1.
Ulpianus, On the Edict, Book VI.
The
Praetor has proposed this Title for the purpose of preserving order,
and maintaining his dignity; and to prevent applications from being
made to him casually and indiscriminately.
(1)
With this end in view, he established three classes of persons, namely:
those whom he forbade to apply to him and all others whom he permitted
only to apply in their own behalf; and still others, whom he permitted
to apply both for certain persons and for themselves.
(2)
To apply to the court is to state one's own wish, or that of one's
friend before a magistrate who has jurisdiction, or to oppose the
wish of another.
(3)
The Praetor begins with those who are absolutely forbidden to make
an application to him, and in this portion of the Edict he has reference
to those whom he excused by reason of youth, or on account of some
accident. He forbids the party to apply to him on the ground of youth,
when he is under seventeen years of age, for the reason that he considered
this age to be too young to appear in public; although it is stated
that Nerva, the son, gave opinions publicly on questions of law at
that age, or a little later. The Praetor forbids a party to appear
before him on account of accident, for instance where he is deaf and
cannot hear at all; for no one ought to be allowed to make an application
to court who is unable to hear the decree of the Praetor, as this
would be a source of danger to him, since if he did not hear the decree,
he could be punished, as being contumacious, if he did not obey.
(4)
The Praetor states: "If the parties have no advocate I will give
them one". Not only is the Praetor accustomed to show this favor
to such persons, but also he will do so where anyone is not able to
obtain an advocate for certain reasons; as for instance, because of
the intrigues of his adversaries, or through fear.
(5)
Under the second section of the Edict those are referred to who cannot
appear for others, and in this portion of it the Praetor includes
such as are incapacitated by their sex, or by an accident, and he
also mentions persons who are branded with infamy. On the ground of
sex, he forbids women to appear for others, and the reason for this
prohibition is to prevent them from interfering in the cases of others,
contrary to what is becoming the modesty of their sex, and in order
that women may not perform duties which belong to men. The origin
of this restriction was derived from the case of a certain Carfania,
an extremely shameless woman, whose effrontery and annoyance of the
magistrate gave rise to this Edict. On account of accident, where
a Praetor rejects the application of a man who is entirely blind,
because he cannot see the insignia of the magistracy and pay them
proper respect. Labeo says that Publius, a blind man, the father of
Asprenas Nonius, had his chair turned around, and was denied a hearing
by Brutus, when he wished to make a statement before him. But although
a blind man cannot appear in court for another, he can still retain
his Senatorial dignity, and perform the duties of a judge. Can he
then, also hold the office of a magistrate? We will consider this
matter. There is an example of one who did hold such an office, for
Appius Claudius, a blind man, was present at public councils, and
gave a very severe opinion in the Senate with reference to prisoners
taken from Pyrrhus. The better opinion is for us to say that he can
hold the office of magistrate which he has already obtained, but should
be forbidden to aspire to a new one; and this rule has been established
by many examples.
(6)
He also forbids a party to appear before him in behalf of others,
who has suffered his body to be used like that of a woman. If, however,
he has been violated by robbers or by enemies, he should not be branded
with infamy, as Pomponius says. A party who has been convicted of
a capital crime cannot appear in behalf of another. It is also forbidden,
by a decree of the Senate, that a person who has been convicted in
court of false accusation, shall appear before a judge of inferior
jurisdiction. Moreover, a man who has hired himself to fight with
wild beasts is forbidden to appear. We should understand the term
"wild beasts" to rather apply to their fierceness, than
to the kind of animals; but what if the animal should be a lion, but
a tame one, or some other animal which was tame but still provided
with teeth? For this reason a man who has hired himself to fight,
is branded with infamy by that very fact, whether he fight or not;
because if he should fight, when he did not hire himself to do so,
he would not be liable but only one who has hired himself for that
purpose. Therefore, the ancient authorities hold that those are not
liable who, for the sake of showing their courage, do this without
compensation; unless they suffer themselves to be honored in the arena;
for I think that, in this instance, they cannot avoid being branded
with infamy. Where, however, anyone hires himself to hunt wild beasts,
or to fight with one that is committing damage in the neighborhood,
outside the arena, he is not to be branded with infamy; hence the
Praetor permits persons to appear in court before him in their own
behalf, who have not fought with wild beasts in order to show their
courage, but forbids them to do so for others. Nevertheless, it is
perfectly proper to permit such persons, where they are exercising
the office of guardian, or any other of the game kind, to appear in
behalf of those whose affairs they are transacting. Where anyone violates
this provision of the Edict, he is not permitted to appear for others,
but may also be punished by a pecuniary fine, whose amount is to be
arbitrarily fixed by the judge.
(7)
As we stated in the beginning of this Title, the Praetor divides parties
who cannot appear into three classes, and the third of these is one
by which he does not refuse them altogether the right of appearing,
but says that they must not appear for everybody, and they are, so
to speak, less guilty than those mentioned under former heads.
(8)
The Praetor says: "Those who are forbidden to appear by law,
plebiscite, a decree of the Senate, an edict, or an Imperial Ordinance,
unless in behalf of certain persons, cannot appear before me in court
for anyone else than persons authorized by law". All others who
are branded with infamy by the Edict of the Praetor are included in
this Edict, and cannot appear except in their own behalf, and in that
of certain specified persons.
(9)
The Praetor then adds: "Where any one of those who are mentioned
above has not been restored to his original condition". One who
is included in "those mentioned above", is understood to
mean one of those who come under the third clause of the Edict, who
are forbidden to appear in behalf of certain persons; for if they
were included under the other clauses, complete restitution would
be obtained with difficulty.
(10)
Pomponius asks what restitution the Praetor has reference to, whether
it is that granted by the Emperor, or that granted by the Senate?
And he is of the opinion that either is referred to; but the inquiry
arises as to whether the Praetor can grant restitution, and it seems
to me that such decrees of the Praetor should not be observed unless
they form part of the duties of his jurisdiction; as in the case of
youth, where anyone has been deceived, and in the other instances
which We snail examine under the Title, "Concerning Complete
Restitution". The proof of this opinion is that where anyone
is convicted of an offence involving infamy, and the sentence is annulled
by complete restitution, Pomponius thinks that he is freed from the
infamy.
(11)
The Praetor also says: "They cannot appear for anyone except
a parent, their patron, their patroness, their children, or the parents
of their patron or patroness"; with reference to which persons
we have spoken more fully under the Title: "Concerning Summons".
He also adds "Or in behalf of their children, their brother,
sister, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law,
stepfather, stepmother, stepson, stepdaughter, male or female ward,
or a person of either sex who is insane".
2.
Gaius, On the Provincial Edict, Book I.
Or
for an idiot of either sex (for curators are also appointed for
persons of this description).
3.
Ulpianus, On the Edict, Book VI.
"Where
guardianship, or curatorship, has been given over any such persons
by a parent, or by a majority of the guardians, or by a magistrate
who had jurisdiction in the matter."
(1)
When affinity is mentioned, we must not understand that which formerly
existed, but that which exists at the present time.
(2)
Pomponius says that the words, daughter-in-law, son-in-law, father-in-law,
and mother-in-law are intended to include degrees which are more remote
than those which the preposition pro generally designates.
(3)
And that, with reference to curators, he ought to have added persons
who are dumb, and others for whom it is customary to appoint curators,
that is to say, persons who are deaf, spendthrifts, and minors.
4.
Paulus, On the Edict, Book V.
Those
also, for whom, on account of ill health, the Praetor is accustomed
to appoint curators:
5.
Ulpianus, On the Edict, Book IX.
And
those, as well, who, by reason of some chronic disease, are unable
to transact their own business.
6.
The Same, On the Edict, Book VI.
I am
of the opinion that those can appear in court without violation of
the Edict, who, not voluntarily but through necessity, are discharging
the duties of an office, even if they are such as cannot appear in
their own behalf.
(1)
Where anyone is forbidden to act as an advocate, if this has reference
to the time during which the magistrate exercises jurisdiction, I
think that he can afterwards appear before his successor.
7.
Gaius, On the Provincial Edict, Book VII.
Where
the Praetor forbids any person to appear before him, the prohibition
is absolute, even if his adversary consents for this to be done.
8.
Papinianus, Questions, Book II.
The
Emperor Titus Antoninus stated in a Rescript: "That he who had
been forbidden to practice the profession of an advocate for the term
of five years, was not forbidden to appear in court in behalf of anyone
after the five years had elapsed". The Divine Hadrian also stated
in a Rescript, "That a man could appear in court after he returned
from exile"; nor was any distinction made as to the crime for
which the sentence for silence or exile was imposed; otherwise, after
the time of the punishment had elapsed, it might be still further
prolonged contrary to the terms of the sentence.
9.
The Same, Opinions, Book I.
A who
is forbidden to appear in behalf of another for a reason which does
not imply infamy, and therefore is not deprived of the right of appearing
for every one, is only legally excluded from appearing for others
in the province over which the Governor who imposed the sentence has
jurisdiction; and he is not forbidden to do so in any other, even
though it may have the same name.
10.
Paulus, Rules.
Those
who act in behalf of the Treasury are not prohibited from acting for
their children, their parents, or their wards, of whose guardianship
they have charge, even though the case may be in opposition to the
Treasury.
(1)
Decurions are also forbidden to conduct causes against their own municipal
towns, except for such persons as have been previously mentioned.
11.
Tryphoninus, Disputations, Book V.
It
was stated by our Emperor in a Rescript: "That a guardian is
not forbidden to appear for a ward in a matter in which he had been
employed as an advocate against his father". And he is also allowed
by this to act against the Treasury; even where he had appeared for
the Treasury previously in some proceedings against the father of
his ward.
(1)
Who those are that are considered infamous will be explained in the
following Title.
Tit. 2. Concerning
those who are branded with infamy.
1. Julianus, On the Edict, Book I.
The
words of the Praetor are as follows: "He who is discharged from
the army for disgraceful conduct, either by the Emperor, or by one
to whom authority has been granted to act in the matter, is branded
with infamy. This also applies to one who appears upon the stage for
the purpose of acting, or declaiming; to one who follows the occupation
of a procurer; to one who has been convicted in court of false accusation
or betrayal of his client's interest; to one who has been convicted
of theft, robbery, injury, bad faith, or fraud, in his own name, or
has compromised any of these offences; to one who has been condemned
in his own name in an action based on partnership, guardianship, mandate,
or deposit, in a direct action; to one who gave his daughter, who
was under his control in marriage after the death of his son-in-law,
he knowing him to be dead before the time had elapsed which is customary
for a widow to mourn for her husband; to one who married her, being
also aware of this, without the order of the person under whose control
he was; to him who permitted him to marry her while he was under his
control, being aware of the above mentioned facts; and also to one
who, on his own responsibility, and not by the order, or in the name
of the party under whose control he was, permits any male or female
whom he has under his control, to contract two betrothals, or two
marriages at the same time".
2.
Ulpianus, On the Edict, Book VI.
The
words of the Praetor: "Who is discharged from the army",
must be understood to refer to one who wears the military insignia,
as, for instance, where anyone up to the rank of centurion, or prefect
of a cohort, or of a troop, or of a legion, or the tribune of a cohort,
or of a legion, is discharged. Pomponius goes still further, and says
that the commander of an army, even though he may wear the badges
of consular rank, if dismissed by the Emperor for some disgraceful
cause, is branded with this mark of infamy. Therefore if a general
is discharged while in command of the army he is branded with infamy,
and where the Emperor discharges him, and adds that this is done on
account of disgraceful conduct, as he generally does, there is no
doubt that he is branded with infamy under the Edict of the Praetor.
This is not the case, however, if a successor is appointed for him
without his having incurred the displeasure of the Emperor.
(1)
By an "army" we do not mean a single cohort, or a single
troop, but several bodies of soldiers; hence we say that a man commands
an army when he has charge of a legion, or a number of legions which,
with the auxiliaries, have been entrusted to him by the Emperor. But,
in this instance, where a man has been dismissed from the command
of any body of soldiers, we must understand that he has been dismissed
from the army.
(2)
The phrase, "Discharged on account of disgraceful conduct",
is added for the reason that there are several kinds of discharges,
one of these is an honorable discharge allowed by the Emperor, where
a man has finished his time of service, or where this was done previously
through the indulgence of the Emperor; another is where a soldier
is released from military service on the ground of ill health; and
there is also dishonorable discharge. The latter occurs whenever he
who orders it adds expressly that it is done on account of disgraceful
conduct, and they ought always to add why the soldier is discharged.
But where a man is degraded, that is to say deprived of his insignia
of rank, he becomes infamous, even though the words, "degraded
on account of disgraceful conduct", were not added. There is
a fourth kind of discharge where a party enters the military service
in order to avoid performing the duties of an office, but this does
not affect his reputation, as has been very frequently stated in rescripts.
(3)
A soldier who has been convicted under the Lex Julia de Adulteriis,
becomes infamous to such a degree that the sentence itself ignominiously
releases him from his oath.
(4)
Those who have been dishonorably discharged are not allowed to live
either at Rome, or where the Emperor resides.
(5)
The Praetor says: "He who appears upon the stage is infamous".
The stage, as defined by Labeo, means any place whether public or
private, or on the street, where anyone appears or moves about making
an exhibition of himself; provided that it is a place where persons,
without distinction, are admitted for the purpose of viewing a public
show; and those who contend for gain, as well as all those who appear
upon the stage for compensation, are infamous; as Pegasus, and the
younger Nerva have stated.
3.
Gaius, On the Provincial Edict, Book I.
He
who hires himself for the purpose of appearing in public exhibitions,
and does not do so, is not branded with infamy; because the offence
is not so disgraceful a one that even the intention to commit it should
be punished.
4.
Ulpianus, On the Edict, Book VI.
