shares is not mentioned in the formation of the partnership, it is held that they are equal. If, however, it should be agreed upon that one should have two shares, or three, and another, one, will this be valid? It is established that it will be, provided that the parties have furnished more money or labor to the partnership, or where any other good reason whatsoever exists.
(1) Cassius holds that a partnership can be formed in such a way that, while one of the partners will not be liable for any loss, the profit will be common to all. This, however, will only be valid (as Sabinus says) where the value of the services of the partner will be equal to the loss; for it frequently happens that the industry of one partner is of greater advantage to the partnership than the capital invested. The same rule applies if one partner alone makes a voyage by sea or land, as only he is exposed to danger.
(2) Aristo states that Cassius was of the opinion that a partnership could not be formed in such a way that one partner would take the profit and the other assume the loss, and a partnership of this description is usually called a "leonine" one. We, also, think that a partnership of this kind is void, where one of the partners takes the profit, and the other does not receive any gain at all, but sustains the loss; a partnership is extremely unjust where one partner suffers the loss, and receives no benefit whatever from it.
30. Paulus, On Sabinus, Book VI.
Mucius states in the Fourteenth Book, that a partnership cannot be formed in such a way that one partner will suffer a certain part of the loss, and another receive a different share of the profit. Servius says in his Notes on Mucius, that such a partnership cannot legally be formed, for that only is understood to be profit which remains after all loss has been deducted, nor does loss exist unless all the profit has been previously deducted. A partnership can, however, be formed in such a way that different amounts of the profits remaining in the funds of the partnership, after all loss has been deducted, can be paid to the partners; and, in like manner, where loss has been sustained, different shares of it may be apportioned among the several partners.
31. Ulpianus, On Sabinus, Book XXX.
In order for an action on partnership to be brought, the partnership must intervene in the proceedings, for it is not sufficient for the property to be in common, unless the partnership appears as a party to the suit, for an action can be brought in common even outside the partnership; as, for instance, where we happen to own property together without the intention of forming a partnership, which occurs where property is bequeathed to two parties, and also where an article is bought by two persons at the same time; or where an estate or donation passes, or is given to us in common, or where we purchase separately the shares of two joint-owners, without the intention of becoming partners:
32. The Same, On the Edict, Book II.
For when a partnership is formed by express agreement, an action on partnership will lie; but where there is no agreement, an action can be brought with reference to the property itself, and the business is held to have been transacted in common.
33. The Same, On the Edict, Book XXXI.
As in the case of farmers of the revenue, as well as where there are several purchasers; for where they are unwilling to contend with one another, they are accustomed to purchase the property in common by means of messengers, and this is very different from a partnership. Therefore, where a ward enters into a partnership without the authority of the guardian, he will still be liable to an action on the ground of business transacted in common.
34. Gaius, On the Provincial Edict, Book XX.
In those instances where one party happens to have expended money on the common property, or collected the crops or profits of the same, or has diminished its value, there is no ground for an action on partnership; but among co-heirs an action for partnership of the estate will lie, and among others an action for the division of property owned in common. An action for the division of property held in common can also be brought between those to whom it belongs by hereditary right.
35. Ulpianus, On Sabinus, Book XXX.
No one can enter into a partnership in such a way that his heir may become a partner therein. An action, however, can be brought against the heir of a partner to compel him to fulfill the obligation of the deceased;
36. Paulus, On Sabinus, Book VI.
And he must also make good the effects of any negligence of the party of whom he is the lawful successor, even though he himself may not be a partner.
37. Pomponius, On Sabinus, Book XIII.
It is clear that, if the heirs of partners have the intention of forming a partnership in the estate by new consent, whatever they afterwards do will furnish ground for an action on partnership.
38. Paulus, On Sabinus, Book VI.
The arbiter in an action on partnership should see that security is given for future loss or gain during the existence of the partnership. Sabinus thinks that this should be done in all bona fide cases, whether they are in general terms, for example, such as arise from partnership, or from voluntary agency, or from guardianship; or whether they are of a special character, as, for instance, where they are based on mandate, on loan for use, or on deposit.
(1) If you and I have formed a partnership, and the property derived from it is held in common, Proculus says that I can recover any expense I may have incurred on account of said property, and any profit you may have obtained from the same, by an action on partnership, or by one for the division of common property; and that one of these actions puts an end to the other.
39. Pomponius, On Sabinus, Book XIII.
Where you and I own a field in common, and you bury a dead body therein, I can bring an action on partnership against you.
40. The Same, On Sabinus, Book XVII.
The heir of a partner, although he is not a partner, should nevertheless finish what has been left incomplete by the deceased; and, in this instance, any bad faith of which he may be guilty can be taken into consideration.
41. Ulpianus, On the Edict, Book XX.
Where one partner has entered into a stipulation with another with reference to a penalty, he cannot bring an action on partnership if the amount of the penalty was only equal to that of his interest.
42. The Same, On Sabinus, Book XLV.
If, however, he has obtained the penalty of the stipulation after the action on partnership has been brought, he will be entitled to that much less, as the penalty will be charged against him to the principal.
