§ 9. If
there is no self-successor, the inheritance devolves by the same law
of the Twelve Tables on the agnates.
§ 10. Those
are called agnates who are related by civil law. Civil relationship
is kinship through males. Thus brothers by the same father are agnates,
whether by different mothers or not, and are called consanguineous;
and a father’s consanguineous brother is agnate to the nephew,
and vice versa; and the sons of consanguineous brothers, who are generally
called consobrini, are mutual agnates; so that there are various degrees
of agnation.
§ 11. Agnates
are not all called simultaneously to the inheritance by the law of
the Twelve Tables, but only those of the nearest degree at the moment
when it is certain that the deceased is intestate.
§ 12. And
in title by agnation there is no succession; that is to say, if an
agnate of the nearest grade abstains from taking the inheritance,
or die before he has entered on it, the agnates of the next grade
do not become entitled under the statute.
§ 13. The
date for determining the nearest agnate is not the moment of death,
but the moment when intestacy is certain, because it seemed better,
when a will is left, to take the nearest agnate at the moment when
it is ascertained that there will be no testamentary heir.
§ 14. As
to females, the rules of civil law are not the same in respect of
the inheritances which they leave and in respect of the inheritances
which they take. An inheritance left by a female is acquired by the
same title of agnation as an inheritance left by a male, but an inheritance
left by a male does not devolve on females beyond sisters born of
the same father. Thus a sister is by civil law the heir of a sister
or brother by the same father, but the sister of a father and daughter
of a brother have no civil title to the inheritance. The same rights
as those of a sister belong to a mother or stepmother who passes into
the hand of a father by marriage and acquires the position of a daughter.
§ 15. If
the deceased leaves a brother and another brother’s son, as
observed before (§ 11), the brother has priority, because
he is nearer in degree, which differs from the rule applied to self-successors.
§ 16. If
the deceased leaves no brother, but children of more than one brother,
they are all entitled to the inheritance; and it was once a question,
in case the brothers left an unequal number of children, as if one
of them leaves only one child and another three or four, whether the
number of stems (stirpes) was to be the divisor of the inheritance,
as among self-successors, or the number of individuals (capita); however,
it has long been settled that the divisor is the number of individuals.
Accordingly, the total number of persons determines the number of
parts into which the inheritance must be divided, and each individual
takes an equal portion.
§ 17. In
the absence of agnates the same law of the Twelve Tables calls the
gentiles to the inheritance. Who are gentiles was explained in the
first book (1, § 164 a), and as we then
stated that the whole law relating to gentiles is obsolete, it is
unnecessary to go into its details on the present occasion.
§ 18. These
are all the provisions in the law of the Twelve Tables for intestate
devolution, and how strictly they operated is patent.
§ 19. For
instance, children immediately they are emancipated have no right
to the inheritance of their parent under that law, since they are
thereby divested of the character of self-successors.
§ 20. In
the same position also are children whose freedom from the power of
their parent was only caused by the fact that on their receiving jointly
with their father a grant of Roman citizenship (1, § 94),
there was no express order of the emperor subjecting them to parental
power.
§ 21. Again,
agnates who have undergone a capitis deminutio are not admitted to
the inheritance under this law, title by agnation being extinguished
by capitis deminutio.
§ 22. And
if the nearest agnate does not enter on an inheritance, the next degree,
according to the law of the Twelve Tables, is not in any way entitled
to succeed.
§ 23. Female
agnates beyond the degree of sisters by the same father have no title
to succeed under this statute.
§ 24. Cognates
who trace their kin through females are similarly barred, so that
even a mother and a son or daughter have no reciprocal right of succession,
unless by subjection to the hand of the husband the mother has become
a quasi sister to her children.
§ 25. But
to these legal inequalities the edict of the praetor administers a
corrective.
§ 26. For
all children whose statutory title fails are called by the praetor
to the inheritance, just as it they had been in the power of their
parent at the time of his decease, whether they come in alone or in
concurrence with self-successors, that is, with other children who
were actually subject to the power of the parent.