Sabinus
and Cassius have given their opinion that athletes should not by any
means be regarded as exercising the profession of an actor, because
their object is to exhibit their strength; and, as a general thing,
all men agree that it seems useful, and that neither musicians nor
wrestlers, nor charioteers, nor those who wash horses, nor those who
perform other duties in the sacred games, should be considered disgraced.
(1)
Celsus holds that those who preside over the public games whom the
Greeks call brabeutas, do not practice the theatrical profession,
for the reason that they perform a public service, and do not act
as players; and indeed this place is at present granted by the Emperor
as an extraordinary favor.
(2)
The Praetor says, "Who acts as a procurer". He acts as a
procurer who profits by the prostitution of slaves; but where anyone
obtains such profit by means of persons who are free, he is in the
same category. Moreover, where he makes this his principal occupation,
or as an addition to some other business; as, for instance, where
he is an inn-keeper or a stable-keeper and has slaves of this kind
for attendance on strangers, and, by means of their opportunities
he obtains money in this manner; or if he is a bath-keeper, as is
the custom in some provinces, and has slaves for the purpose of taking
care of the clothes of customers, and these are guilty of such practices
in the baths, he is liable to the punishment of a procurer.
(3)
Pomponius is of the opinion that a slave who uses for this purpose
other slaves who are his private property, is branded with infamy
after he has obtained his freedom.
(4)
A party guilty of calumny is also branded with infamy, if judgment
is rendered against him on that account; for it is not sufficient
that he should have committed the act, and the same rule applies to
a prevaricator. A prevaricator is, so to speak, a person who is not
consistent, but who betrays his own side by assisting the other; the
name Labeo says is derived from Varia Gertatione, for whoever
prevaricates takes his position on both sides and, in fact, on the
side of his adversary.
(5)
Moreover, "Anyone who has been convicted of theft, robbery, injury,
or bad faith in his own name, or has compromised any of these offences,
in like manner, is infamous."
5.
Paulus, On the Edict, Book V.
This
is the case because a man who compromises a crime is considered as
having committed it.
6.
Ulpianus, On the Edict, Book VI.
The
term theft must be understood to mean either that which is manifest
or non-manifest.
(1)
Where a party who has been convicted of theft, or any other infamous
offence, appeals, he is not to be included among infamous persons
while the case is pending, but where the time fixed for the appeal
has elapsed, he is considered infamous from the date of his conviction;
although if his appeal appears to be ill founded, I am of the opinion
that he should be branded from that day, and not from the time of
the judgment.
(2)
Where anyone loses a case while acting for another, he does not incur
infamy; and, therefore, neither my agent, nor defender, nor guardian,
nor curator, nor heir, will be branded with infamy in an action for
theft, or any other of the same character; not even if the action
was defended by an agent from the beginning.
(3)
"Or compromised." We understand compromise to mean where
an agreement was made for a sum of money without reference to the
amount; for, otherwise, if a party, by force or entreaty induces another
not to proceed against him, he will be branded with infamy, so that
no indulgence will be considered; which is inhuman. He who compromises
for a given sum by order of the Praetor is not deemed infamous.
(4)
But where an oath has been tendered, and the party swears that he
has done no wrong, he will not be considered infamous, because he,
to a certain extent, proves his innocence by his oath.
(5)
Where anyone loses a case of mandate, he is, by the terms of the Edict,
branded with infamy; and this applies not only to him who accepted
the trust, but also to those who did not keep faith, where the other
party depended upon his doing so; as, for instance, where I have become
your surety and have made payment, if I obtain judgment against you
in an action of mandate, I render you infamous.
(6)
It should, by all means, be added that an heir sometimes has judgment
rendered against him on his own account, and therefore becomes infamous;
for instance, if he is guilty of bad faith with reference to a deposit,
or a mandate. For an heir cannot have judgment rendered against him
on his own account in cases arising out of guardianship, and partnership,
because he does not succeed a deceased person either in guardianship
or partnership, but only incurs liability for debts of the deceased.
(7)
A party who loses his case in a contrary action brought against him,
is not infamous; and not without reason, for in contrary actions there
is no question of bad faith, but only one of calculation, which is
generally decided by the court.
7.
Paulus, On the Edict, Book V.
In
actions arising out of contracts, even though they involve infamy,
and those who lose them are branded with it, still, where a party
makes an agreement he does not become infamous, and very properly,
since a compromise in cases of this kind is not disgraceful, as it
is in the preceding ones.
8.
Ulpianus, On the Edict, Book VI.
The
Praetor says "When the son-in-law is dead", and appropriately
adds, "When he knows that he was dead", to prevent his being
punished for ignorance; for, as the time of mourning is continuous,
it is fitting that it should run from the day of the husband's death,
even if his widow is ignorant of the fact; and therefore, if she learns
of it after the time fixed by law, Labeo says that she can put on
mourning, and leave it off, on the same day.
9.
Paulus, On the Edict, Book V.
Husbands
are not compelled to mourn for their wives.
(1)
There is no mourning for one betrothed.
10.
The Same, On the Edict, Book VIII.
It
is customary to obtain permission from the Emperor for a widow to
marry within the time fixed by law.
(1)
A woman can be betrothed during the time she is in mourning for her
husband.
11.
Ulpianus, On the Edict, Book VI.
Mourning
for children or parents is no impediment to marriage.
(1)
Even where the husband was such a person that it was not proper to
mourn for him, by the custom of our ancestors his widow cannot be
married until the period prescribed by law has elapsed; for the Praetor
goes back to the time during which a husband should be mourned, for
this is customary in order to prevent confusion of blood.
(2)
Pomponius thinks that where a woman has had a child within the time
fixed by law, she can marry without delay, which I hold to be correct.
(3)
It is not customary, as Neratius says, to mourn for enemies, or for
persons condemned for treason, or for those who hang, or otherwise
lay violent hands upon themselves, not from being tired of life, but
on account of bad consciences. Therefore if anyone, after the death
of a husband of this kind, marries his widow, she will be branded
with infamy.
(4)
He also is branded who marries her if he is aware of the fact; for
ignorance of the law is not excusable, but ignorance of the fact is.
He is excused who married her by the order of someone under whose
control he was, and he who permitted him to marry her is branded with
infamy. In both these instances, the rule is a very proper one, for
he who obeyed is worthy of pardon, and he who suffered him to marry
is branded with ignominy.
12.
Paulus, On the Edict, Book V.
He
who marries a woman under such circumstances, by the order of his
father, even if he retains her after he is freed from the control
of his father, is not branded with infamy.
13.
Ulpianus, On the Edict, Book VI.
What
then if he did not suffer him to marry, but ratified the marriage
after it was contracted, for instance, if in the beginning he was
ignorant that the woman came within the terms of the Edict, but ascertains
this subsequently? He will not be branded with infamy, for the Praetor
goes back to the commencement of the marriage.
(1)
Where a party contracts two betrothals in the name of another, he
will not be branded with infamy unless he contracted them in the name
of a person of either sex whom he has under his control. Where a party
suffers his son or his daughter to contract a betrothal, he is, to
a certain extent, held to have contracted it himself.
(2)
When the Praetor says, "At the same time"; it is not to
be understood that the betrothals were contracted at the same time,
but also that they existed during the same period.
(3)
Moreover, where a woman is betrothed to one man and married to another,
she is punished by the terms of the Edict.
(4)
Since it is the act which is branded with infamy, likewise, where
a man contracts marriage or betrothal with a woman whom he either
cannot lawfully marry, or with whom marriage is not right, he will
be branded with infamy.
(5)
An arbiter does not incur infamy by reason of a reference to arbitration
because his award is not in every respect equivalent to a judgment.
(6)
As to what relates to infamy, it makes a great difference where judgment
is rendered after the trial of a case in which something was stated
which was not to the purpose, for infamy is not incurred by matters
of this kind.
(7)
Where a penalty more severe than that authorized by law is imposed,
the reputation of the party is preserved. This has already been established
by rescripts and opinions; as, for instance, where a magistrate banished
a party who should have been fined a portion of his property, it must
be said that by this more severe sentence the party has compromised
for the maintenance of his reputation, and that therefore he is not
infamous. Where, however, in a case of non-manifest theft, the judge
fines the culprit fourfold the amount, the latter is, in fact, oppressed
with an increased penalty; (for in a case of nonmanifest theft he
only should be sued for double the amount) but this does not preserve
his reputation, although if he had not been oppressed with a pecuniary
penalty, he would still have been considered to have made a compromise.
(8)
Conviction for the crime of swindling imposes infamy upon the offender,
even though it may not be the subject of a criminal prosecution.
14.
Paulus, On the Edict, Book V.
Where
a master defended his slave in a noxal action, and afterwards liberated
him and made him his heir, and judgment was rendered against the slave
in the same action, he does not become infamous, for the reason that
he was not condemned on his own account, since in the beginning he
was not a party to the joinder of issue.
15.
Ulpianus, On the Edict, Book VIII.
A woman
is branded with infamy who is placed in possession of an estate in
the name of an unborn child by fraudulently representing that she
was pregnant;
16.
Paulus, On the Edict, Book VIII.
Whether
she was not actually pregnant, or whether she had conceived by another.
17.
Ulpianus, On the Edict, Book VIII.
She
also ought to be punished who deceives the Praetor, but a woman only
is branded with infamy who does this while she is her own mistress.
18.
Gaius, On the Provincial Edict, Book III.
A woman
who is herself deceived by a false impression, cannot be held to have
been fraudulently placed in possession.
19.
Ulpianus, On the Edict, Book VIII.
No
woman becomes infamous except one who has been judicially decided
"to have been placed in possession of the property through fraud".
This rule also applies to a father who permitted his daughter, while
under his control, to fraudulently be placed in possession in behalf
of her unborn child.
20.
Papinianus, Opinions, Book I.
A party
to whom the following words of a sentence of the Governor of a province
were addressed, namely: "You seem to have been the instigator
of an accusation by means of a crafty device"; is held to rather
cover him with shame than to brand him with ignominy, for he who urges
anyone does not perform the functions of a mandator.
21.
Paulus, Opinions, Book II.
Lucius
Titius brought a charge against Gaius Seius, stating that he had suffered
injury from him, and read written evidence to that effect in the presence
of the praetorian prefect. The prefect, without paying attention to
the testimony, ruled: "That Lucius Titius had not suffered any
injury at the hands of Gaius Seius". I ask whether the witnesses
whose evidence was rejected are to be considered infamous from having
given false testimony? Paulus answered that nothing was shown which
would justify that the parties concerning whom the inquiry is made
should be considered infamous, since it is not proper where a judgment,
either just or unjust, is given in favor of one party for another
to be prejudiced by it.
22.
Marcellus, Public Affairs, Book II.
Blows
with rods do not of themselves cause infamy, but the reason for which
the person deserved to suffer the punishment does, if it was of such
a nature as to render him who was convicted infamous. The same rule
also applies to other kinds of punishment.
23.
Ulpianus, On the Edict, Book VIII.
Mourning
should take place for parents and children of both sexes, as well
as for other agnates and cognates, in accordance with the dictates
of affection and the mental suffering to the extent that a person
may desire; but anyone who does not mourn for them is not branded
with infamy.
24.
The Same, On the Edict, Book VI.
The
Emperor Severus stated in a Rescript that a woman was not branded
with infamy, who had been compelled to prostitute herself for money
while in slavery.
25.
Papinianus, Questions, Book II.
It
has been settled that a son, although disinherited, should mourn for
the memory of his father; and the same rule applies to a mother whose
estate does not pass to her son.
(1)
Where anyone is killed in battle he must be mourned for, even though
his body may not be found.
Tit. 3. Concerning
agents and defenders.
1. Ulpianus, On the Edict, Book IX.
An
agent is one who transacts the business of another by the direction
of his principal.
(1)
An agent may be appointed to transact business generally, or one thing
in particular; he may also be appointed in the presence of his principal,
by a messenger, or by a letter, although some authorities (as Pomponius
states in the Twenty-Fourth Book) think that anyone who undertakes
the management of a single matter, is not an agent, just as a man
is not properly styled an agent who undertakes to carry an article,
or a letter, or a message; but the better opinion is that a party
is an agent who is appointed to attend to only one transaction.
(2)
The employment of agents is absolutely necessary, in order that those
who are either unwilling, or unable to attend to their own affairs,
may sue or be sued by means of others.
(3)
An agent can be appointed even when he is absent;
2.
Paulus, On the Edict, Book VIII.
Provided
that the person who is appointed is known, and consents to his appointment.
(1)
An insane person is not to be considered as absent, because he is
deficient in intellect, and cannot ratify his appointment.
3.
Ulpianus, On the Edict, Book IX.
An
agent can also be appointed in a case which is not yet begun, or for
future time, or under a condition, and also until a certain day.
4.
Paulus, On the Edict, Book VIII.
And
for an indefinite time.
5.
Ulpianus, On the Edict, Book VII.
A ....
is considered to be present who at the time is in his garden; ....
6.
Paulus, On the Edict, Book VI.
And
also one who is in the Forum, in the city, and where the buildings
are continuous.
7.
Ulpianus, On the Edict, Book VII.
So
that his agent is held to be present.
8.
The Same, On the Edict, Book VIII.
The
son of a family can appoint an agent for the purpose of bringing an
action, where it is one that he himself could bring, not only where
he has property of his own, but any son of a family can do so; as
for instance, having suffered an injury, he can appoint an agent to
bring an action for injury, if his father is not present and no agent
of his father desires to try the case, and where an agent is appointed
by the son of the family himself his act will be valid. Julianus carries
this still further, for he says where the son of a family has a son
who is under the control of the same person that he is, and an injury
is done to him through his son, and his grandfather is not present,
the father can appoint an agent to prosecute for the injury which
the grandson of the absent party sustained. The son of a family can
also appoint an agent for the purpose of conducting the defence of
a case in court. The daughter of a family can also appoint an agent
for the purpose of bringing an action for injury. Valerius Severus
stated, that where the daughter joins with her father in the appointment
of an agent, this is superfluous, since it is sufficient for the father
to make the appointment with the consent of his daughter. I am of
the opinion, however, that if the father should happen to be absent,
or is a man of suspicious character, (in both of which instances the
daughter has a right to sue for her dowry), she can appoint an agent.