43. The Same, On the Edict, Book XXVIII.
Where suit has been brought for the division of property held in common, the right of action on partnership is not extinguished, for the latter has reference to the partnership and the obligations thereby contracted, and does not admit of adjudication; but if, an action on partnership is afterwards brought, less will be recovered by it than by the former one.
44. The Same, On the Edict, Book XXXI.
If I should give you pearls to be sold, with the understanding that if you dispose of them for ten aurei you must pay me ten, but if you sell them for more, you can have the surplus; it seems to me that if this was done with the intention of forming a partnership, an action on partnership will lie, otherwise, one on a verbal contract can be brought.
45. The Same, On Sabinus, Book XXX.
An action for theft on account of common property can be brought against a partner where, either through fraud or malicious intent, he has removed said property or disposed of it for the purpose of concealment, but he will also be liable to the action on partnership, for one action does not destroy the other. The same rule is applicable to all bona fide actions.
46. Paulus, On Sabinus, Book VI.
The same rule also applies to a tenant, and to a party who is transacting the business of another, as well as to one who is executing a mandate of ours, and to a guardian.
47. Ulpianus, On Sabinus, Book XXX.
If I bring suit for the recovery of stolen property, the right of action on partnership is extinguished, unless I have still further interest in the matter.
(1) Where a partner has caused damage to property held in common, Celsus, Julianus, and Pomponius say that he will be liable under the Lex Aquilia;
48. Paulus, On Sabinus, Book VI.
But he will, nevertheless, also be liable to an action on partnership,
49. Ulpianus, On the Edict, Book XXXI.
If he has injured the partnership by his act; as, for example, if he has wounded or killed a slave belonging to it and who transacted its business.
50. Paulus, On Sabinus, Book VI.
The result of bringing the action on partnership is that the partner must be satisfied with one or the other of the two proceedings; because both have in view the recovery of the property, and not, as in an action for theft, merely the collection of the penalty.
51. Ulpianus, On Sabinus, Book III.
It is also very properly added: "That an action for theft will only lie if the partner removed the property fraudulently, and with malicious intent," because if he did so without malicious intent he would not be liable to an action for theft. And, indeed, it is generally held that a party who owns a share of the property would prefer to lawfully enjoy the same, rather than to form an intention to steal it.
(1) Therefore, let us see whether he will be liable under the Lex Fabia; and, although reason suggests that he should not be held responsible, still, if he has kidnapped the slave, or concealed him, he will be liable under the Lex Fabia.
52. The Same, On the Edict, Book XXXI.
Where a tract of land adjoining two others is to be sold, and one of the parties asks another to purchase it so that he can transfer to him that part which joins his own premises, and soon after he himself purchases the tract, his said neighbor not being aware of the transaction; the question arises whether the neighbor has any right of action against him. Julianus stated that this involved a perplexing question of fact, for if the intention was that the neighbor should buy the land of Lucius Titius, and convey it to me, the neighbor would have no right of action against me who made the purchase; but if the intention had really been that a purchase of common property was to be made, I would be liable to an action on partnership to compel me to transfer to you the remainder of the land after having deducted that portion which I directed you to buy.
(1) Good faith is an important element in this action on partnership.
(2) The question arises whether a partner is only liable for fraud, or whether he is also liable for negligence? Celsus states in the Seventh Book of the Digest, that partners are responsible to one another for negligence as well as fraud. And he says that, if, in forming a partnership, one of them promised to furnish his skill and labor, as, for instance, where a flock held in common is to be pastured; or we give a field to a party to be improved, and from which the crops are to be gathered in common; in this case he will surely be liable for negligence, for the consideration is the value of his labor and skill. Where a partner damages the common property, it is held that he is also liable for negligence.
(3) Partners are not responsible for unforseen accidents, that is to say, for those that are unavoidable. Therefore, if a flock, after having been appraised, is delivered to a partner and it is lost through an attack by robbers, or by fire, the loss must be borne in common, if no fraud or negligence attaches to the party who received the said flock after it had been appraised. Where, however, it was stolen by thieves, the loss must be sustained by the party to whom it was entrusted, because he who received the flock after its valuation was obliged to take care of it. These opinions are correct, and an action on partnership will lie, provided that the flock, even though it had been appraised, was delivered to be pastured with the intention of forming a partnership.
(4) Two parties formed a partnership in the business of manufacturing soldiers' cloaks. One of them, having undertaken a journey for the purpose of purchasing materials, fell among thieves, and his money was taken, his slaves were wounded, and he lost his private property. Julianus says that the loss must be borne in common, and that, therefore, the partner will be entitled to an action on partnership for half of the loss not only of the money, but also of the other property which the partner did not take with him, unless he made the journey for the purpose of purchasing merchandise on account of the partnership. Julianus very properly holds that if any expense was incurred for physicians the other partner is liable for his share. Hence, if property is lost by shipwreck, and merchandise was involved which it is not customary to transport by vessel, both parties must sustain the loss; for it, as well as the profits must be divided in common when it does not occur through the negligence of a partner.