§ 27. Agnates
who have undergone a capitis deminutio minima are called by the praetor,
not indeed in the next degree to self-successors, that is, in the
order in which the law of the Twelve Tables would have called them
but for their capitis deminutio, but in the third rank under the designation
of cognates (next of kin); for though their capitis deminutio has
blotted out their statutory title, they nevertheless are still entitled
as cognates; though if another person exists with unimpaired title
by agnation, he is called in preference, although he may be in a remoter
degree.
§ 28. The
rule is similar, according to some, in respect of the remoter agnate
who has no statutory title to succeed on the nearest agnate failing
to take; according to others, the praetor calls him to the succession
in the order allotted by the statute to agnates.
§ 29. Female
agnates, at all events, beyond the degree of sisters are called in
the third degree, that is to say, after self-successors and other
agnates.
§ 30. So
are those persons who trace their kindred through females.
§ 31. Children
in an adoptive family are called to succeed their natural parents
in the same order.
§ 32. Those
whom the praetor calls to an inheritance do not become heirs (heredes)
at civil law, for the praetor cannot make an heres; only a statute
or similar ordinance, such as a decree of the senate or an imperial
constitution, being able to do so; thus the praetor’s grant
of possession only puts the grantee in the position of an heir.
§ 33. Several
additional grades of bonorum possessio are recognized by the praetor
on account of his desire that no one may die without a successor;
but I forbear to examine them on the present occasion, because I have
handled the whole subject of title by descent in a separate treatise
devoted to this matter.
§ 33 a. [?Sc.
Tertullianum; cf. Inst. 3, 3; Ulp. 26, 8.]
§ 33 b. Sometimes,
however, the object of the praetor in granting bonorum possessio is
rather to confirm the old law than to amend or contradict it, for
he likewise gives juxta-tabular possession to those who have been
instituted heredes in a legally valid will.
§ 34. So
also, when a man dies intestate, the praetor grants bonorum possessio
to self-successors and agnates, the only advantage they derive from
the grant being that it entitles them to the interdict beginning with
the words: ‘Whatsoever portion of the goods’ (the use
of which will be explained in due time and place, 4, § 144),
for independently of the grant of possession, they are entitled to
the inheritance by the civil law.
§ 35. Possession
is often granted to a person who will not in fact obtain the inheritance,
in this case the grant is said to be one which has no effect (sine
re).
§ 36. For
instance, if an heir instituted by a duly executed will formally accepts
the inheritance, but declines to demand possession according to the
will, contenting himself with his title at civil law, those who without
a will would be entitled by intestacy may nevertheless obtain a grant
of possession from the praetor, but the grant will be one having no
effect (sine re), because the testamentary heir can enforce his civil
title to the inheritance against them.
§ 37. The
same happens when a man dies intestate and a self-successor declines
to demand possession, contenting himself with his civil title; for
an agnate may obtain a grant of possession, but it will have no effect,
because the civil inheritance can be claimed by the self-successor.
Similarly, if an agnate entitled by civil law accepts the civil inheritance
but omits to demand possession, a cognate can obtain a grant of possession,
but it has no effect, for the same reason.
§ 38. There
are other similar cases, some of which were mentioned in the preceding
book.
§ 39. Succession
to freedmen next demands our notice.
§ 40. Freedmen
were originally allowed to pass over their patron in their testamentary
dispositions. For by the law of the Twelve Tables the inheritance
of a freedman only devolved on his patron when he died intestate and
without leaving a self-successor. So if he died intestate leaving
a self-successor, the patron was excluded, which, if the self-successor
was a natural child, was no grievance; but if the self-successor was
an adoptive child or a wife in hand (manu), it was clearly hard that
they should bar all claim of the patron.