The son of a family can also be appointed an agent for the purpose
of bringing or defending an action.
(1)
It is not customary for an agent to be appointed when he is unwilling.
We must understand the term "unwilling" to mean not only
where a party refuses, but also where he is not proved to have given
his consent.
(2)
Veteran soldiers can be appointed agents, but soldiers in active service
cannot be appointed, even if the adversary consents; unless at the
time that issue was joined this was overlooked through some accident,
except in case the soldier was appointed in a matter in which he himself
was interested; or where he appears as the representative of his company
in the prosecution or defence, in which instance his appointment as
agent is permitted.
(3)
The Praetor says: "Where an agent has been appointed to defend
a case, and, with his consent, his principal has agreed to pay the
judgment, I will compel him to conduct the trial". But he should
not be compelled to do so under certain circumstances; as, for instance,
where deadly enmity arises between the agent and the principal; as
then Julianus says an action should not be permitted against the agent.
The same rule applies where some high office has been conferred upon
the agent, or where he is absent on business for the State;
9.
Gaius, On the Provincial Edict, Book III.
Or
if he alleges bad health, or a necessary journey.
10.
Ulpianus, On the Edict, Book VIII.
Or
where he is occupied with an estate which has descended to him, or
where some other good reason exists. There is all the more reason
for the agent not to be compelled to take charge of the case, if his
principal is present.
11.
Paulus, On the Edict, Book VIII.
If,
however, the principal can be compelled to do so.
12.
Gaius, On the Provincial Edict, Book III.
It
is held that sometimes, even under these circumstances, an agent can
be compelled to take charge of the case; as, for instance, where the
principal is not present, and the plaintiff states that by further
delay the property involved will be lost.
13.
Ulpianus, On the Edict, Book VIII.
All
these things should not indiscriminately be admitted or rejected,
but should be settled by the Praetor after he has ascertained the
facts.
14.
Paulus, On the Edict, Book VIII.
If,
after an agent has been appointed, deadly enmity arises between him
and his principal, he cannot be compelled to take charge of the case,
nor is a stipulation entered into to defend a case violated, as the
conditions are different.
15.
Ulpianus, On the Edict, Book VIII.
If
the principal should die before issue is joined, and after a stipulation
has been made by him that the judgment will be paid by the agent,
the latter can be compelled to take charge of the case, provided,
however, the principal entered into it with the knowledge of the agent;
because, otherwise, it would be contrary to the rules of law for the
agent to be bound for an act of which he had no knowledge; an action
can, however, be brought under the terms of the stipulation because
the suit was not defended.
(1)
Where an agent is appointed for conducting a case for the partition
of property, he is also held to be appointed for the purpose of defence,
and a double bond must be furnished.
16.
Paulus, On the Edict, Book VIII.
Before
issue is joined, the principal has full power either to change the
agent, or to take charge of the case himself.
17.
Ulpianus, On the Edict, Book IX.
After
issue has been joined, if the defendant has appointed an agent, he
can either change him, or transfer the conduct of the case to himself,
while the agent is still living, or residing in the city; but cause
for this must first be shown.
(1)
This is permitted, not only to the party who appointed the agent,
but also to his heir and other successors.
(2)
In making an investigation for cause, not only the matters that we
mentioned above which do not compel an agent to take charge of a case,
must be considered, but also his age;
18.
Modestinus, Pandects, Book X.
Or
any privilege of a religious character.
19.
Ulpianus, On the Edict, Book IX.
If
the agent is a suspicious person, or in prison, or in the power of
the enemy, or of robbers:
20.
Paulus, On the Edict, Book VIII.
Or
if he is prevented by a criminal or a civil action, by ill health,
or by important affairs of his own;
21.
Gaius, On the Provincial Edict, Book III.
Or
if he has been banished, or is concealed, or subsequently becomes
the enemy of the principal;
22.
Paulus, On the Edict, Book VIII.
Or
if he is connected with his adversary by marriage, or becomes his
heir;
23.
Ulpianus, On the Edict, Book IX.
Or
if a long journey, or some other similar matters prevent him;
24.
Paulus, On the Edict, Book VIII.
Under
such circumstances the agent ought to be changed, even at his own
request.
25.
Ulpianus, On the Edict, Book IX.
All
these things should be observed, not only on the part of the defendant,
but also with respect to the plaintiff. If the adverse party, or the
agent himself, alleges that the principal is lying, this must be settled
by the Praetor; for he is not to be tolerated as an agent who asserts
his own right to be one, for he becomes liable to suspicion, by the
fact that he is forcing his service upon an unwilling principal; unless,
perhaps, he undertook the agency rather to justify himself than to
merely carry it on, and he should be heard if he alleges: "That
he is willing to surrender the agency if this can be done without
injury to his reputation". Moreover, he must be heard if he attempts
to clear his character. If he states plainly that he was appointed
agent in a matter in which he himself was interested, and proves this,
he ought not to be deprived of the right of instituting proceedings
in his own behalf. Again, if an agent desires to make use of some
reservation, it will not be easy to deprive him of the right of action;
26.
Paulus, On the Edict, Book VIII.
Unless
the principal is ready to pay him.
27.
Ulpianus, On the Edict, Book IX.
In
the trial of the action, care must be taken not to permit the agent
to be deprived of the conduct of the case, unless, the party is ready
to deprive him of the whole of it; for if he wishes to take away only
a portion and leave the remainder, the agent can justly refuse to
accept this arrangement. This happens where an agent acts under the
direction of a principal, but where no direction is given, and nothing
is proposed in court, and you have not approved acts performed without
your consent, they do not prejudice you; and therefore the transfer
of the case to yourself is not necessary lest you may be oppressed
by the acts of another party. Application for the change of an agent
must be made before the Praetor.
(1)
When a transfer of the case is made on the part of the plaintiff,
we hold that a stipulation made by the defendant that he will comply
with the judgment, is valid; and this opinion is adopted by Neratius
and Julianus, and we still make use of this rule, provided the principal
has accepted the security. But where the agent has accepted it, and
the conduct of the case has been transferred to the principal, it
is the better opinion that it is valid, and that the right of action
under the stipulation is transferred from the agent to the principal.
But where it is transferred from the principal, or from the agent
to another agent, Marcellus has no doubt that the stipulation is valid;
and this is the better opinion, and even though the right of action
under the stipulation may have vested in the agent, still, an action
on the same should be granted the principal, the direct right of action
having been extinguished.
28.
The Same, Disputations, Book I.
Where
my agent has accepted a bond for compliance with the judgment, I am
entitled to an equitable action on the stipulation, just as one to.
enforce judgment is given me. If my agent, by virtue of that stipulation,
has brought suit without by consent, nevertheless, a right of action
on the stipulation is granted me; hence it follows that my agent can
be barred by an exception for bringing suit on the stipulation in
the same way that he can when he brings suit on the judgment, where
he has not been appointed in a matter in which he is himself interested,
or empowered as agent for that very purpose. On the other hand, however,
if my agent has given security to comply with the judgment, no action
on the stipulation will be granted against me. If the party charged
with my defence gives security, an action on the stipulation is not
granted against me, because suit cannot be brought against me on the
judgment.
29.
The Same, On the Edict, Book IX.
If
the plaintiff prefers to bring suit against the principal rather than
against the person who is appointed agent in his own behalf, it must
be said that he can do so.
30.
Paulus, Sentences, Book I.
The
agent of a plaintiff who has not been appointed in his own behalf,
may ask that the expenses which he has incurred during the trial be
paid out of the judgment, if the principal in the action is not solvent.
31.
Ulpianus, On the Edict, Book IX.
Where
anyone who has lost a case in which he appeared as agent becomes the
heir of the principal, he cannot lawfully deny his liability on the
judgment; and this happens where he is the heir to the entire estate.
If, however, he becomes heir to only a share of the estate, and pays
the entire amount, provided he was directed to pay it all, he would
be entitled to an action of mandate against his co-heir; but if he
was not directed to do so, a right of action on business transacted
is granted him. This rule also applies if the agent pays and should
not become an heir.
(1)
It is not forbidden to appoint several agents in a case where several
parties are interested.
(2)
Julianus says that where a party has appointed two agents at different
times, he is considered to have rescinded the appointment of the first
by the appointment of the second.
32.
Paulus, On the Edict, Book VIII.
Where
several agents have been appointed at the same time for one purpose,
he who acts first takes precedence; so that he who comes after cannot
act as agent in a case which the former one has brought.
33.
Ulpianus, On the Edict, Book IX.
It
is said that a slave and the son of a family can both have an agent,
and, so far as this applies to the son of a family it is correct;
but, with respect to the slave, we dispute it. We admit, however,
that a party can transact business relating to the peculium
of a slave, and, in this instance, act as his agent; which opinion
is also held by Labeo, but he is forbidden to bring suit.
(1)
There is no doubt that he can have an agent to bring suit to establish
his condition, not only for the administration of his property, but
also to conduct actions either for or against him, whether they involve
his possession as a slave, or his status as a freeman. On the other
hand, it is clear that he can be appointed an agent.
(2)
It is for the public welfare that absent persons should be defended
by someone, and defences are also granted in capital cases. Therefore,
whenever a party can be condemned while absent, it is but just that
someone should be heard who will maintain his innocence, and speak
in his favor; and this is customary, as appears from a Rescript of
our Emperor.
(3)
The Praetor says, "Where anyone asks that he be granted the right
to bring an action in the name of another, he must defend him in accordance
with the judgment of a good citizen, and he must furnish security
to the person against whom he brings suit in the name of another that
the party interested will ratify his acts".
(4)
It is held by the Praetor to be only just that he who acts as agent
in behalf of another, should also undertake the same party's defence.
(5)
Where anyone appears as agent in a matter in which he is interested,
it is still the rule that he should defend his principal, unless where
the latter was compelled to appoint him.
34.
Gaius, On the Provincial Edict, Book III.
Where
anyone brings suit as agent in his own behalf, as, for instance, as
the purchaser of an estate; ought he, on the other hand, to defend
the vendor? It has been established that if the business was transacted
in good faith, and not to defraud those who might wish to bring suit
against the vendor, he will not be obliged to defend him.
35.
Ulpianus, On the Edict, Book IX.
However,
the following persons acting as agents will be obliged to defend their
principals, being such as are permitted to bring suit without a mandate,
that is to say, children, provided they are under the control of others;
parents, brothers, parties connected by affinity; and freedmen.
(1)
A patron can, by means of an agent, accuse his freedman of being ungrateful,
and the freedman can answer by an agent.
(2)
Not only if the action is asked for by the agent, but also where he
applies for a preliminary inquiry, or an interdict; or where he wishes
to give security by a stipulation for the payment of legacies, or
for the prevention of threatened injury; he will be obliged to defend
his principal, while absent, in a competent court and in the same
province. It would be a hardship, however, to be compelled to leave
Rome and go into a province, or vice versa, or to go from one
province to another, for the purpose of defending him.
(3)
The term "defend" means to do whatever the principal would
do in the conduct of a case, and to furnish proper security; and a
harder condition should not be imposed upon an agent than upon his
principal, except in giving security. With the exception of the security,
an agent is held to undertake the defence when he assumes charge of
the case. For which reason the question was asked by Julianus whether
he can be compelled to do so, or whether it is sufficient, where no
defence is offered, for an action to be brought on the stipulation;
and Julianus says in the Third Book of the Digest, that he should
be compelled to undertake the conduct of the case, unless he shows
proper cause for refusing to act, or where he ought to be removed
for some good reason. An agent also defends who permits what his principal
would allow.
(4)
An agent is held to conduct the defence even when he suffers the adverse
party to take possession, where the latter demands security for the
prevention of threatened injury, or for the payment of legacies,
36.
Paulus, On the Edict, Book VIII.
Or
where the notice of a new structure is given. If he permits a slave
to be removed in a noxal case he is held to defend him provided, however,
that in all these instances he furnishes security that his principal
will ratify his acts.
37.
Ulpianus, On the Edict, Book IX.
An
agent must defend his principal in all kinds of actions, even in such
as are not granted against an heir.
(1)
The question arose, where an adversary brought several actions, and
there were several defenders who were prepared to undertake the defence
of the same, whether a party who is absent is held to be defended?
Julianus says that he appears to be properly defended, and Pomponius
states that this is now the practice.
38.
The Same, On the Edict, Book XL.
However,
we should not go to the extent of holding that if suit is brought
for ten thousand aurei, and two defenders should appear ready
to defend for five thousand each, they shall be heard.
39.
The Same, On the Edict, Book IX.
An
agent should defend his principal not only in actions, interdicts,
and stipulations, but also with reference to interrogatories; so that,
if he is interrogated in court, he may answer in every instance in
which his principal could do so. Therefore, if he is asked whether
the heir is absent, he must answer; and whether he answers or keeps
silent, he will be liable.
(1)
He who brings any kind of an action in behalf of another must furnish
security that his principal in the case will ratify whatever is done.
Sometimes, however, although the agent brings suit in his own name,
he must still give security, that his acts will be ratified, as Pomponius
states in the Twenty-Fourth Book; for instance, where the other party
tendered an oath to the agent, and he swore that something was due
to the principal; and, in this case, he acts in his own name on account
of his oath, for this action could not be brought by the principal;
nevertheless, the agent will be obliged to give security that it will
be ratified. But where an agreement for something was made with the
agent, and he brings suit on this ground, there is no doubt that there
is good reason for requiring security for ratification; and this Pomponius
stated to be the fact.