(5) Where two bankers are partners, and one of them profits by a transaction separately, and appropriates the gain therefrom, the question arises whether the gain should be divided? The Emperor Severus gave the following reply in a Rescript to Flavius Felix: "Where a partnership to carry on a banking business has been expressly formed for that purpose, any profit which a partner obtains in any way not connected with said banking business, has been determined by law not to belong to the partnership."
(6) Papinianus also says in the Third Book of Opinions: "Where brothers retain undivided the estates of their parents, in order to share among themselves the profits and losses of the same, any acquisitions which they obtain from any other source do not belong to the common fund."
(7) He likewise states in the Third Book of Opinions that, having been consulted with reference to certain facts, he gave the following opinion: "An agreement was made between Flavius Victor and Vellicus Asianus that land having been purchased with the money of Victor, certain buildings should be erected by the labor and skill of Asianus, and, after the said buildings were sold, Victor should receive the money which he had invested and a certain sum besides, and Asianus, who had contributed his labor to the partnership, should be entitled to the remainder." In this instance an action on partnership will lie.
(8) Papinianus also states in the same Book that where a voluntary partnership was formed between two brothers, the salaries and other compensations should be brought into the common fund of the partnership; although a son who is emancipated would not be compelled to give what he obtained in this way to his brother who remained under the control of his father, because, he says, even if he should remain under paternal control, these things would still be his private property.
(9) He also gave it as his opinion that a partnership could not last beyond the death of the partners; and therefore that anyone could not be deprived of the power of testamentary disposition, or of transferring his estate to a more distant cognate than others who were more nearly related.
(10) Papinianus also gave it as his opinion that, where a partner repaired certain parts of a building belonging to the partnership which was falling into ruin, or had become dilapidated, that he could, as a privileged creditor, either recover the principal expended together with the interest within four months after the work had been completed, or he could acquire said building as his own after that time, and that he had a right, nevertheless, to bring an action on partnership for the recovery of his interest; for example, if he preferred to obtain what belonged to him rather than the ownership of the property. An Address of the Divine Marcus fixed the term of four months for the interest to cease, because, after that time, the partner would acquire the ownership.
(11) Where persons form a partnership in order to purchase something, and afterwards the property is not purchased on account of the fraud or negligence of one of them, it is established that an action on partnership will lie. It is clear that if this condition is added, namely, "If the property is sold within a certain time," and the period elapses without the partner being guilty of negligence, the action on partnership can not be brought.
(12) Cassius stated that the action on partnership is also available for the recovery of expenses incurred by one of the partners in repairing a water-course owned in common.
(13) Mela also says that where two neighbors each contributed half a foot of land for the purpose of constructing a party-wall together, which was intended to support buildings belonging to each of them, and after said wall was built, one of them would not permit the other to use its support, an action on partnership would lie. The same authority held that, where two parties purchased a vacant lot to avoid their light being shut off, and it was delivered to one of them who would not allow the other to have what was agreed upon, an action on partnership can be brought.
(14) Where several partnerships are formed by the same persons, it is established that one judgment will be sufficient to decide all controversies which may arise with reference to them.
(15) Where one partner makes a journey connected with the business of the partnership, as for instance, for the purchase of merchandise, he will only be reimbursed for the expenses incurred by him on account of the partnership. He can, therefore, properly charge reasonable travelling expenses he incurred for hotel accommodations, for beasts of burden and the hire of vehicles, as well as for the transport of himself and his bales of goods, including the price of the same.
(16) Neratius says that where anyone is a general partner, he should place all his property in the partnership fund; and therefore he gives it as his opinion that the partnership will be responsible, under the Aquilian law, for any injury inflicted upon himself, or where any personal wrong has been inflicted upon him or his son.
(17) He also says that a partner, who has entered into a general partnership, is not required to bring into the common fund anything which he has acquired by unlawful means.
(18) On the other hand, it is also discussed by the ancient authorities whether a general partner who had had judgment rendered against him in an action for injury committed, could, by means of legal proceedings, compel the partnership to make good the judgment? Atilicinus, Sabinus, and Cassius answered that if he had been unjustly condemned, he would be entitled to recourse of this kind; but if the said injury resulted from some illegal act of his own, he himself alone must sustain the loss; which agrees with what Aufidius states was the opinion of Servius, that is, where there were two general partners, and one of them had judgment rendered against him for not appearing in court, he could not recover the amount of the judgment out of the partnership property; but if he, while present, suffered an unjust decision, he must be reimbursed from the partnership fund.
53. The Same, On Sabinus, Book XXX.
It is clear that the proceeds of a theft or of any other breach of the law should not be placed in the partnership property, because a partnership in crime is base and dishonorable. Still, it is evident that if property obtained in this way becomes a part of the common fund, the gain must be divided:
54. Pomponius, On Sabinus, Book XIII.
For the reason that where a partner places the proceeds of a crime in the partnership fund, he cannot recover it, except where he is compelled to surrender it by a judicial decision.