§ 41. Accordingly,
at a later period, the praetor’s edict corrected this injustice
of the law. For if a freedman makes a will, he is commanded to leave
a moiety of his fortune to his patron; and if he leaves him nothing,
or less than a moiety, the patron can obtain contra-tabular possession
of a moiety from the praetor. And if he die intestate, leaving as
self-successor an adoptive son or a wife in his hand or a son’s
wife in the hand of his son, the patron can obtain in the same way
against these self-successors intestate possession of a moiety from
the praetor. But the freedman is enabled to exclude the patron if
he leaves natural children, whether in his power at the time of his
death or emancipated or given in adoption, provided he leaves them
any portion of the inheritance, or that, being passed over in silence,
they have demanded contra-tabular possession under the edict; for,
if they are disinherited, they do not at all bar the patron.
§ 42. At
a still later period the lex Papia Poppaea augmented the rights of
the patron against the estate of more opulent freedmen. For by the
provisions of this statute whenever a freedman leaves property of
the value of a hundred thousand sesterces and upwards, and not so
many as three children, whether he dies testate or intestate, a portion
equal to that of a single child is due to the patron. Accordingly,
if a single son or daughter survives, half the estate is claimable
by the patron, just as if the freedman had died childless; if two
children inherit, a third of the property belongs to the patron; if
three children survive, the patron is excluded.
§ 43. In
respect of the property of freedwomen no wrong could possibly be done
to the patron under the ancient law: for, as the patron was statutory
guardian of the freedwoman, her will was not valid without his sanction,
so that, if he sanctioned a will, he either would be therein instituted
heir, or, if not, had only himself to blame: for if he did not sanction
a will and consequently the freedwoman died intestate, he was assured
of the inheritance, for she could leave no heres or bonorum possessor
who could bar the claim of the patron.
§ 44. But
when at a subsequent period, by the enactment of the lex Papia, four
children were made a ground for releasing a freedwoman from the guardianship
of her patron, so that his sanction ceased to be necessary to the
validity of her will, it was provided by that law that the patron
should have a claim to a portion of her estate equal to that of each
single child she might have at the time of her death. So if a freedwoman
left four children, a fifth part of her property went to her patron,
but if she survived all her children, the patron on her decease took
her whole property.
§ 45. What
has been said of the patron applies to a son of the patron, a grandson
by a son, a great-grandson by a grandson by a son.
§ 46. Although
a daughter of a patron, a granddaughter by a son, a great-granddaughter
by a grandson by a son have under the statute of the Twelve Tables
identical rights with the patron, the praetorian edict only calls
the male issue to the succession: but the lex Papia gives a daughter
of the patron a contra - testamentary or intestate claim against an
adoptive child, or a wife, or a son’s wife to a moiety of the
inheritance on account of the privilege of being mother of three children;
a daughter not so privileged has no claim.
§ 47. In
the succession to a testate freedwoman mother of four children, a
patron’s daughter, though mother of three children, is not,
as some think, entitled to the portion of a child: but, if the freedwoman
die intestate, the letter of the lex Papia gives her the portion of
a child; if the freedwoman die testate, the patron’s daughter
has the same title to contra-tabular possession as she would have
against the will of a freedman, that is, as the praetorian edict confers
on a patron and his sons in respect of the property of a freedman,
[viz. a claim to half against all but natural children] though this
portion of the law is carelessly written.
§ 48. It
is thus apparent that the external heirs of a patron are entirely
excluded from the rights which the law confers on the patron himself,
whether a freedman die intestate or it is a question of the freedman’s
will being set aside by the praetor in favour of the patron.
§ 49. Before
the lex Papia was passed, patronesses had only the same rights in
the property of their freedmen as patrons enjoyed under the statute
of the Twelve Tables: for neither did the praetor intervene to give
them a moiety of the inheritance by contratabular possession against
a will of an ungrateful freedman, nor by making a grant of possession
against the intestate claim of an adoptive child or a wife or a son’s
wife, as he did in the case of the patron and the patron’s son.