(2)
Julianus raises the question as to whether the agent is obliged to
give security that his principal alone will ratify his acts, or that
the other creditors will likewise do so; and he says that security
must only be given with reference to the principal; for in the words,
"the party interested in the matter", the creditors are
not included; for an undertaking of this kind is not required of the
principal himself.
(3)
Where a father brings an action for the dowry of his daughter, he
must give security that his daughter will ratify his act, and he must
also defend her; as Marcellus stated.
(4)
Where a father brings a suit for injury in the name of his son, as
there may be two actions, one brought by the father, and one by the
son, no bond for ratification is required.
(5)
Where an agent contests the condition of anyone, whether the latter
institutes proceedings against him as a slave, in order to obtain
his freedom, or whether the agent brings suit to reduce to slavery
a person who claims to be free, he must furnish security that his
principal will ratify his act; and this is set forth in the Edict,
so that, in either instance, he is considered as plaintiff.
(6)
There is a case in which a party is obliged to give security for ratification
as well as for compliance with the judgment in the same action; as,
for instance, when application is made for complete restitution, where
a minor is said to have been cheated in a sale, and the agent appears
for the other party. In this case the agent must give security that
his principal will ratify his act; as, otherwise, the principal, having
returned, might wish to make some demands. Again, he must give security
that he will comply with the judgment, so that if anything must be
given to the minor on account of this restitution, it may be done.
These things Pomponius mentioned in the Twenty-Fifth Book on the Edict.
{7)
He also says that where a guardian is accused on account of being
suspected, his defender must furnish security for ratification, far
fear that the principal may return and attempt to set aside what has
been done. It is not an easy matter to have anyone who is suspected
accused by an agent, as the case involves reputation; unless it is
clear that the agent has been specially appointed by a guardian; or,
if the latter is absent, the Praetor is about to hear the case as
if it was not defended.
40.
The Same, On the Edict, Book IX.
Pomponius
says that all kinds of actions cannot be brought by an agent. Hence,
he states that an interdict cannot be applied for to remove children
who are said to be under the control of some person who is absent,
unless, as Julianus holds, proper cause is shown; that is to say,
if he has been expressly directed to do this; and the father is prevented
by ill health, or for some other good reason.
(1)
Where an agent demands security for the prevention of threatened injury,
or for the payment of legacies, he must himself give a bond for ratification.
(2)
Also he who is acting as defender, and against whom a real action
is brought, must, in addition to the ordinary security to comply with
the judgment, also execute an undertaking for ratification; for, indeed,
if the party whose defender appears comes forward and claims •the
land after it had been declared to be mine by the judgment, will it
not seem that he had not ratified it? In fact, if there had been a
general agent, or the party himself had conducted his own case, and
been defeated, and then brought suit against me to recover the property;
would he be barred by an exception on the ground of res judicata?"
This Julianus stated in the Twentieth Book of the Digest, for when
property was decided to be mine, it was decided the same time that
it was not his.
(3)
A bond for ratification is also required from an agent before issue
is joined, since, after this has been done, he cannot be compelled
to furnish it.
(4)
With regard to those persons of whom we do not require a mandate,
it must be held that if it is evident that they are bringing suit
against the wishes of those for whom they appear, their applications
should be rejected. Therefore, we do not require them to prove that
they have consent, or a mandate, but merely that they are not acting
against the will of their principal, even though they may offer a
bond for ratification.
41.
Paulus, On the Edict, Book IX.
Women
are permitted to bring suit for their parents where proper cause is
shown; for example, if their parents are prevented by disease, or
by old age, and have no one to represent them.
42.
The Same, On the Edict, Book VIII.
Although
an agent cannot be appointed in a popular action, nevertheless, it
is very properly stated that where a party brings suit with reference
to a public right-of-way, and would sustain some private loss by being
prevented from doing so; he can appoint an agent, as he could in a
private action. With much more reason can an agent be appointed to
bring suit for the violation of a tomb by a party interested.
(1)
An agent can be appointed under the Lex Cornelia, in an action
for injury; for, although the action is employed for the public welfare,
it is nevertheless of a private nature.
(2)
The obligation which usually exists between principal and agent gives
rise to an action of mandate; sometimes, however, an obligation based
upon mandate is not contracted; which occurs when we appoint an agent
in his own behalf, and promise, under the circumstances, to comply
with the judgment; for if we pay anything on account of the promise,
we cannot bring suit on mandate, but on the ground of sale, if we
have sold an estate; or on account of some former mandate, as is done
when a surety appoints the principal debtor his agent.
(3)
He to whom an estate has been restored under the Trebellian Decree
of the Senate, can legally appoint the heir his agent.
(4)
Likewise, the creditor in the Servian Action can legally appoint the
owner of the property pledged his agent.
(5)
Moreover, if a party makes an agreement, concerning a preexisting
debt, with one of the several joint creditors, and appoints another
of them to bring suit on the agreement, his right to do so cannot
be denied. And where there are two joint debtors, one of them can
appoint the other to defend him.
(6)
Where there are several heirs, and a suit is brought for the partition
of the estate, or one for the division of common property; it is not
permissible for the same agent to be appointed by several principals,
since the matter cannot be settled without adjudications and condemnations.
But it is certain that it will be permitted where there are several
heirs of one co-heir.
(7)
Where a debtor remains concealed after issue has been joined, his
sureties are not held to legally defend him, unless one of them defends
him for the entire amount involved; or all, or several of them appoint
one of their number to whom the management of the case shall be entrusted.
43.
The Same, On the Edict, Book IX.
A person
who is dumb and deaf is not forbidden to appoint an agent in any way
in which he can do so; and persons of this description may also be
appointed themselves; not, however, for the purpose of bringing suit,
but for the transaction of business.
(1)
When the question is asked if a certain individual can have an agent,
it must be considered whether or not he is forbidden to appoint one,
for this Edict is prohibitory.
(2)
In popular actions, where a party acts as one of the people, he cannot
be compelled to conduct the defence as an agent.
(3)
Where anyone applies for the appointment of a curator for a party
who is present, the latter must consent, unless he is of age; and
if he is absent, the agent must be required to furnish security for
ratification.
(4)
The penalty to which an agent who does not defend his principal is
liable is that the right of action shall be denied him.
(5)
Where an agent brings suit, and a slave of the principal who is absent
is present; Atilicinus says that security must be given to the slave,
and not to the agent.
(6)
Where a party is not compelled to defend someone who is absent, still,
if he has furnished security that the judgment shall be complied with,
on account of his having undertaken the defence, he can be forced
to proceed; for if he does not, he who accepted the security will
be deceived; as those who are not compelled to defend a case are required
to do so after security has been furnished. Labeo thinks that indulgence
should be granted where proper cause is shown, and if injury results
to the plaintiff on account of lapse of time, the other party should
be compelled to conduct the case; but if, in the meantime, some relationship
by marriage has been destroyed, or enmity has arisen between the parties,
or the property of the person who is absent has been taken possession
of;
44.
Ulpianus, Disputations, Book VII.
Or
if he is about to depart on a long journey, or any other good reason
should be advanced;
45.
Paulus, On the Edict, Book IX.
He
should not be compelled. Sabinus, however, thinks that it is not one
of the functions of the Praetor to compel one party to defend another,
but that suit can be brought under the stipulation, because the action
was not defended; and if the agent has good reason for refusing to
act in the case, his sureties will not be liable, because an arbitrator
would not be a good man if he forced a party who had a valid excuse
to undertake a defence. If he did not give security, but reliance
was placed upon his promise, the same rule should be observed.
(1)
Parties who act on behalf of the public, and who at the same time,
defend matters in which they are personally interested, are permitted
to appoint an agent upon showing proper cause; and anyone who brings
suit afterwards will be barred by an exception.
(2)
Where notice of a new structure has been given to an agent, and he
avails himself of the interdict which provides: "that no force
is to be used against the party who builds"; Julianus holds that
he occupies the place of a defender, and cannot be compelled to furnish
security that his principal will ratify his acts; and if he does furnish
security, (Julianus says), "I do not understand under what circumstances
suit can be brought on the stipulation".
46.
Gaius, On the Provincial Edict, Book III.
Where
a party has undertaken the management of a case in his own name, and
desires to appoint an agent whom the plaintiff can accept in his stead,
he should be heard, if he gives security in the regular form that
the judgment will be complied with.
(1)
He who defends another in whose behalf he does not bring suit, has
a right to conduct the defence with reference to one particular point.
(2)
He who defends another is compelled to give security; for no one is
understood to act as a proper defender in a suit with another party
without giving security.
(3)
It is also asked where a defender agrees to conduct a case, and the
plaintiff obtains complete restitution, whether he can be compelled
to take charge of the action for restitution? The better opinion is
that he can be compelled to do so.
(4)
An agent is required to render an account in good faith in matters
connected with litigation, just as he is required to do in other business
transactions. Therefore, whenever he obtains anything in a suit, whether
he does so directly on account of the claim, or indirectly by means
of it, he must surrender it in an action of mandate; so that if, by
mistake, or through the erroneous decision of the judge, he obtains
something that was not due, still, he must surrender it also.
(5)
Again, on the other hand, whatever the agent pays on account of a
judgment, he can recover by a counter action of mandate. He cannot,
however, recover any penalty which he paid because of some unlawful
act of his own.
(6)
Equity demands that any expenses of the suit incurred in good faith
by either the agent of the plaintiff, or by that of the defendant,
shall be repaid to him.
(7)
Where the transaction of business has been entrusted to two parties
by the direction of another, and one of whom is a debtor of the person
who appointed them, can the other legally bring suit against him?
There is no doubt that he can, for he is none the less understood
to be an agent, because the party against whom he brings suit is an
agent also.
47.
Julianus, On Urseius Ferox.
Where
a man leaves two agents to attend to all his business, unless he expressly
states that one is to bring suit against the other for money, it cannot
be maintained that such a mandate was given to either of them.
48.
Gaius, On the Provincial Edict, Book III.
Therefore,
where such an express mandate was given, if one of them who is sued
by the other alleges against the action: "that no direction was
given to me to bring suit against debtors"; the plaintiff can
reply: "or was given to me to bring suit against you".
49.
Paulus, On the Edict, Book LIV.
The
condition of the principal cannot be rendered worse by his agent without
his knowledge.
50.
Gaius, On the Provincial Edict, Book XXII.
In
whatever way your agent may be discharged from liability by me, it
should benefit you.
51.
Ulpianus, On the Edict, Book LX.
If
a minor under twenty-five years of age appears as a defender, he is
not the proper one in any case in which he is entitled to complete
restitution; because a decree of this kind releases both him and his
sureties.
(1)
As to undertake a defence subjects a party to the same liability as
the principal debtor, the defender of a husband should not be made
liable for anything more than the husband himself can pay.
(2)
Where a man who has undertaken the defence of another, even though
he may be of large means;
52.
Paulus, On the Edict, Book LVII.
Or
of consular rank;
53.
Ulpianus, On the Edict, Book LX.
He
is not held to properly defend him unless he is ready to furnish security.
54.
Paulus, On the Edict, Book L.
Neither
a woman; nor a soldier; nor a person about to be absent on business
for the State; nor one who is afflicted with a chronic disease; nor.one
about to assume the duties of a magistrate; nor one who cannot be
compelled against his will to be a party to judicial proceedings,
is understood to be a proper defender.
(1)
Guardians who have transacted the business of their office in any
place must also be defended in that place.
55.
Ulpianus, On the Edict, Book LXV.
Where
a man has been appointed agent in a matter in which he is interested,
his principal is not to be preferred in bringing the suit, or in collecting
money; since he who has a right of action in his own behalf can properly
attend to these matters.
56.
The Same, On the Edict, Book LXVI.
An
agent appointed for the purpose of bringing an action for the recovery
of personal property can properly apply for its production in court.
57.
The Same, On the Edict, Book LXXIV.
He
who appoints an agent for the purpose of instituting proceedings immediately
should be understood to permit the agent to conduct the case to a
conclusion afterwards.
(1)
Where a party neglects to offer an exception to an agent, he cannot
introduce it subsequently, if he changes his mind.
58.
Paulus, On the Edict, Book LXXI.
An
agent to whom has been committed, in general terms, the free transaction
of business, can collect what is due, and can also exchange one piece
of property for another.
59.
The Same, On Plautius, Book X.
He
is also held to have been directed to pay creditors.
60.
The Same, Opinions, Book IV.
The
power to compromise for the purpose of settlement is not included
in a general mandate; and therefore if the party who gave the mandate
does not afterwards ratify the compromise, he will not be prevented
from making use of his original right of action.
61.
The Same, On Plautius, Book I.
Plautius
says that it is the opinion of everyone that an agent who has had
judgment rendered against him cannot himself be sued; unless he was
appointed in a matter in which he was interested, or offered himself
for the place when he knew no bond had been furnished. The same rule
must be observed where he himself offered to undertake the defence
in the case, and give security.
62.
Pomponius, On Plautius, Book II.
Where
an agent is appointed for the collection of a legacy, and makes use
of an interdict against the heir for the production of the will, an
exception against the agent on the ground that he is not authorized
to do this by the mandate, cannot be pleaded against him.
63.
Modestinus, Differences, Book VI.
An
agent appointed for the purpose of transacting the affairs of his
principal, in general cannot alienate either the real or the personal
property of his principal, nor his slave, without an express mandate
to that effect; with the exception of fruits, or other things which
may be easily spoiled.
64.
The Same, Rules, Book III.
If
he in whose behalf the defender appears should himself come into court
before issue is joined, and ask permission to conduct the case in
his own name, he ought to be heard, if proper cause be shown.
65.
The Same, On Inventions.