55. Ulpianus, On Sabinus, Book XXX.
Therefore, if a party who committed an illegal act is sued, he can either surrender only what he misappropriated, or he can do this with a penalty. He can give up the property, which was taken, alone, in case the other partner was ignorant that he had placed it with that of the partnership. If, however, he was aware of the fact, he, also, will be liable to the penalty, for it is but just that he who participated in the profit should also share the loss.
56. Paulus, On Sabinus, Book VI.
Nor does it make any difference whether the partner is compelled to surrender the property obtained by theft while the partnership is still in existence, or after it has been dissolved. The same rule applies to all actions which arise from dishonorable conduct, as, for instance, those based on injury, robbery with violence, the corruption of slaves, and others of this kind, as well as to all pecuniary penalties imposed in prosecutions for crime.
57. Ulpianus, On Sabinus, Book XXX.
Pomponius says the fact must not be lost sight of that these rules only apply where a partnership has been formed for an honorable and lawful purpose; for if it has been formed in order to break the law, it will be void, as it is generally held that there can be no partnership in matters which are dishonorable.
58. The Same, On the Edict, Book XXXI.
It should be considered whether an action on partnership can be brought where the property which one of the partners brought into the common fund has been lost. This point was discussed by Celsus in the Seventh Book of the Digest, with reference to a letter of Cornelius Felix as follows: "You have three horses, and I have one; we form a partnership with the understanding that you will take my horse, sell the four horse team and pay me one-fourth of the proceeds." Therefore, if my horse dies before the sale is concluded, Celsus says that he does not think that the partnership will continue to exist, and that no portion of the value of your horses is due, for the partnership was not entered into to form a team of four horses, but to sell one. But if the intention of the parties was stated to be the formation of a four horse team, and the holding of the same in common, and that you should be entitled to a three fourths interest, and I to a one fourth interest in the same, there is no doubt that we are partners to that extent.
(1) Celsus also discusses the point, where we have contributed money for the purchase of merchandise, and my money has been lost, at whose risk would this be? He says that if the money was lost after it had been placed in the partnership fund, which would not have taken place unless the partnership had been formed, both parties must bear the loss; just as in the case where money is lost which was being taken to some distant place for the purchase of goods. If, however, the money was lost before it had been placed in the common fund, but after you had destined it for that purpose, he says that you can recover nothing on that ground, because it did not belong to the partnership when it was lost.
(2) Where a son under paternal control enters into a partnership, and is afterwards emancipated by his father, the question is asked by Julianus whether the same partnership continues to exist? Julianus states in the Fourteenth Book of the Digest, that the partnership does continue to exist, for the reason that in contracts of this kind the beginning of the transaction must be considered. There is ground, however, for two actions, one against the father, and the other against the son. The one against the father should be brought for what he ceased to be liable for on the day before the emancipation, for he is not liable for the time the partnership existed after the emancipation; the one against the son, however, includes both periods, that is to say, the entire time embraced by the partnership; for he says that if the partner of the son was guilty of any fraudulent act after the emancipation of the latter, an action on that ground should be granted to the son and not to the father.
(3) If my slave form a partnership with Titius, and it continues after the alienation of the slave, it can be said that the first partnership was terminated by the alienation of the slave and that an entirely new one began, and, therefore, that an action on partnership will lie both in my favor and in that of the purchaser of the slave. An action should also be granted against me as well as against the said purchaser, for any causes which arose before the alienation of said slave; but with reference to anything which took place afterwards, an action should be granted against the purchaser alone.
59. Pomponius, On Sabinus, Book XII.
To such an extent is a partnership dissolved by death, that we cannot even admit that an heir may succeed to the partnership. Sabinus states that this applies to private partnerships, but in such as have for their object the collection of taxes, the partnership, nevertheless, continues to exist after the death of a partner; but only provided that the share of the deceased has been transferred to the heir, so that the other partner also must divide with the heir, and this also depends upon circumstances; for what if he on account of whose services the partnership was especially formed, or without whom its affairs could not be managed, should die?
(1) What a partner loses by gambling, or as the result of adultery, cannot be charged to the partnership property, but if a partner has lost anything on account of our fraudulent acts he can recover it from us.
60. The Same, On Sabinus, Book XIII.
Labeo says that a partner who fails to report to the partnership the profit which he has obtained, or one who uses the money for his own benefit, must pay interest on it, not as ordinary interest, but by way of indemnity for what his partner has suffered by reason of his default. If, however, he did not make use of the money, or was not in default, the contrary rule applies. Moreover, after the death of a partner, no estimate of damages can be made on account of any act of his heir, because the partnership was dissolved by the death of the partner.
(1) A partner, while attempting to prevent slaves, who formed part of the stock of the partnership from escaping, was wounded; Labeo says that the expense which he incurred for medical services, in consequence, cannot be recovered by an action on partnership, because it was not actually caused by the partnership business, although it was done on account of it; just as if where someone had avoided appointing a party an heir, or had passed him by in bequeathing a legacy, or had managed his property more negligently on account of a partnership, for any gain which he himself had obtained on account of the partnership he would not be obliged to place in the common fund; as, for example, if he had been appointed an heir on account of the partnership, or anything had been given to him for this reason.