§ 50. But
subsequently by the lex Papia two children entitle a freeborn patroness,
three children a patroness who is a freedwoman, to nearly the same
rights as the praetor’s edict confers on a patron; and it also
provided that three children entitle a freeborn patroness to the same
rights which the statute itself conferred on a patron: but the statute
does not grant these latter rights to a patroness who is a freedwoman.
§ 51. As
to the successions of freedwomen who die intestate, no new right is
conferred on a patroness through the title of children by the lex
Papia; accordingly, if neither the patroness nor the freedwoman has
undergone a capitis deminutio, the law of the Twelve Tables transmits
the inheritance to the patroness, and excludes the freedwoman’s
children, even when the patroness is childless; for a woman, as before
remarked, can never have a self-successor: but if either of them has
undergone a capitis deminutio, the children of the freedwoman exclude
the patroness, because her statutory title having been obliterated
by capitis deminutio, the children of the freedwoman are admitted
by right of kinship in preference to her.
§ 52. When
a freedwoman dies testate, a patroness not entitled by children has
no right of contra-tabular possession: but a patroness entitled by
children has conferred upon her by the lex Papia the same right to
a moiety by contra-tabular possession as the praetorian edict confers
on the patron to the inheritance of a freedman.
§ 53. By
the same law a patroness’s son privileged by having children
has almost the rights of a patron [patroness?], but in this case one
son or daughter is sufficient to give him the privilege.
§ 54. This
summary indication of the rules of succession to freedmen and freedwomen
who are Roman citizens may suffice for the present occasion: a more
detailed exposition is to be found in my separate treatise on this
branch of law.
§ 55. We
proceed to the successions of Latini Juniani.
§ 56. To
understand this branch of law we must recollect what has been already
mentioned (1, § 22), that those who are called Latini
Juniani were originally slaves by law of the Quirites, though maintained
by the praetor’s protection in a condition of de facto freedom,
so that their possessions belonged to their patrons by the title of
peculium. At a more recent period, when the lex Junia was enacted,
those whom the praetor had protected in de facto freedom became legally
free, and were called Latini Juniani: Latini, because the law intended
to assimilate their freedom to that of freeborn citizens of Rome who,
on quitting Rome for a Latin colony, became Latin colonists; Juniani,
because their liberty was due to the lex Junia, although it did not
make them Roman citizens: and as the author of the lex Junia foresaw
that the effect of this fiction of their being on the same footing
as Latini coloniarii would be that the goods of deceased Latini Juniani
would cease to belong to the patron, since not being slaves at the
time of their death, their goods would not belong to the patron by
right of peculium, nor could the goods of a Latin colonist devolve
on him by title of manumission; he deemed it necessary, to prevent
the favour to these freedmen from becoming a wrong to the patron,
to provide that their goods should belong to the manumitter in the
same way as if the law had not been enacted. Consequently by that
enactment the property of Latini Juniani belongs to their manumitters
as if it were by right of peculium.
§ 57. Accordingly
there are wide differences between the title to the property of Latini
Juniani under the lex Junia and the title to the inheritance of freedmen
who are Roman citizens.
§ 58. When
a freedman, who is a Roman citizen, dies, an external heir of the
patron has no claim to his inheritance, while a son of the patron,
a grandson by a son, a great-grandson by a grandson by a son, have
an indefeasible claim even if disinherited by their parent; whereas,
when a Latinus Junianus dies, his property belongs to his patron’s
external heir, like the peculium of a slave, and does not belong to
the manumitter’s children who are disinherited.
§ 59. Thus
the inheritance of a freedman, who is a Roman citizen, belongs to
two or more patrons in equal portions, in however unequal proportions
they had been his proprietors; whereas the goods of a Latinus Junianus
belong to his patrons according to their shares in him when he was
a slave.
§ 60. Again,
in the succession to a freedman who is a Roman citizen, one patron
bars another patron’s son, and a son of one patron bars another
patron’s grandson; whereas the goods of a Latinus Junianus belong
jointly both to a patron and another patron’s heir, the latter
taking the share which would have belonged to the manumitter he represents.