Where
a principal desires to relieve his agent, who is absent, from the
necessity of giving security, he should send a letter to his adversary,
and state therein that he has appointed a certain party to act against
him, (mentioning in what case,) and promise that he will ratify all
the acts performed by said agent; and, in this instance, if the letter
is approved, it is understood that the party referred to appears as
the agent of the principals as if he were present. Therefore, if afterwards,
having changed his mind, he is not willing that the party should act
as his agent, the proceedings, nevertheless, shall be considered valid.
66.
Papinianus, Questions, Book IX.
Where
a person stipulates for "Stichus or Damas, whichever he may choose,"
and Titius brings suit, as agent, to recover one of them, and his
principal ratifies his act; the result is that the matter is held
to be brought under the jurisdiction of the court, and annuls the
stipulation.
67.
The Same, Opinions, Book II.
Where
an agent pledges his own faith for the title of lands which he sold,
he will not be released from liability from his obligation by the
aid of the Praetor even after he has ceased to act as agent; for an
agent who assumes the bond of an obligation for his principal cannot
refuse to support his burden.
68.
The Same, Opinions, Book III.
Where
an agent made an agreement with respect to property belonging to his
principal, which was not contrary to the terms of his mandate, the
principal can then bring suit, even if his agent is unwilling.
69.
Paulus, Opinions, Book III.
Paulus
held that a party who appointed an agent to defend a case is not forbidden
to appear in the same in his own behalf.
70.
Scaevola, Opinions, Book I.
A father
appointed Sempronius, one of his creditors, the guardian of his son;
and he, having administered the guardianship appointed his brother
his heir, who himself died, and left the debt owed by his father in
trust to Titius, and the rights of action were assigned to him by
the heirs. The action of guardianship as well as that for money loaned
being both derived from the estate of Sempronius, I ask whether the
right of action on mandate is only granted him if he defends the heirs
by whom the rights of action were assigned to him? I answered that
he should defend them.
71.
Paulus, Sentences, Book I.
An
absent defendant can state the cause of his absence by means of an
agent.
72.
The Same, Manuals, Book I.
We
do not always acquire a right of action by an agent, but we retain
one that is already acquired; as, for instance, where suit is brought
within the time prescribed by law; or where notice of objection to
some new structure is served; so that we can make use of the Interdict
Quod vi aut clam for here our former right is reserved for
us.
73.
The Same, On the Office of Assessors.
Where
the defendant is ready to pay the money demanded, before issue is
joined, suit having been brought by an agent, what must be done? It
would be unjust for him to be compelled to join issue, and be regarded
as a suspected person, because he did not tender the money when the
principal was present. But if, at that time, he did not have the money,
ought he be compelled to proceed with the case? What if the action
was one in which infamy was involved? It, however, is settled that,
before issue has been joined, the judge may order the money to be
deposited in some sacred building, as is done in the case of money
belonging to wards. Where issue has been joined, however, the whole
matter devolves upon the judge for settlement.
74.
Ulpianus, Opinions, Book IV.
An
official who acts for a city cannot transact public business through
an agent.
75.
Julianus, Digest, Book III.
A party
who defended an absent purchaser of land, who was also in possession,
and who took charge of the case in his name, requested the vendor
to undertake the defence, and the vendor demanded that the agent give
security that the purchaser would ratify his acts. I am of the opinion
that he ought to give security to the vendor for ratification; because
if the latter should restore the land to the plaintiff, nothing would
prevent the principal from bringing suit for the same, and the vendor
would be compelled to defend the action a second time.
76.
The Same, On Minicius, Book V.
Titius,
while he was defending a case for an absent party, gave security,
and before issue was joined, the debtor became insolvent; for which
reason the defender refused to permit issue to be joined as against
himself. I ask whether he should be permitted to do this? Julianus
answers that the defender should be held to occupy the place of the
principal, when he gave security; and if the Praetor did not compel
him to accept joinder of issue, it would not be of much benefit to
him, as recourse could be had to the sureties, and whatever these
paid could be recovered from the defender.
77.
Paulus, On the Edict, Book LVII.
When
one person is defended by another it should be done in accordance
with the judgment of a good citizen.
78.
Africanus, Questions, Book VI.
Therefore,
he cannot be considered to properly defend an action in accordance
with the judgment of a good citizen, who, by thwarting the plaintiff,
prevents the matter in controversy from being brought to a conclusion.
(1)
Where an agent is appointed to bring suit for two things, and he does
so for only one, he will not be barred by an exception, and has brought
the case into court properly.
Tit. 4. How proceedings
are instituted for, or against corporations.
1. Gaius, On the Provincial Edict, Book III.
All
persons are not permitted indiscriminately to form corporations, associations,
or similar bodies, for this is regulated by laws, Decrees of the Senate,
and constitutions of the Emperors. Associations of this description
are authorized, in very few instances; as, for example, the right
to form corporations is permitted to those engaged as partners in
the collection of public taxes, or associated together in working
gold, silver, and salt mines. There are also certain guilds at Rome
whose organization has been confirmed by Decrees of the Senate, and
Edicts of the Emperors; as, for instance, those of bakers, and some
others, as well as that of ship-owners, which also exists in the provinces.
(1)
When persons are allowed to form associations under the title of a
corporation, guild, or any other body of this kind, they are, like
a municipality, entitled to have common property, a common treasure
chest, and an agent or a syndic, and, as in the case of a municipality,
whatever is transacted and done by him is considered to be transacted
and done by all.
(2)
Where an association has no one to defend it, the Proconsul says that
he will order its common property to be taken into possession, and
if, having been warned, they do not take measures to defend themselves,
he will order the property to be sold. We understand that an association
has no agent, or syndic, when he is absent, or prevented by illness,
or is otherwise incapable of transacting business.
(3)
Where a stranger appears to defend a society, the Proconsul permits
him to do so, as happens in the case of the defence of private persons;
because in this way the condition of the society is improved.
2.
Ulpianus, On the Edict, Book VIII.
Where
the members of a municipality, or of any association, appoint an agent
to attend to their legal business, it must not be said that he shall
be considered to have been appointed by several individuals, for he
appears for the entire community, or association, and not for the
members separately.
3.
The Same, On the Edict, Book IX.
No
one is allowed to institute proceedings in the name of a city or a
curia except he who is authorized to do so by law; or, where
there is no law, he is authorized by a vote of the members, when two-thirds,
or more then two-thirds of them are present.
4.
Paulus, On the Edict, Book IX.
It
is evident that, in order to make up the two-thirds of the decurions,
the person appointed may be included.
5.
Ulpianus, On the Edict, Book VIII.
It
must be noted, as Pomponius says, that the vote of a father will be
accepted for the benefit of his son and, that of a son for the benefit
of his father.
6.
Paulus, On the Edict, Book IX.
The
votes of those who are under the same control shall be counted in
like manner; for each party casts his vote as a decurion, and not
as a person belonging to the household. The same rule is to be observed
where votes are cast for the candidate for an office; unless some
municipal law, or long established custom forbids it.
(1)
If the decurions have decided that legal proceedings shall be instituted
by the party selected by the duumvirs, he is considered to
have been elected by the entire body, and therefore he can proceed;
for it makes but little difference whether the body itself chose him,
or someone who had authority to do so. But if they have decided that
whenever a controversy arises, Titius should have authority to bring
suit with reference to it; the resolution would be of no effect, because
it cannot be held that the right to bring suit is conferred with reference
to a matter which is not yet in controversy. At the present time,
however, it is usual for all matters of this kind to be attended to
by syndics, according to the custom of the various localities.
(2)
Where an agent is appointed, can he afterwards be prevented from acting
by a resolution of the decurions? Will he be barred by an exception?
It is my opinion that it should be understood that he is only allowed
to act so long as his permission lasts.
(3)
Where the agent of a corporate body brings suit, he is also compelled
to defend it when it is sued; but he is not required to give security
for ratification. Sometimes, however, where doubt exists concerning
the resolution which conferred authority upon him, I think that security
for ratification should be furnished; therefore a syndic of this kind
performs the functions of an ordinary agent, and a right of action
for the execution of judgment is not conferred upon him by any edict,
unless he was appointed with reference to a matter in which he was
interested, and he can also accept a promise to pay. The power of
a syndic can also be revoked for the same reason as that of an ordinary
agent. The son of a family may be appointed a syndic.
7.
Ulpianus, On the Edict, Book X.
As
the Praetor grants a right of action in behalf of a municipal corporation,
so also he thought that it is perfectly just that the Edict should
give a right of action against it. I am of the opinion, however, that
a right of action is granted to a Deputy against a municipality where
he has incurred expense in some matter of public business.
(1)
Where anything is owing to a corporation, it is not due to the individual
members of the same, nor do the latter owe what the entire association
does.
(2)
In matters which have reference to the body of decurions, or to other
associations, is a matter of no consequence whether all the members
remain in it, or only a portion, or whether they are all changed;
but where the entire body is reduced to a single member, the better
opinion is that he can sue, and be sued, since the right of all is
merged in one, and the name of association remains.
8.
Javolenus, On Cassius, Book XV.
Where
a municipal corporation is not defended by those who have charge of
its affairs, and no common property exists of which possession may
be obtained, payment must be made to those who bring suit for debts
owing to the corporation.
9.
Pomponius, On Sabinus, Book XIII.
If
you have an interest in an estate in common with a municipality, a
right of action can be brought by both of you for a division of the
property. The same thing may be stated with reference to an action
for the establishment of boundaries, and for the prevention of the
flow of rain-water upon your premises.
10.
Paulus, Manuals, Book I.
A syndic
can also be appointed in the case of notice of a new structure, and
for the purpose of entering into stipulations; as for instance, in
case of legacies, the prevention of threatened injury, or for the
enforcement of a decree; although it is preferable for security to
be given to a slave of the municipality, still, if it is given to
the syndic, the party who has charge of the business of the municipality
will have an equitable right of action.
Tit. 5. Concerning
the transaction of the business of others.
1. Ulpianus, On the Edict, Book X.
The
following edict is a necessary one, since it is of great advantage
to parties who are absent not to be exposed to the loss of possession
of their property, or the sale of the same; or the alienation of a
pledge; or an action for the recovery of a penalty; or to the loss
of their property unjustly through their being unrepresented.
2.
Gaius, On the Provincial Edict, Book III.
Where
a person has transacted the business of someone who is absent, even
though the latter may not be aware of the fact; still, whatever he
expends on behalf of the other, or whatever obligation he assumes
with respect to the property of the absent party, he will be entitled
to a right of action for it upon that ground. Thus, in this instance,
a right of action arises on both sides, which is designated an action
based upon the transaction of business; and in fact, as it is proper
that he who acts for another should give an account of what he has
done, and have judgment rendered against him for that reason, whenever
he did not transact the business as he should, or retains any property
derived from said business; so, on the other hand, it is but just
to reimburse him for anything which he either lost, or is about to
lose on this account, if he attended to the business properly.
3.
Ulpianus, On the Edict, Book X.
The
Praetor makes use of the following language: "Where anyone has
transacted the business of another, or attended to any matters in
which a party was interested at the time of his death, 'I will grant
him a right of action on this account.' "
(1)
The term "anyone" is to be understood as also referring
to women; for women have a right to bring suit based upon business
transactions, and there is no doubt that suit can also be brought
against them.
(2)
"Transactions" must be understood as meaning one, or several.
(3)
The term "another" refers to individuals of both sexes.
(4)
Where a ward transacts business, suit can be brought against him to
the amount by which he has become more wealthy, in accordance with
a Rescript of the Divine Pius; but where he brings suit, he must allow
his compensation to be set off.
(5)
If I have transacted the business of an insane person I am, for that
reason, entitled to an action against him. Labeo says that a right
of action should be granted to the curator of an insane person of
either sex.
(6)
These words, "attended to any matters in which a person was interested
at the time of his death"; refer to the time during which he
transacted anyone's business after his death; and this it was necessary
to state in the Edict, since he could not be said to have transacted
the business of the testator who was already dead, nor that of the
heir who had not yet entered upon the estate. Where, however, there
was any addition to the estate after his death; as, for instance,
the children of slaves, the young of animals, or crops, or if any
of the slaves had acquired property; although these additions are
not embraced in the terms of the Edict, they must, nevertheless, be
considered as included therein.
(7)
As this right of action arises from the transaction of business, it
is available both for, and against the heir.
(8)
If a party who has been appointed by the Praetor to carry the judgment
into execution defrauds me, I will be entitled to an action against
him.
(9)
Labeo says, that sometimes in an action founded upon business transacted,
the only point to be considered is fraud; for example if, induced
by affection, you have interfered in my affairs to prevent my property
from being sold, you should only be liable in case of fraud. This
opinion is founded on equity.
(10)
Not only he who voluntarily, and impelled by no necessity, interfered
in the affairs of others, and transacted them, is liable to this action;
but also he who, impelled by some urgent necessity, or by the impression
that such necessity existed, attended to them.
(11)
The question is raised by Marcellus in the Second Book of the Digest,
whether, when I had intended to offer to transact business for Titius,
and you ordered me to do so, I would be entitled to both actions?
I think that I would, just as Marcellus himself says if I took a surety
when about to assume charge of the business; for he holds that under
these circumstances as well, I would be entitled to an action against
both.
4.
The Same, On Sabinus, Book XLV.
Let
us consider whether a surety would have a right of action in this
instance, and it is certain that he has a right to bring one on the
ground of the business transacted, unless he assumed the obligation
entirely through generosity.
5.
The Same, On the Edict, Book X.
Moreover,
if I transacted your business while under the impression that you
had directed me to that effect; here also a right of action, based
upon the transaction of business, arises; but the action on mandate
will not lie. The same rule will apply if I become surety for you,
thinking that I had been directed by you to do so.
(1)
And also if, while under the impression that the business of Titius
was concerned, while in fact it was that of Sempronius, I attend to
it; Sempronius alone will be liable to me in an action based on business
transacted.
6.
Julianus, Digest, Book III.