61. Ulpianus, On the Edict, Book XXXI.
According to Julianus, however, he can recover what he paid out for himself for medical services in a case of this kind; and this is true.
62. Pomponius, On Sabinus, Book XIII.
If Titius, with whom I have formed a partnership should die, and I am of the opinion that his estate belongs to Seius, and I sell the common property and take half of the proceeds of the sale, and Seius takes the other half; you, who are in reality the heir of Titius, cannot recover from me, in an action on partnership, the money which I have paid out; as was held by Neratius and Aristo, because I have only received the value of my share. Nor does it make any difference whether I dispose of my share separately, or together with that which the other party alleges is his. Otherwise, the result would be that, even if two partners should sell the property of the partnership, either one of them would be liable to the other in an action on partnership for half of whatever had come into his hands. But you would not be obliged to make good to me in a suit for the estate anything that you might have obtained from Seius, because what came into his possession was the price of your share, and nothing could be recovered from him by me, since I have already obtained what was mine.
63. Ulpianus, On the Edict, Book XXXI.
The opinion of Sabinus is correct, namely, that if the parties are not general partners, but only associated for a particular purpose, or where they have acted in bad faith to avoid responsibility, they can still have judgment rendered against them to the extent of their resources. This is perfectly reasonable, as a partnership in some respects resembles a fraternity.
(1) It should be considered whether only the surety of a partner should be indemnified, or is this, indeed, a personal advantage to all? I think the latter to be the better opinion; if, however, the surety should undertake to defend the action of the partner, he can profit by it; for Julianus says, in the Fourteenth Book of the Digest, that the defender of the partner can only have judgment rendered against him to the extent of the resources of said partner. And he adds that the same rule applies to one who acts as a defender of a patron. This rule is also generally applicable to all those who are sued to the amount of the means which they possess.
(2) This exception, however, should not be granted to the father or master of a partner, if the partnership was contracted by the direction of either; because it will not be granted to the heir and other successors of the partner, for the reason that we do not accord the same privilege to heirs or successors not to have judgment rendered against them beyond the extent of their resources.
(3) But how can an estimate of the financial resources of a partner be made? It has been established that the indebtedness of the partner should not be deducted; and this Marcellus stated in the Seventh Book of the Digest; unless, as he says, the debts had been contracted with reference to the partnership itself.
(4) It must also be considered whether the partner should, in a case of this kind, furnish security for what he cannot pay, that is to say, make a bare promise to do so. I think that this is the better opinion.
(5) If, where there are three partners, one of them should bring an action against one of the others, and recover his entire share, and then another should bring an action against the remaining partner, but is unable to recover his entire share because the said partner is not solvent; the question arises whether he who failed to obtain all that he was entitled to, can bring an action against the one who received the entire amount of his share, for the purpose of making a division, that is to say, of placing all the shares upon the same footing, since it is unjust that one should obtain more and the others less from the same partnership? This opinion is founded upon equity.
(6) In order to determine whether a partner is able to pay the amount which he owes, we must take into account the time when the judgment was rendered.
(7) Anyone is held to be able to make payment who has committed a fraudulent act in order to avoid doing so, for it is not just for anyone to profit by his own fraud. This should be understood to apply to all those against whom suit is brought to the extent of their resources. If, however, a party is unable to make payment, not on account of fraud, but because of his own negligence, it must be held that judgment should not be rendered against him.
(8) An action on partnership can also be brought against the heir of the partner, even though he may not be a partner, for even if he is not one, he is, nevertheless, the successor to the profits of the partnership. We observe the same rule with reference to partnerships for the collection of taxes and others of the same kind, namely that the heir is not a partner unless he has been admitted to the partnership; still, all the profits of the partnership belong to him, to the same extent that he is responsible for the losses which may occur either during the lifetime of the partnership in the collection of taxes, or afterwards. This rule is not applicable in the case of voluntary partnerships.
(9) If one of two masters bequeaths a legacy, without his freedom, to a slave held in common, this legacy belongs entirely to the surviving partner. Nevertheless, the question arises whether he can bring an action on partnership, for the division of the legacy, against the heir of the deceased partner? Julianus says that Sextus Pomponius states that the opinion of Sabinus is that the legacy cannot be divided. Julianus says, that there are good grounds for this opinion, for what has been acquired has not been done by reason of the partnership, but on account of the share of the partnership in the slave. It is not necessary for a division to be made of what a partner does not acquire through the partnership, but by means of his own property.
(10) A partnership is terminated by the non-existence of those who compose it; by loss of its property; by the will of the partners; and by legal proceedings. A partnership, therefore, is held to be dissolved when either the persons composing it, the property belonging to it, the agreement of the partners, or judicial proceedings relating to it, come to an end. The partners cease to exist, through the alteration of civil rights either in its greatest, intermediate, or least degree, or by death. The property is held to be lost where none remains, or its condition is changed; for no one can be a partner in property which is no longer in existence, nor in such as has been consecrated for religious purposes, or forfeited to the State. A partnership is terminated by the will of the parties, by withdrawal.