§ 61. If
one patron leave three children, and another patron one, the inheritance
of a freedman who was a Roman citizen is divided by the number of
individuals (in capita); that is to say, every one takes an equal
portion; whereas the goods of a Latinus Junianus belong to those who
succeed in the proportion in which they would have belonged to the
manumitters they represent.
§ 62. If
one patron renounce his part in the inheritance of a freedman who
was a Roman citizen, or die before formal acceptance (cretio), the
whole inheritance belongs to the other; but the share of the property
of a Latinus Junianus which a patron fails to take is caducous and
belongs to the people (aerarium).
§ 63. At
a later period, when Lupus and Largus were consuls, the senate decreed
that the goods of a Latinus Junianus should belong in the first place
to the manumitter, in the next to such issue of the latter as are
not individually disinherited, in the order of their proximity, and,
in default of these, by the ancient law of devolution, to the heirs
of those manumitting them.
§ 64. The
effect of this senatusconsult is, according to some authorities, that
the goods of a Latinus Junianus devolve in the same way as the inheritance
of a freedman who was a Roman citizen, and this was the doctrine of
Pegasus: but this opinion is clearly erroneous, for the inheritance
of a freedman who is a Roman citizen never belongs to an external
heir of his patron; whereas the goods of a Latinus Junianus, by the
express terms of the senatusconsult, in default of children of the
manumitter devolve on his external heir. Again, in the case of the
inheritance of a freedman who was a Roman citizen, the children of
the manumitter are not injuriously affected by any form of disinheritance;
whereas Latini Juniani, in respect of their goods, are injured by
individual disinheritance according to the very terms of the senatusconsult.
§ 64 a. The
only true effect, then, of the senatusconsult is, that the manumitter’s
children in the absence of individual disinheritance are preferred
to external heirs.
§ 65. Accordingly,
an emancipated son of the patron who is passed over in silence by
his father, though he makes no demand for contra-tabular possession,
is nevertheless preferred to an external heir in respect of the goods
of a Latinus Junianus.
§ 66. Again,
a daughter and other self-successors who can be disinherited at civil
law in a mass (inter ceteros) and thereby effectively deprived of
the inheritance of their parent, in respect of the goods of a Latinus
Junianus, unless they are individually (nominatim) disinherited, have
priority over an external heir.
§ 67. Children,
too, although they have abstained from the inheritance of their parent,
are entitled to the goods of his Latinus Junianus in spite of their
abstention, because they cannot be said to have been disinherited
any more than children who are passed over by a testator in silence.
§ 68. From
all these points it is sufficiently apparent that he who makes a Latinus
Junianus....
§ 69. This
also seems to be established, that if a patron has instituted his
children as his sole heirs but in unequal portions, the property of
a Latin belongs to them in the same unequal proportions, because in
the absence of an external heir the senatusconsult has no application.
§ 70. If
the children of the patron are left joint heirs with a stranger, Caelius
Sabinus holds, that the entire goods of a Latinus Junianus devolve
in equal portions on the children, because when an external heir intervenes
he is brought within the senatusconsult instead of the lex Junia.
According to Javolenus, only that part will devolve under the senatusconsult
in equal portions on the children of the patron, which, before the
senatusconsult was passed, the external heir would have been entitled
to under the lex Junia, and the residue will belong to them in the
proportion of their shares in their father’s inheritance.
§ 71. It
is a further question, whether this senatusconsult extends to descendants
(liberi) of the patron born of a daughter or granddaughter of a patron,
that is whether in respect of the goods of a Latinus Junianus a grandson
by a daughter will be preferred to an external heir. Again, it is
a question whether a Latinus Junianus belonging to a mother is within
the senatusconsult, that is, whether in respect of the goods of a
Latinus Junianus, manumitted by a mother, preference is given to the
patroness’ son over her external heir. Cassius held that both
cases are within the scope of the senatusconsult; but his opinion
is generally rejected on the ground that the senate could not contemplate
the benefit of patronesses’ sons; persons, that is, in another
civil family to that of the manumitter; and this appears to be the
true interpretation of the senatusconsult from its making individual
disinheritance a bar; for herein the senate appears to contemplate
those who must be disinherited by their parent if they are not instituted.