If
I attend to the business of your ward, without your mandate, but to
prevent you from being liable in an action of guardianship; I will
render you liable to an action on the ground of business transacted
and I will also be entitled to one against your ward, but only if
he has become more wealthy on this account.
(1)
Moreover, if I lend money to your agent on your account, to enable
him to pay your creditor, or release property of yours which is pledged,
I will have a right of action against you based on the transaction
of business; but none against your agent, with whom I made a contract.
But what would be the case if I stipulated with your agent? It can
be stated that I have still an action against you, based on business
transacted, because I interposed this stipulation by way of superabundance
of caution.
(2)
If anyone has received money or other property, in order to bring
it to me, I will be entitled to an action against him based on business
transacted.
(3)
Where anyone transacts my business, not through consideration for
me but for the sake of profit, Labeo held that he was rather attending
to his own affairs than mine; for he aims at his own advantage and
not at mine, if he acts for the purpose of personal gain. Nevertheless,
there is all the more reason that he should be liable to a suit based
on business transacted. If, however, he has expended anything while
attending to my business, he will be entitled to an action against
me; not for what he has lost, since he was guilty of bad faith in
meddling in my affairs, but merely to ascertain the amount by which
I am enriched.
(4)
Where anyone is foolish enough to think that while he was transacting
his own business, he was attending to mine; no right of action will
arise on either side, because good faith will not permit it. And if
he transacted both his and my business believing that he was only
transacting mine, he will only be liable to me for mine. For if I
direct anyone to transact my business, in which you also were interested,
Labeo says that it must be held that if he attended to your affairs
and was aware of the fact, he is liable to you in an action for business
transacted.
(5)
Where anyone, acting as my slave, transacts my business while he was
either a freedman, or a freeborn person, a suit founded on business
transacted will be granted him.
(6)
If I attended to the affairs of your son or your slave, let us consider
whether I shall be entitled to a suit against you on the ground of
business transacted? It seems to me to be the better opinion to adopt
the doctrine of Labeo which Pomponius approves in the Twenty-sixth
Book, namely: if through Consideration for you I have transacted business
relating to the peculium of either, you will be liable to me;
but if through friendship for your son or your slave, or through consideration
for them, I did this; then an action only to the amount of the peculium
involved should be granted against the father or the owner. The same
rule applies if I thought that they were their own masters, for if
I purchase from your son a slave that he does not need, and you ratify
the purchase, your ratification is not valid. Pomponius states in
the same place that he thinks that even if there is nothing in the
peculium because the amount due to the father or owner is greater
than its value; still, an action should be brought against the father
for the amount by which he is enriched as the result of my administration.
(7)
If I transacted the business of a man who was free, but who was serving
you as a slave in good faith, and I did so thinking that he was your
slave; Pomponius states that I would be entitled to a suit against
you based on business transacted with reference to as much of the
peculium of the slave as you can retain; but as to what he
can remove, I have no right of action against you, but I have one
against him. If, however, I knew that he was free, I should be entitled
to an action against him for whatever peculium he could take,
and also one against you for whatever you could retain.
(8)
If I pay money to prevent a slave of Sempronius, whom I think belongs
to Titius, from being killed; I will be entitled to a suit against
Sempronius on the ground of business transacted, so Pomponius says.
(9)
The question is asked by Pedius in the Seventh Book; if I notify Titius,
as your debtor, out of court, to pay me when he is, in fact, not indebted
to you, and you afterwards learn of it, and ratify what I have done;
can you bring an action against me based on business transacted? He
says that this may be doubted, because no business of yours was attended
to, as the party was not your debtor, but he holds that the ratification
makes the affair yours; and just as anyone from whom payment was exacted
has a right of recovery granted against him who ratifies the act;
in the same manner, he who has paid will be entitled to an action
against me after ratification. Thus the ratification makes the affair
yours, which was not yours in the beginning, but only transacted on
your account.
(10)
He also says that if I, in like manner, bring suit and exact payment
from a debtor of Titius, whom I think to be your heir, when in fact,
Seius is your heir; and you afterwards ratify what I have done, I
will have a right of action against you, and you will have one against
me, both based on business transacted. However, this is not your business
which has been transacted, but your ratification makes it such; and
the result is that the transaction is held to be yours, and suit can
be brought against you on the part of the estate.
(11)
What would be the case then, Pedius asked, if I, believing that you
were the heir, should repair a house belonging to the estate, and
you should ratify my act? Would I be entitled to an action against
you? He says that there would be no ground for one, because the heir
has become more wealthy through my act, and the transaction has been
conducted with reference to the property of another; so it is not
possible where a benefit accrues to another by the transaction itself
that this should be held to be your business.
(12)
Let us examine the case where a man, while transacting business for
another, attended to some matters and neglected others, and another
party noticing this, did not take charge of what was neglected, while
a diligent man — for this is what we require — would have attended
to all these things; should it be held that he ought to be considered
liable in a suit based on business transacted, including those things
which he neglected? I think this to be the better opinion, for truly
if there was anything for which he was undoubtedly responsible, he
should by all means be required to give an account of it; for even
though he cannot be blamed for not having brought suit against the
other debtors, since he had not the power to do so, as he was not
authorized to institute any legal proceedings, still, he is to be
held responsible for not having paid his own indebtedness; and if
the debt did not bear interest it at once begins to be due; as the
Divine Pius stated in a Rescript to Flavius Longinus, unless, as he
says, he had released him from the payment of interest:
7.
Paulus, On the Edict, Book IX.
Because
the office of judge has the same force in bona fide actions,
as interrogation has in a stipulation expressly made for the same
purpose.
8.
Ulpianus, On the Edict, Book X.
If,
however, he who administers the affairs of another belongs to that
class who have no need of a mandate, he can be called to account for
not having brought suit against a debtor, if a bond for ratification
was tendered; provided he could easily give security. This is unquestionably
true with respect to a personal debt, and therefore, if the liability
of the party was to be terminated at a certain time, and he was released
for that reason, he would, nevertheless, be liable in an action based
on business transacted. The same rule must be held to apply to a case
where an heir is not liable; which was the opinion of Marcellus.
(1)
Moreover, if I bring suit for land which belongs to you, or to a city,
and employ improper means while transacting either your business or
that of the city, and obtain more profit than I was entitled to; I
shall be obliged to refund this to you, or to the city, although I
could not have brought an action for it.
(2)
If it happens, under any circumstances, that an account for set-off
is not allowed by the court a contrary action can be brought; but
if, after examination, the set-off should be rejected, the better
opinion is that the contrary action cannot be brought, because the
matter has already been judicially decided; and an exception on the
ground of res judicata can be interposed.
(3)
Julianus, in the Third Book treats of the following case. "Where
one of two partners has forbidden me to transact the business of the
partnership, and the other has not, will I be entitled to an action
on the ground of business transacted against the partner who did not
forbid me? The difficulty lies in the fact that if an action is granted
against him, it would be necessary for the one who forbade me to be
affected also; and it would be unjust for him who did not forbid me
to be released by the act of another; for if I lend money to one partner
against the express prohibition of the other, I would have a valid
claim upon the former; and I think with Julianus that it should be
held that an action on the ground of business transacted will lie
against him who did not forbid me, so that he who did, shall not suffer
loss in any respect, either through his partner, or through him who
transacted the business.
9.
Scaevola, Questions, Book I.
Pomponius
says that if I approve of any transaction by you, even though it was
badly done, still, you will not be liable to me on the ground of business
transacted. It must be taken into consideration if it is not true
that, so long as it is doubtful whether I will ratify it or not, the
right of action based on business transacted is in abeyance; for,
when it has once accrued, how can it be annulled by the mere will
alone? He holds, however, that this is only true when you are not
guilty of any bad faith. And Scaevola states that even if I ratified
what had been done, an action on the ground of business transacted
will still lie; and where it is said that you are not liable to me,
this is because I cannot disapprove of what I have once agreed to;
and just as anything which has been properly done must be considered
by the court as ratified, so, also must whatever has been approved
by the party himself. Moreover, if no action based on business transacted
will lie where I have given my approval, what must be done if the
other party collects money from my debtor, and I approve of it? How
can I recover it? And, also, suppose he has sold property belonging
to me, how then can he recover any expense which he has incurred?
For, as there is no mandate, an action based on business transacted
will lie, even after ratification.
10.
Ulpianus, On the Edict, Book X.
But
is an action granted me also for the expenses which I have incurred?
I think that this is the case, unless it has been expressly agreed
that neither party should have an action against the other.
(1)
Where a man brings an action based on the ground of business transacted
he employs this action not only when what he did had some effect,
but it is sufficient if he conducted the business properly even if
it produced no effect; and therefore if he repaired a building, or
cured a slave who was ill, he still has a right of action on this
ground, even if the house was burned, or the slave died; and this
opinion Labeo also adopted; but Celsus says Proculus states in a note
on Labeo that the action should not always be granted; for what if
he repaired a house which the owner had abandoned as not being worth
repairing, or which he did not think he needed? According to the opinion
of Labeo, he is imposing a burden upon the owner in this instance,
since everyone is allowed to abandon property to avoid an action for
threatened injury. Celsus very properly ridicules this opinion; for
he states that the party who transacts business in a suitable manner
has a right of action on this ground; but he does not attend to the
matter as he should, who adds something which was not necessary, or
imposes a burden upon the head of the household. What Julianus wrote
is applicable where he who repairs a house or cures a sick slave is
entitled to an action based on business transacted, if what he does
is an advantage, even if the general result was not beneficial. I
ask what must be done if he thought he was acting advantageously,
but it did not profit the head of the household? I say that he will
not be entitled to an action based on business transacted, for the
beginning ought to be advantageous, even though we do not consider
the result.
11.
Pomponius, On Quintus Mucius, Book XXI.
If
you transact the business of an absent party without his knowledge,
you should be responsible both for negligence and fraud; but Proculus
is of the opinion that you ought sometimes to be responsible for accidents,
as for instance, where you attend to some new business in the name
of the absent party which he was not in the habit of transacting,
for example, by purchasing new slaves, or by engaging in some other
enterprise, for if any loss to him resulted therefrom, you would be
responsible; but any profit would belong to the absent party, and
where profit accrued in some instances, and loss was sustained in
others, the absent principal should set off the profit against the
loss.
12.
Ulpianus, On the Edict, Book X.
This
action should be granted to the successor of a person who dies in
the hands of the enemy, and to whom the business belonged.
(1)
Where I have acted for a son under the control of his father, and
who died in the service after making a will, an action should likewise
be granted.
(2)
It is also sufficient for business to be transacted advantageously
in the case of persons who are living, as well as with reference to
property left by those who are dead; even though the result may be
different from what was expected.
13.
Paulus, On the Edict, Book IX.
My
debtor who owed me fifty aurei died. I undertook the care of
his estate, and expended ten aurei. I then deposited in a chest
a hundred aurei which were the proceeds of the sale of property
belonging to the estate, and this sum was lost without my fault. The
question arose whether, if an heir should appear, I could bring an
action against him for the sum of fifty aurei which I had lent,
or for the ten which I had expended? Julianus says that the question
which we should consider depends upon whether I had good reason for
putting aside the hundred aurei; for, if I should have paid
myself and the other creditors of the estate, I ought to be responsible
not only for the sixty aurei, but for the remaining forty as
well. I might, however, retain the ten which I expended; that is to
say, I should only pay over ninety. If, however, there was good reason
for putting aside the entire sum of a hundred; as, for instance, if
there was danger that land forming part of the estate would be forfeited
for taxes; or that the penalty for money borrowed on bottomry would
be increased; or that payment would be required on account of an award;
I could collect from the heir not only the ten aurei which
I had expended in connection with the business of the estate, but
also the fifty which were due to me.
14.
Ulpianus, On the Edict, Book X.
Where
the son of a family volunteers to transact the business of others,
it is only just that an action should be granted against his father
also, whether the son has property of his own, or whether his father
has profited by his acts. Where a female slave has had charge of the
business, the same rule applies.
15.
Paulus, On the Edict, Book IX.
Pomponius
states in the Twenty-sixth Book that, where business is transacted,
the condition of the parties must be considered in the beginning;
for, as he says: "Suppose I begin to transact the affairs of
a minor who, in the meantime, arrives at the age of puberty? Or of
a slave, or of the son of a family, and, in the meantime, he becomes
free, or the father of a family?" I, myself, have stated that
this is the better opinion, unless, in the beginning, I have only
undertaken to attend to a single matter of business, and afterwards
I have taken charge of another, with a different intention, at the
time when the party either arrived at puberty, or became free, or
the father of a family; for here several things, so to speak, were
attended to, so that the action, as well as the judgment, will be
arranged and regulated in accordance with the condition of the parties.
16.
The Same, On Plautius, Book VII.
When
anyone transacts my business, there are not several different matters
but only one contract; unless, in the beginning, the party undertook
to do only one thing, and to retire when it was finished; for in this
case if he undertook to do anything else after having changed his
mind, there is a new contract.
17.
Ulpianus, On the Edict, Book XXXV.
Where
a party performed an act while in slavery, he is not compelled to
render an account of it after being manumitted. When, however, such
a connection between the transactions exists that the account of what
was done in slavery cannot be separated from the acts performed in
freedom; it is settled that what was done in slavery can be brought
into court in an action on mandate, or on business transacted. For
if while he was in slavery, the party purchased land, and built a
house upon it, and the house fell down, and then, after he was manumitted,
he should rent the ground, the lease of the land would only be included
in the suit based on business transacted, for the reason that nothing
more arising from the transactions of previous date could be included;
unless the account of the business done during the time that the party
was free cannot be made up without it.
18.
Paulus, On the Edict, Book IX.
Proculus
and Pegasus are of the opinion that a person who began to transact
business while in slavery, must act in good faith; and therefore,
the amount which he would have been able to make if some one else
was managing his business, he must, as he did not exact it from himself,
pay it over to his principal in an action based on business transacted;
if his peculium amounted to so much that by retaining it, he
could have made that sum. Neratius is of the same opinion.