64. Callistratus, Questions, Book I.
Hence, if partners begin to act separately, and each one of them transacts business on his own account, there is no doubt that the partnership is dissolved.
65. Paulus, On the Edict, Book XXXII.
It is terminated by legal proceedings when the purpose for which it was formed is changed, either by stipulation or judicial decision; for Proculus says that a partnership is dissolved whether it be general or special, whenever legal steps are taken for the purpose of putting an end to it.
(1) Labeo says that a partnership is dissolved where the property of one of the partners is sold by his creditors.
(2) Labeo also says that if the partnership was formed for the purpose of purchasing or leasing something, that then, any profits which may have accrued, or any loss which may have taken place, must be divided in common after the death of one of the partners.
(3) We have stated that a partnership can be dissolved by the dissent of the parties, that is, if all of them are of one mind in this respect. But, what if only one of them should withdraw? Cassius stated that he who retires from the partnership releases his partners from responsibility, so far as he himself is concerned, but does not release himself from liability to them. This rule, however, should only be observed where the withdrawal is made from fraudulent motives; as, for instance, if we form a general partnership, and afterwards an inheritance passes to one of the partners and he retires on this account; if the inheritance should be productive of any loss, this must be borne by the partner who withdrew from the partnership, but he can be compelled by an action on partnership to share with the others any profits arising from the same. If he should acquire any property after his withdrawal, it will not be shared with the other partners, because fraud has not been committed with reference to it.
(4) Moreover, if we form a partnership for the purchase of certain property and afterwards you wish to purchase it yourself, and for this reason you withdraw from the partnership, you will be liable to the extent of my interest in said property. But if you withdraw because the purchase was displeasing to you, you will not be liable even if I purchase it; because in this instance no fraud exists. These opinions were also held by Julianus.
(5) Labeo also stated in his work on recent cases, that if one partner should withdraw from the partnership at a time when it was the interest of the other for it not to be dissolved; he will be liable to the action on partnership; for if we form a partnership for the purchase of slaves, and, after doing so, you withdraw from the association at a time which is not favorable for the sale of the slave, in this case, you will be liable to an action on partnership, because you have rendered my position worse. Proculus holds this opinion to be correct only where it is the interest of the partnership not to be terminated; for greater consideration is usually shown to what is beneficial to the partnership, than for the private advantage of one of the partners. These rules are only applicable where nothing has been agreed upon with reference to these matters, when the partnership was formed.
(6) Where a partnership has been formed for a certain time, one of the partners, by withdrawal from it before the time has elapsed, releases his partner from liability to himself, but he does not release himself from liability to his partner. Hence, if any profit is obtained after his withdrawal, he will not be entitled to any share of it; but if any expenses have been incurred, he must also pay his share, unless his withdrawal took place on account of some necessity. When, however, the time has elapsed, either party is free to withdraw, because this can be done without fraudulent intent.
(7) We can also withdraw from a partnership by the agency of others, and therefore it is held that an agent can also withdraw in behalf of his principal. Let us consider, however, whether what has been stated on this point applies to him to whom the general management of the partnership property has been entrusted, or to him to whom special directions on this subject have been given; or can the withdrawal legally be made in either instance? The latter is the more correct opinion, unless the principal expressly forbade the agent to withdraw.
(8) It is also settled that my partner can give notice of his withdrawal to my agent. Servius says in a note on Alfenus that it is in the power of the principal, when notice of withdrawal is given to his agent, to ratify or reject it at his pleasure; therefore, he will be held to be released from liability to whose agent notice of withdrawal was given; but he, also, who gave notice to the agent of his withdrawal, will be released if he so desires; as we have stated with reference to one partner who personally notifies the other of his withdrawal.
(9) A partnership is dissolved by the death of one of the partners, even though it was formed with the consent of all, and several survive, unless some other arrangement was made when the partnership was formed; nor can the heir of a partner succeed to the partnership, but he can share in the profits of it afterwards. Moreover, any loss resulting from fraud or negligence in transacting the business before the death of the partner, must be made good to the heir, as well as by him.
(10) Moreover, a partnership formed for any special purpose is terminated when the business for which it was entered into is finished. If, however, one of the partners should die, while the affairs of the partnership were still unchanged, and the reason for the formation of the partnership should only appear after his death, we must then make the same distinction as in the case of a mandate; namely, that if the death of one of the partners was unknown to the other, the partnership will continue to exist; but if it was known, it will be dissolved.
(11) Just as the partnership does not pass to the heirs of a partner, so also it does not pass to an arrogator; lest, otherwise, a partner might become associated with persons against his will. The party who was arrogated will, however, remain in the partnership, for even if a son under paternal control should be emancipated, he will still continue to be a partner.
(12) We have stated that a partnership can also be dissolved by the confiscation of property, which is held to relate to the forfeiture of all the property of a partner to the State, for the latter is considered as dead when another partner succeeds him.