Now a mother need not disinherit her child, nor a mother’s father
a grandchild, in default of institution, whether we look to the civil
law or to that part of the praetorian edict which promises contra-tabular
possession to children passed over by a testator in silence.
§ 72. Sometimes
a freedman, who is a Roman citizen, dies as a Latinus Junianus; for
instance, a Latinus Junianus who has obtained an imperial grant of
citizenship, reserving the rights of his patron: for by a constitution
of the emperor Trajan a Latinus Junianus who obtains an imperial grant
of citizenship against the will or without the knowledge of his patron
resembles during his lifetime other freedmen who are Roman citizens,
and procreates lawful children, but dies with the status of a Latinus,
so that his children are not his heirs; and has only this amount of
testamentary capacity that he may institute his patron heir, and name
a substitute to him in case of his renouncing the inheritance.
§ 73. But
as the effect of this constitution seemed to be, that such a person
could never die as if he were a Roman citizen, even though he subsequently
acquired the title to which the lex Aelia Sentia or the senatusconsult
(1, § 31) annexes the right of Roman citizenship, the
emperor Hadrian, to mitigate the harshness of the law, caused to be
passed a senatusconsult, that a freedman, who obtained from the emperor
a grant of citizenship without the knowledge or contrary to the will
of his patron, on subsequently acquiring the title to which the lex
Aelia Sentia or the senatusconsult, if he had remained a Latinus Junianus,
would have annexed the rights of Roman citizenship, should be deemed
to be in the same position as if he had acquired Roman citizenship
by the title of the lex Aelia Sentia or the senatusconsult.
§ 74. The
property of those who under the lex Aelia Sentia are counted as if
they were surrendered enemies devolves on their patrons sometimes
as if they were freedmen who had Roman citizenship, sometimes as if
they were Latini Juniani.
§ 75. For
the goods of those of them who, but for some offence, would have obtained
on manumission Roman citizenship are given by this statute to their
patrons like freedmen who became Roman citizens by the provision of
the above-mentioned statute; but, according to the prevalent and better
opinion, they cannot make a will; for it seems incredible that the
most abject order of freedmen should have been intended by the legislator
to enjoy the power of testamentary disposition.
§ 76. But
the goods of those who, but for some offence, would have become on
manumission Latini are assigned to their patrons as if they were the
goods of Latini, though, as I am aware, the legislator has not expressed
his intention in this matter in terms as unequivocal as might be desired.
§ 77. We
next proceed to succession of a vendee arising from the purchase of
a debtor’s entire property.
§ 78. The
entire property of a debtor may be sold either in his lifetime or
after his death. It is sold in his lifetime when, for instance, he
defrauds his creditors by absconding, and is absent and undefended,
or when he avails himself of the lex Julia and makes a voluntary surrender
of his estate, or when, after judgment recovered against him, he has
suffered the term to expire that is prescribed, partly by the Twelve
Tables, partly by the edict of the praetor, for the satisfaction of
a judgment debt. A debtor’s estate is sold after his death when
it is certain that he has left neither an heir, nor a praetorian representative,
nor any other lawful successor.
§ 79. If
the bankrupt whose estate is to be sold is alive, an order issues
from the praetor, and his estate is possessed and advertised for sale
for thirty continuous days; if the debtor is dead, it is possessed
and advertised for fifteen days. After this delay a second order issues
from the praetor, directing the creditors to hold a meeting and elect
out of their number a manager, by whom the estate may be sold. And
after the expiration of the ten days next following, if the debtor
is alive, or of five if he is dead, a third order issues from the
praetor, under which the sale of the property is held. Thus after
the expiration of forty days if the debtor is alive, after the expiration
of twenty if he is dead, his universal estate is transferred by the
creditors under the praetor’s order to the purchaser. The longer
delay prescribed for the sale of the estate of a living debtor is
founded on the greater consideration due to the living than to the
dead, and is designed to protect a living debtor from having his property
sold too easily.