19.
The Same, On Neratius, Book II.
Even
if he had no peculium, but was a debtor by nature and afterwards
continued to act, he is bound to pay, himself; just as he who is liable
in an action which would be barred by lapse of time, is also compelled
by a suit based on business transacted to pay his principal, after
the time has expired.
(1)
Our Scaevola says that he thinks the statement of Sabinus that the
account ought to be rendered from the beginning should be understood
to mean that it ought to show what was left at the time when the party
first became free, and not that he should be held liable for any malice
or negligence of which he was guilty while in slavery; and, therefore,
if it is ascertained that, while he was in slavery, he expended money
in an improper way, he should be released from liability.
(2)
If I direct a freeman who is held as a slave by me in good faith to
perform some act; Labeo thinks that I would not be entitled to an
action on mandate against him; since he is under restraint by reason
of his servile condition; hence an action based on business transacted
will lie, because, on the one hand, he had a desire to attend to my
affairs, and on the other, he was in a position where I could compel
him to attend to them.
(3)
While you were transacting my business during my absence, you, without
knowing it, purchased property which belonged to me; and, being still
ignorant of this fact, you acquired its ownership by prescription.
You are not obliged to restore it to me in an action for business
transacted; but if, before you obtained its ownership by prescription
you had learned that the property was mine, you must employ someone
to bring suit against you for it in my name, so that he may recover
it for me, and give you an opportunity to enforce your stipulation
against eviction; and you will not be considered guilty of fraud in
the employment of this person, since you should do this to avoid being
liable in an action on business transacted.
(4)
In an action based on business transacted, we must not only pay the
principal, but, also the interest collected from the money of the
other party, or even which we might have collected. On the other hand,
also, we can by means of this action recover interest which we have
paid, or interest which we might have collected on our own money,
and which was expended in the business of the other party.
(5)
I transacted the business of Titius while he was in the hands of the
enemy; after his return I have a right of action against him based
on business transacted, even though at the time when this was done
he was not acting as principal.
20.
Ulpianus, On the Edict, Book X.
But
if he should die while in the hands of the enemy, both the direct
action, and the counter action based on business transacted, will
lie for, and against his successor.
21.
Paulus, On the Edict, Book IX.
Servius
was of the opinion, as is stated by Alfenus in the Thirty-ninth Book
of the Digest, that when three men were captured by the Lusitanians,
and one of them was released on condition of his bringing a ransom
for all three, if he did not return, the two others would be required
to pay a ransom for himself also; and he having refused to return,
and for this reason, the others having paid his ransom, as well as
their own, Servius answered that it was just for the Praetor to grant
them an action against him.
(1)
Where one transacts business relating to an estate, he binds the estate
to a certain extent to himself, and himself to the estate; and therefore,
it makes no difference whether a minor heir to the estate exists,
because the debt, together with the remaining burdens of the estate
devolves on him.
(2)
If, during the lifetime of Titius, I began to manage his business,
I should not cease to do so when he dies. I am not obliged, however,
to begin anything new, but it is necessary to finish what has been
commenced, and to take care of it; as occurs when a partner dies,
for so far as anything is done for the purpose of terminating business
already begun is concerned, it makes no difference at what time it
was finished, but it does at what time it was commenced.
(3)
Lucius Titius attended to my business by your order; if he did not
do so properly, you will be liable to me in an action based on business
transacted, not only to force you to assign your rights of action
against him, but also because you have acted imprudently in selecting
him, and you must indemnify me for any loss incurred through his negligence.
22.
Gaius, On the Provincial Edict, Book III.
Where
anyone, while transacting the business of an estate, or that of individuals,
purchases property because it is necessary, he can bring an action
based on business transacted for what he expended, even though the
property was destroyed; for example, where he procured grain, or wine
for slaves, and it was lost by some accident, such as fire, or the
fall of a house. It should, however, be understood that the said fall,
or fire must have occurred without his fault; for if he should have
judgment rendered against him on account of either of said accidents,
it would be absurd for him to be able to recover anything on account
of the property destroyed.
23.
Paulus, On the Edict, Book XX.
Where
anyone, while transacting the business of another, has collected a
debt which was not due, he can be forced to make restitution; but
where he, in the course of the business, has paid a debt which was
not due, it is the better opinion that he must blame himself for it.
24.
The Same, On the Edict, Book XXIV.
If
I pay money to an agent, with the intention that it shall belong to
my creditor, the ownership of the same is not acquired by the creditor
through the agent; the creditor, however, can, by ratifying the act
of the agent, make the money his own, even against my consent; for
the reason that the agent in receiving it only attended to the business
of the creditor, therefore, I am discharged from liability by the
ratification of the creditor.
25.
The Same, On the Edict, Book XXVII.
Where
anyone, while transacting business for another expends more than he
should have done, he can recover from his principal the amount which
he ought to have paid.
26.
Modestinus, Opinions, Book I.
Where
an estate left to a municipality in trust was ordered to be delivered,
the magistrate appointed Titius, Seius, and Gaius as being suitable
agents for the management of the property. These agents subsequently
divided the administration of the estate among themselves, and did
so without the authority or consent of the magistrates. Sometime afterwards,
the will containing the trust under which the estate was to be turned
over to the municipality, was proved in court to be void; and Sempronius
appeared as the heir-at-law, ab intestato, of the deceased,
but one of the aforesaid agents died insolvent, and without leaving
an heir. I ask if Sempronius should bring suit against these agents
of the estate, who would assume the risk caused by the insolvency
of the deceased agent? Herennius Modestinus answered that the action
based on business transacted could not be employed against anyone
of the agents on account of what he alone had done, and that any loss
must be borne by him who claimed the estate as heir-at-law.
27.
The Same, Opinions, Book II.
Two
brothers, one of age, and the other a minor, owned an unproductive
tract of land in common. The older brother erected large buildings
on the tract where the residence of his father stood, and when he
divided the land with his brother, he claimed that he should be paid
for what he had expended, since the property had been improved by
what he had done; his younger brother having at that time become of
age. Herennius Modestinus answered that he for whom the inquiry was
made had no right of action on account of expenses incurred, when
there was no necessity for them, and where they had been made only
for the sake of pleasure.
(1)
I gave it as my opinion that if Titius brought up his niece through
affection for his sister, no action would lie against her on this
ground.
28.
Javolenus, On Cassius, Book VIII.
Where
anyone has transacted the business of Seius by the direction of Titius,
he is liable to Titius in an action of mandate, and in the action
the amount of the interest of both Seius and Titius should be taken
into consideration; the interest of Titius, however, must be determined
by the amount he has to pay Seius, to whom he is liable either on
mandate, or for business transacted. Titius has a right of action
also against the party whom he directed to attend to the affairs of
another, before he himself pays anything to his principal; because
he is held to have lost the amount for which he was liable.
29.
Callistratus, Monitory Edict, Book III.
Where
a father by his will, appointed a guardian for his posthumous son,
and the guardian, in the meantime, administered the guardianship,
and the child was not born; an action will lie against him, not on
the ground of guardianship, but on that of business transacted; but
if a posthumous child should be born, there will be an action on guardianship,
and this would include both terms of administration, the one before
the child was born, and the one afterwards.
30.
Julianus, Digest, Book III.
An
inquiry was made with respect to the following fact. A certain man
was appointed by the resolution of a municipality to purchase wheat,
and another person who was appointed to act under him as a subordinate
curator spoiled the wheat, by mixing other grain with it. The price
of the wheat which was bought for the municipality was charged to
the curator; what kind of an action could the curator bring against
the subcurator, so that he might be reimbursed for the loss which
he had sustained on his account? Valerius Severus answered that a
guardian has a right of action against his fellow-guardian, on the
ground of business transacted and, he also stated that the same right
of action is granted one magistrate against the other; provided, however,
that he was not aware of the fraud. In accordance with these opinions
it must be said that the same rule applies to a subcurator.
31.
Papinianus, Opinions, Book II.
A certain
man directed a freedman or a friend to borrow money, and the creditor,
on the faith of the letter, made the agreement, and the surety was
given. In this instance, although the money was not expended upon
property, still an action is granted to the creditor or his surety,
against the party, on the ground of business transacted; which certainly
bears a resemblance to the Actio Institoria.
(1)
A man who was transacting business for Sempronius, ignorantly attended
to a matter in which Titius was interested. He will be liable to Sempronius
also, on account of this particular matter, but he can make an application
to the court for a bond of indemnity against Titius, to whom a right
of action is granted. The same rule applies to the case of a guardian.
(2)
Where a case was ready to be heard, and the defendant did not appear,
a friend of his voluntarily took his place, and stated the cause of
his absence to the court. The latter will not be considered to have
been guilty of negligence, if he did not appeal where a judgment was
rendered against the party who was absent. Ulpianus says in a note,
that this is correct, because the first party in default lost his
suit; but where a friend defends an absent person and permits judgment
to be taken against him, and brings suit on the ground of business
transacted, he will be rendered liable, if he does not appeal when
he could do so.
(3)
A person who transacts the business of another is obliged to pay interest
on any money in his possession, after the necessary expenses have
been settled.
(4)
A testator stated that his freedman should be paid a certain sum of
money for the expense of erecting a monument; and if anything beyond
that amount was expended, suit cannot be brought for it on the ground
of business transacted, or on that of a trust, since the wish of the
testator established a limit to the expenditure.
(5)
The heir of a guardian, who is a boy under the age of puberty, is
not liable for matters attended to by his guardian with reference
to the property of the female ward of his father; but the guardian
of the boy may be sued in his own name on the ground of business transacted.
(6)
Although a mother may transact the business of her son in accordance
with the will of his father, through the inducement of natural affection;
still, she will not have authority to appoint an agent, at her own
risk, for the purpose of instituting legal proceedings, because she
cannot herself legally act in behalf of her son, or alienate her property,
or discharge a debtor of the minor by accepting payment.
(7)
Where one party defended a case in which a common right of water was
involved, and judgment was rendered in favor of the owner of the land;
he who paid the necessary, reasonable expenses in the case where both
were interested, will be entitled to an action on the ground of business
transacted.
32.
The Same, Opinions, Book III.
A surety,
through inexperience, received pledges or securities relating to another
contract in which he was not interested, and paid both debts to the
creditor, thinking that he could obtain indemnity by combining the
securities. On account of this, a suit on mandate brought against
him would be of no effect, and he himself could not bring suit against
the debtor, but it would be necessary for each of them to sue the
other on the ground of business transacted. In the trial of this it
will be sufficient to take into consideration the negligence, but
not the accident, for the reason that a surety is not considered to
be a robber. The creditor in this instance, cannot be held liable
in an action of pledge for the restitution of the property as he seems
to have sold his right.
(1)
Where a mother has received from a man who is betrothed to her daughter
gifts for the latter of which the girl is ignorant; an action on mandate
or deposit does not lie in her favor, but one can be brought on the
ground of business transacted.
33.
The Same, Opinions, Book X.
The
heir of a deceased husband cannot bring suit against his wife (who
during marriage had the property of her husband under her control)
for plundering an estate; and he will act more wisely if he should
sue her for production of property on the ground of business transacted,
if she actually attended to the affairs of her husband.
34.
Paulus, Questions, Book I.
Nesennius
Apollinaris to Julius Paulus, Greeting. A grandmother transacted the
business of her grandson, and after the death of both of them the
heirs of the grandmother were sued by the heirs of the grandson in
an action based on business transacted, but the heirs of the grandmother
filed a claim for support furnished the grandson. Answer was made
to this that the grandmother had furnished it out of her own property
through natural affection, since she had not asked that the amount
of the maintenance should be fixed, and that it had not been fixed;
and moreover, it has been established that if the mother had furnished
maintenance she could not recover that which he had provided out of
her own property under the inducement of natural affection. On the
other hand, it was stated, and I hold it to be correct, that this
is the case where it is proved that a mother had furnished maintenance
out of her own property; but in the present instance it is probable
that the grandmother who transacted the business of her grandson supported
him out of his own property. It was a subject of discussion as to
whether the expense should be considered as having been paid out of
both estates, and I ask what seems to be the more just conclusion?
I answered that the decision in this instance depends upon the facts.
For I am of the opinion that what has been established in the case
of the mother should not always be observed; for what would be the
effect if the mother had positively stated that when she was supporting
her son, she did so in order to bring an action either against himself
or his guardians? Suppose, for instance, that his father had died
far from home, and that his mother, while returning to her country
had supported her son and the slaves; in this instance the Divine
Pius Antoninus established the rule that a suit on the ground of business
transacted could be granted against the minor himself. Therefore,
as the question is one of fact, I think that the grandmother or her
heirs should be heard if they wish an accounting for maintenance,
and especially so if it appears that the grandmother had entered the
items in the expense account. I think that it by no means should be
admitted that the expenses should be charged to both estates.
35.
Scaevola, Questions, Book I.
Where
a husband has transacted the affairs of his wife after a divorce has
taken place, her dowry can be recovered not only by an action for
dowry, but also on the ground of business transacted. This is the
case where the husband was able to deliver the dowry while he was
attending to the business; otherwise, he cannot be made responsible,
for not exacting it from himself; but after he has lost his property,
a full right of action on the ground of business transacted will lie
against him; although if the husband is sued in an action for dowry
he must be discharged. But in this instance a limit should be fixed,
so if the statement of the complaint is: "As far as he was able
although he afterwards lost his property"; where he was able
to pay her during that time; for he was not guilty of wrong-doing,
so far as his duty was concerned, if he did not immediately sell his
property in order to obtain the amount, for he must have allowed some
time to pass during which he appeared not to have done anything. If,
in the meantime, before he had fulfilled his duty, the property was
lost, he is not liable on the ground of business transacted any more
than if he had never been able to pay the money. But where the husband
is able to pay, an action founded on business transacted is permitted
because there is danger if he ceases to be solvent.