(13) If any expense should be incurred with reference to the partnership property, after the partnership has been dissolved, a partner cannot recover said expense in an action on partnership, because it is not true that this was done in behalf of the other partner, or on account of the partnership interest; but, in an action for the division of property held in common, account must be taken of this expense, for although the partnership may have been dissolved, the division of the property nevertheless remains.
(14) Where money belonging to a partnership is in the hands of one of the partners, and the capital of one of the latter is, to a certain extent, diminished; suit should only be brought against the partner who has possession of the money; and, after what is due to him has been deducted, all of them can bring suit for the balance which is due to each one.
(15) It is sometimes necessary to bring an action on partnership while the partnership is still in existence; as, for instance, where the latter was formed for the purpose of collecting taxes; if on account of various contracts it is to the advantage of neither partner to withdraw from the partnership, and one of them fails to place what he has collected in the common fund.
(16) Where one of the partners is married, and the partnership is dissolved during the marriage, the said married partner can take the dowry of his wife out of the partnership property, in preference to any other claim; because it should be in the hands of him who sustains the burdens of marriage. If, however, the partnership is dissolved after the marriage has ceased to exist, he should receive the dowry on the very day when it should be paid.
66. Gaius, On the Provincial Edict, Book X.
If at the time when the partnership property is divided, circumstances exist which make it certain that the dowry, or even a portion of the same, should not be given up; the judge should order it to be divided among the partners.
67. Paulus, On the Edict, Book XXXII.
Where one of the partners sells the property of the partnership with the consent of the others, the price ought to be divided, and security furnished to indemnify him for the future; and if the said partner has already suffered any loss, it must be made good to him. If, however, the purchase-money is divided without any security being given, and the partner who made the sale was compelled to pay something on account of it; can he recover from some of the partners what he has not been able to collect from the others, where all of them are not solvent? Proculus thinks that this burden should be sustained by the others, if it cannot be collected from some of them; and that this can be defended on the ground that when the partnership was formed, a community of profit as well as loss was established.
(1) Where one of several partners, who did not belong to a general partnership, lent money which belonged to all of them, and collected the interest, he should only divide the interest if he lent the money in the name of the partnership; for if he did this in his own name, since he ran the risk of losing the principal, he is entitled to retain the interest.
(2) Where a partner incurs some necessary expense with reference to the business of the partnership, he can bring an action on partnership for the interest, if he should have borrowed the money at interest. But where he used his own money for this purpose, it is held, and not without reason, that he has a right to claim the same amount of interest which he could have collected if he had lent the money to anyone else.
(3) Judgment cannot be rendered against a partner to the extent of his resources, unless he acknowledged that he is a partner.
68. Gaius, On the Provincial Edict, Book X.
No partner, even though the partnership is a general one, can alienate a larger amount than that which composes his share.
(1) The question arises whether a party is held to have committed an act to avoid making payment of the amount for which he is responsible, who disposes of his property fraudulently to avoid a future suit, or who does not make use of an opportunity for profit on this account? The better opinion is that, in this instance, the Proconsul had in mind a party who had disposed of his property, and this we can infer from the interdicts in which the sentence, "Because you have committed fraud in order to avoid being in possession," is inserted.
69. Ulpianus, On the Edict, Book XXXII.
When a partnership is formed for the purpose of making purchases, and it is agreed upon that one of the partners shall furnish the others with provisions, and shall leave the transaction of the business to them, if he does not provide them with supplies, an action on partnership, as well as one on sale, can be brought against him.
70. Paulus, On the Edict, Book XXXIII.
A perpetual partnership cannot be formed.
71. The Same, Epitomes of the Digest of Alfenus, Book III.
Two persons formed a partnership to teach grammar, and to share among themselves any profits that might be obtained from this profession. After having agreed in the articles of partnership on what they wished to be done, they then stipulated with one another as follows: "Whatever is written above must be carried out, and cannot be opposed, and if the said provisions are not complied with, then twenty thousand sesterces shall be paid." The inquiry arose whether if any of these provisions was violated, an action on partnership could be brought? The answer was that if, after their agreement had been made with reference to the partnership, they had stipulated as follows: "Do you promise that these provisions shall be observed as herein set forth?" The result would be that if the parties had done this for the purpose of changing their contract, an action on partnership would not lie, but the whole matter would be considered to have become a stipulation. But if they had not stipulated in these terms, "Do you promise that these provisions shall be observed as herein set forth?" but, as follows, "If these provisions are not observed, then ten aurei shall be paid;" it was held by him that the matter had not become a stipulation, but only what related to the penalty had been altered, because the party promising had not bound himself to do both things, that is, he would make payment and also perform the agreement, and that if he did not do so he would suffer the penalty; and therefore an action on partnership would be available.
(1) Two fellow freedmen formed a partnership for the purpose of sharing all "gains, profits, and emoluments," and afterwards one of them, having been appointed an heir by his patron, a legacy was left to the other. The answer was that neither of them was obliged to place what he received in the partnership fund.
72. Gaius, Diurnal, or Golden Matters, Book II.
One partner is liable to another on the ground of negligence, that is to say of failure to act and lack of diligence. Negligence in this instance, however, is not understood to mean want of the most exact diligence, for it is sufficient for him to employ the same diligence in the partnership affairs as he is accustomed to do in his own; because where anyone takes a partner who displays very little diligence he has only himself to blame.
73. Ulpianus, Opinions, in Answer to Maximin, Book I.
Where persons form a partnership of their entire property, that is to say of whatever property either one may subsequently acquire, an estate which falls to either of them must be placed in the common fund.
(1) He also stated to Maximin that, where persons form a partnership of their entire property in such a way that whatever is expended or gained shall be to the common profit or expense; any sums which may be expended for the children of either must be charged to both.
74. Paulus, On the Edict, Book LXII.
Where anyone has formed a partnership, and makes a purchase, it belongs to him individually, and not to the common fund, but he can be compelled by an action on partnership to make it common property.
75. Celsus, Digest, Book XV.
Where a partnership has been formed with the understanding that Titius shall have the regulation of the shares, and Titius dies before he renders a decision, the partnership is void; because the intention was that no other partnership should exist than that which is subject to the decision of Titius.
76. Proculus, Epistles, Book V.
You formed a partnership with me under the condition that Nerva, our common friend, should decide with reference to the shares thereof; and Nerva decided that you should be a partner to the extent of one-third, and I to the extent of two-thirds of the capital. You ask whether this should be ratified in accordance with the rights of the partnership, or whether we are equal partners, nevertheless? I think that it would have been better for you to have made the inquiry whether we were partners to the extent of the shares which he had established, or whether to the extent of those which would have been apportioned by a good citizen; for there are two kinds of arbiters, one whose award we should obey whether it be just or unjust, which rule must be observed when recourse is had to arbitration by common consent of the parties. There is another kind, whose award must be compared with that which would be rendered by a good citizen, although the party who is to give it has been expressly selected;
77. Paulus, Questions, Book IV.
For instance, when the intention of a lease is involved, and the decision of the lessor is required.
78. Proculus, Epistles, Book V.
I think that, in the case stated, the judgment of a good citizen should be followed, and all the more so, because a decision in an action on partnership is one where good faith is concerned.
79. Paulus, Questions, Book IV.
Wherefore, if the award of Nerva is so improper that its manifest injustice is apparent, it can be corrected by a judgment on the ground of good faith.
80. Proculus, Epistles, Book V.
What would be the result if Nerva decided that one party should be a partner to the extent of one thousand shares, and the other to the extent of two thousand shares? The decision of a good citizen could not fail to be that we are not partners to the same extent; for example, just as if one of us should bring into the partnership more labor, skill, credit, and money than the other.
81. Papinianus, Questions, Book IX.
Where a partner promised a dowry in behalf of his daughter, and, before he paid it, died, having left her his heir, and she afterwards brought an action against her husband for her dowry; she was released by a receipt from her husband. The question arose whether, if she brought an action on partnership, she ought to receive the amount of the dowry as a preferred claim, if it had been agreed between the partners that the dowry should be taken out of the common fund? I say that the contract was not an unjust one, provided that the girl had not made it merely with reference to one of the partners; for, if the agreement was reciprocal, it did not make any difference if only one of the partners had a daughter. Moreover, if the father should recover the dowry which he had given after the death of his daughter during marriage, the money ought to be returned to the partnership, for we should interpret the contract equitably in this way. If, however, the marriage should be dissolved by a divorce during the existence of the partnership, the dowry would be recovered with its accessories, so that it could again be given to another husband. But if the first husband was not able to restore the dowry, another could not be taken from the funds of the partnership, unless this had been expressly agreed upon. In the example proposed, however, it seems to be most probable that the dowry was actually paid, or at least promised. For if the daughter had received the dowry by operation of law, after she became the heir of her father, the money ought not to be placed in the partnership fund, because she would be entitled to it, even if there should be another heir. But, if she was released by a receipt from her husband, money should not be credited to the partnership which had not been paid.
82. The Same, Opinions, Book III.
One partner is not bound for the debts contracted by another, according to the law of partnership, unless the money was deposited in the common chest.
83. Paulus, Manuals, Book I.
The question arose whether, where a tree which grows on the boundary line, or a stone which extends on each side of the line of two contiguous tracts of land, will belong proportionately to the owner of each tract; or, if the tree is cut down, or the stone removed, it will remain undivided; as occurs where two masses of metal belonging to two owners are melted together the entire mass becomes the common property of both; and thus, in this instance where a tree is separated from the soil, there is all the more reason for considering it to belong to both owners, than is the case with a mass of metal; since it only forms one body composed of the same substance. It is in accordance with natural reason, however, that, after the separation of the stone or the tree, each of the two owners should have the same share of the same to which he was entitled while it remained in the earth.
84. Labeo, Abridgments by Javolenus, Book VI.
Whenever a partnership is formed by the direction of anyone, either with the son of the latter or with another person, a direct action can be brought against the one who was in view when the partnership was formed.