(1)
I do not think that a man who transacts the business of a debtor is
bound to restore to him a pledge when he still owes the money, and
there is no other way in which it can be paid.
(2)
The action for the rescission of a contract does not belong to the
class of actions based on business transacted, and is barred after
six months have elapsed, if the party did not find the slave among
the assets of the other; or, if he did find them, did not find, and
therefore did not recover, certain additional property which belonged
under the head of accessions, so that the slave was less valuable,
or any thing that was acquired through the slave which was not derived
from the property of the purchaser; and there was not enough obtained
from the business of the purchaser for the vendor to satisfy his claim.
(3)
Moreover, if the person who is transacting the business owes his principal
on some other ground, and the obligation is one of long time, and
the party is wealthy, he cannot be blamed for not paying the debt;
that is, provided the payment of the interest does not give rise to
complaint. The rule is different in the case where a guardian is a
debtor to his ward, because there the latter was interested in the
payment of the former debt, as he then might bring suit for the debt
on the ground of guardianship.
36.
Paulus, Questions, Book IV.
Where
a man who is free, but serves me in good faith as a slave, has borrowed
money and employed it for my benefit, let us consider by what action
I must restore what he expended in my behalf; as he transacted the
business for me not as a friend, but as his owner. An action based
on the ground of business transacted should be granted, and this ceases
to be proper as soon as his creditor is paid.
37.
The Same, Opinions, Book I.
Where
the business of a ward has been transacted without the authority of
his guardian, it is customary to inquire, at the time issue was joined
in the case, whether the ward has become enriched by the matter on
account of which suit was brought against him.
(1)
Where anyone transacts business for another in which money is involved,
he is compelled also to pay interest and assume the risk in such investments,
as he himself has contracted; except where, through accidental circumstances,
the debtors have lost so much of their money that at the time when
issue was joined in the suit they became insolvent.
(2)
Where a father has charge of property belonging to his emancipated
son and which he has given him, he is liable to a suit on the ground
of business transacted.
38.
Tryphoninus, Disputes, Book II.
A man
who owed a debt which did not bear interest transacted the business
of his creditor, and the question arose whether he could be compelled
to pay interest on the above-mentioned sum by a suit based on business
transacted. I stated that he would owe interest if he had been required
to collect it for himself, but if the day for payment had not arrived
at the time when he was transacting the business, he would not be
compelled to pay interest; but if the time had elapsed, and he did
not include the money owed by himself in the accounts of the creditor
whose business he was transacting, he certainly would be compelled
to pay interest in a bona fide action. Let us see what
interest he would owe, whether it would be that on which the same
creditor would loan money to others, or would it be the highest rate?
It is true that anyone who converts to his own use the money of a
party whose guardianship or business he has charge of, or if a magistrate
appropriates the money of a municipality, he must pay the highest
rate of interest, as has been established by the Divine Emperors.
But it is different in this instance, where a party did not appropriate
money from the business which he was transacting, but borrowed it
from a friend before he assumed the administration of the latter's
affairs; for those to whom the above rule has reference were obliged
to show good faith without compensation, at all events such as was
absolute and without any profit whatever; and where they appear to
have abused their privileges they are forced to pay the highest rate
of interest by way of a kind of penalty; but this party received property
as a loan in a legal way, and is liable to interest because he did
not pay the principal, and not because he appropriated to his own
use money derived from the business which he was transacting. It makes
a great deal of difference whether the indebtedness has just begun
to be incurred, or whether it was done previously, because in the
latter instance this is enough to make a debt bear interest which
did not do so before.
39.
Gaius, On Verbal Obligations, Book III.
Where
anyone pays a debt for another, even though the latter is unwilling,
or ignorant of the fact, he discharges him from liability; but where
money is owing to anyone, another cannot legally exact it without
the consent of the former; for both natural reason and the law have
established the rule that we may improve the condition of a man who
is ignorant and unwilling, but we cannot make it worse.
40.
Paulus, On Sabinus, Book X.
If
I have a house in common with you and give security for the prevention
of threatened injury for your part of said house; it must be stated
that what I pay by way of damage I can sue you for rather on the ground
of business transacted than on that of a common division of expense;
because I was able to protect my own share without being forced to
protect that of my partner.
41.
The Same, On the Edict, Book XXX.
Where
anyone has defended my slave in a noxal case, and I was ignorant of
the fact, or absent, he will have a right of action against me for
the entire amount on the ground of business transacted, and not one
based on peculium.
42.
The Same, On the Edict, Book XXXII.
If
you undertake the transaction of my business at the request of my
slave, and have done this merely at his suggestion, a suit based on
business transacted will arise between us; but if you do so under
the direction of my slave, it has been held that you can bring suit,
not only to the extent of the peculium, but also on the ground
of its having been for my benefit.
43.
Labeo, On the Last Epitomes by Javolenus, Book VI.
When
you pay money in the name of a party who did not specially direct
you to do so, you will be entitled to an action based on business
transacted; since by that payment the debtor was discharged by his
creditor, unless the debtor had some interest in not having the money
paid.
44.
Ulpianus, Disputations, Book VI.
Where
a man induced by friendship for their father makes an application
for the appointment of a guardian for minors, or takes measures for
the removal of guardians who are suspected, he has no right of action
against said minors, according to a Constitution of the Divine Severus.
45.
The Same, Opinions, Book IV.
Where
an expenditure of money is advantageously made by some one while transacting
the business of another, which includes expenses honorably incurred
to secure public offices which are obtained by degrees; the sum expended
can be recovered by an action based on business transacted.
(1)
Where slaves have received their freedom absolutely by will, they
are not compelled to give an account of the matters which they transacted
during the lifetime of their master.
(2)
Titius, being under the impression that his sister was the testamentary
heir of the deceased, paid a debt to the creditors of the estate.
Although he did this with the intention of transacting the business
of his sister, he was in fact doing it for the children of the deceased
who would be the proper heirs of their father if there had been no
will; and, because it is just that he should not be subjected to loss,
it is established that he can recover what he has paid by a suit based
on business transacted.
46.
Africanus, Questions, Book VII.
You
directed my son to buy you a tract of land, and when I heard of it
I myself bought the land for you. I think it should be considered
with what intention I made the purchase; for if I knew it to be on
account of something which was necessary to you, and also it was your
will that you would be glad to have the purchase, a right of action
based on business transacted arises between us; as there would be
if there had been no mandate of any kind, or if you would have ordered
Titius to make the purchase, and I had made it because I could attend
to the matter more conveniently. If, however, I made the purchase
to prevent my son from being liable to an action on mandate, it is
the better opinion that I could bring an action on mandate against
you in his behalf, and you would be entitled to an action de peculio
against me; because, even if Titius had executed a mandate, and, to
prevent his being held liable on that account, I had made the purchase,
I could bring an action against Titius on the ground of business transacted,
and he could bring one against you, and you one against him, on mandate.
The same rule applies if you ordered my son to be surety for you,
and I become surety for you myself.
(1)
If the suggestion is made that you have ordered Titius to become your
surety, and for some reason he, having been prevented from doing so,
I become your surety in order to release him from his promise, I will
be entitled to an action based on business transacted.
47.
Paulus, Sentences, Book I.
An
action based on business transacted is granted to him who is interested
in having a case of this kind brought.
(1)
It makes no difference whether a party brings suit by a direct or
other action, or whether suit is brought against him; (since in extraordinary
proceedings where the use of formulas is not observed this distinction
is superfluous), especially where both these actions have the same
force and effect.
48.
Papinianus, Questions, Book III.
Where
a brother, who transacts the business of his sister without her knowledge,
stipulates for her dowry with her husband; an action can legally be
brought against him on the ground of business transacted to compel
him to release her husband.
49.
Africanus, Questions, Book VIII.
Where
a slave whom I have sold steals something from me, his vendor, and
the purchaser sells the article, and then it ceases to exist, an action
for the price should be granted me on the ground of business transacted;
as would be the case if you had attended to some business which you
thought to be yours, when in fact it was mine; or, on the other hand,
you would be entitled to an action against me if, where you thought
an estate belonged to you when it in fact belonged to me, you delivered
to some person property of your own which had been bequeathed to you
(since the payment of the legacy in this instance would release me).
Tit. 6. Concerning
persons who bring vexatious actions.
1. Ulpianus, On the Edict, Book X.
"Where
anyone is said to have received money for the purpose of causing annoyance,
or to abstain from doing so, a right of action in factum will
lie against him for a year to recover fourfold the amount which he
is said to have received; and after a year one will lie for the actual
amount."
(1)
Pomponius states that this action is not only applicable to cases
where money is involved, but also to public prosecutions, and especially
as the party is liable under the Lex Repetundarum who receives
money in consideration of doing something to cause annoyance or for
refraining from doing so.
(2)
Anyone who receives money before issue is joined in a case or who
receives it afterwards, is equally liable.
(3)
A Constitution of our Emperor directed to Cassius Sabinus, prohibits
the giving of money to a judge or an adversary in public or private
cases, or in those in which the Treasury is interested; and where
this is done it orders the right of action to be lost. For it may
be asked, if the adversary, not with vexatious intent but for the
purpose of compromise, accepted the money; does the constitution apply?
It is my opinion that it does not, since the right of action has ceased;
for compromises are not forbidden but only base acts of extortion.
(4)
Again, a party is also said to have received money where he has received
something else instead of money.
2.
Paulus, On the Edict, Book X.
Moreover,
where anyone is released from an obligation this may be considered
as receiving money; and also where money is loaned him to be used
gratuitously, or property is sold or leased for less than its value.
It makes no difference whether the party himself received the money,
or ordered it to be paid to someone else, or ratified it after it
had been accepted in his behalf by another.
3.
Ulpianus, On the Edict, Book X.
In
general, this rule also applies where a party obtains any benefit
for such a consideration, whether he gets it from his adversary or
from anyone else.
(1)
Wherefore, if a party receives money for the purpose of causing some
annoyance, he is liable whether he did so or not; and where he received
it not to cause annoyance, if he does cause it, he is liable.
(2)
He also is liable under this Edict who is depectus, which means
one who has entered into a disgraceful contract.
(3)
It should be observed that he who has paid money in order that some
party might suffer annoyance, has himself no right of recovery, for
he has acted dishonorably; but the right of action is granted to him
on whose account the money was paid for the purpose of annoying him;
for which reason if anyone receives money from you in consideration
of causing me annoyance, and from me to prevent my being annoyed,
he will be liable to me in two actions.
4.
Gaius, On the Provincial Edict, Book IV.
An
heir, however, is not entitled to this action, because it should be
sufficient for him that he has a right of action to recover the money
which was paid by the deceased:
5.
Ulpianus, On the Edict, Book X.
But
this action is granted against an heir for whatever has come into
his hands; as it has been established that this dishonorable profit
can be recovered from heirs, although criminal actions are extinguished;
as, for instance, where money is given for falsification, or to a
judge for a favorable decree, and is recovered from the heir, as anything
else may be recovered which has been obtained in an unlawful manner.
(1)
Also, in addition to this action, one to recover the money also lies,
where the only base conduct is that of the party who received it;
for if this also applies to the giver then he who possessed it is
in a better position. If a suit for the money should be brought, would
this right of action be lost, or should a suit for threefold the amount
be granted? In a case of a thief we grant an action for fourfold the
amount, as well as one for the recovery of the property. I am of the
opinion that either of the actions alone is sufficient, for where
an action for the recovery of the money will lie, then it is not necessary
to grant an action in factum after the lapse of a year.
6.
Gaius, On the Provincial Edict, Book IV.
The
year when a person is paid money to prevent suit being brought against
him begins at the time when the payment was made, if he then had power
to bring suit to recover it. But in the case of a person with reference
to whom another paid money to have suit brought against him, it may
be doubted whether the year should be reckoned from the day when the
money was paid, or from the day when the party knew that it had been
paid; for where he does not know that there is reason for suit to
be brought against him, he is held not to have the power of bringing
one, and the better opinion is that the year should be reckoned from
the time when he did know.
7.
Paulus, On the Edict, Book X.
Where
anyone has received money from another in order to prevent me from
being subjected to annoyance, then, if it was given through my direction,
or by my agent who had charge of all my business, or by a party who
voluntarily acted in my behalf, and whose act I ratified, I am considered
to have paid the money myself. But if another party did not pay it
on my order, even though he did it through consideration for me in
order that the act should not be committed, and I did not ratify what
he did; then the party who paid the money can recover it, and I have
a right of action for fourfold the amount.
(1)
If the money was paid for the purpose of having a vexatious suit brought
against the son of a family, the father also is granted this action.
In like manner, if the son of a family should accept money to induce
him to bring a vexatious suit against anyone, or not to bring it;
an action will be granted against his father. If another party paid
him money not to bring the action without any direction from me, he
can then recover it, and I will have a right to bring suit for quadruple
the amount.
(2)
Where a farmer of the revenue retains a person's slaves, and money
was paid to him which was not due, he, also, is liable in an action
in factum by this section of the Edict.
8.
Ulpianus, Opinions, Book IV.
When
a competent judge is informed by an innocent man that he has paid
money on account of a crime which was not proved against him; he must
order what has been unlawfully extorted to be refunded, according
to the terms of the Edict which treat of persons who are said to have
received money either to cause annoyance, or to refrain from doing
so; and he must inflict punishment in proportion to the crime upon
the party who committed it.
9.
Papinianus, On Adultery, Book II.
Where
a slave is accused he shall be put to torture, if this is demanded;
and if he is acquitted, the accuser shall be condemned to pay his
master double his value; and, in addition to double his value, an
inquiry shall be made as to whether the prosecution was instituted
for the purpose of annoyance, as the crime of illegal prosecution
is separate from any loss which has been sustained by the master through
the torture of the slave.