§ 80. Neither
a praetorian successor nor a purchaser of a debtor’s entire
property acquires plenary, but only bonitarian, ownership. Quiritarian
ownership is only acquired by usucapion, though sometimes a purchaser
of a debtor’s entire property cannot even acquire by usucapion
(for instance, when a peregrinus is bonorum emptor).
§ 81. Debts
owed to or by the person from whom the property is derived are not
owed to or by the praetorian successor or purchaser of a debtor’s
entire property, but are recoverable by fictitious forms of action,
which will be explained hereafter [4, § 34].
§ 82. There
are other kinds of universal succession not governed by the law of
the Twelve Tables nor by the praetor’s edict, but by rules of
consuetudinary law.
§ 83. When
a paterfamilias gives himself in adoption, or a woman subjects herself
to hand, all their property, incorporeal and corporeal, and all debts
due to them, are acquired by the adoptive father and the fictitious
purchaser, excepting such rights as are extinguished by loss of status
— usufruct, for instance, bounden services of freedmen secured
by oath, and claims in respect of which there has been joinder of
issue in a statutory trial.
§ 84. Conversely,
the debts of the person who gives himself in adoption or of the woman
who becomes subjected to hand (manus), do not pass to the fictitious
purchaser (coemptionator) or adoptive father, unless they are hereditary
debts, for in this case as the adoptive father or coemptionator are
heredes instead of the persons made subject to them, they become directly
liable, while the person adopted and woman sold into subjection are
released from liability by ceasing to be heredes; but if the debt
was owed in their own name, their adoptive father or fictitious purchaser
incurs no liability, nor do the person adopted and woman subject to
hand remain even themselves liable at civil law, their liability being
extinguished by their capitis deminutio: a praetorian action, however,
based on a feigned rescission of their capitis deminutio (4, § 38),
is granted to the creditors against them, and if the action is not
defended the property which would have belonged to them but for their
capitis deminutio is allowed by the praetor to be all sold by the
creditors.
§ 85. If
a person who is entitled to succeed as agnate to an intestate, before
declaring his formal acceptance or informally acting as heir, surrender
the inheritance by in jure cessio, the inheritance (hereditas) passes
to the surrenderee exactly as if he were called to it by the law of
the Twelve Tables itself. But if the agnate first accepts and then
surrenders, he nevertheless continues to be heir, and remains liable
to the creditors for the debts of the deceased: in this case the corporeal
objects of the inheritance pass to the surrenderee just as if they
had been separately surrendered (res singulae), but the debts of the
inheritance are thereby extinguished, the debtors gaining the advantage
of being discharged of liability.
§ 86. The
same happens when an heir instituted in a will accepts and then surrenders,
but before acceptance his surrender is inoperative.
§ 87. Whether
a self- and necessary successor passes the succession by such a surrender
is a question. According to my school the surrender is in this case
inoperative: the other school think that the effect is the same as
when the voluntary heirs surrender after acceptance, and that it makes
no difference whether a man is heir by legal necessity on the one
hand or by formal acceptance or informal acts of heirship on the other.
§ 88. We
proceed to treat of obligations, which fall into two principal classes,
obligations created by contract and obligations created by delict.
§ 89. We
first treat of those which we founded on contract, which are of four
orders, for contract is concluded by delivery of a thing, by words,
by writing, or by consent.
§ 90. Of
real contracts, or contracts created by delivery of a thing, we have
an example in loan for consumption, or loan whereby ownership of the
thing lent is transferred. This relates to things which are estimated
by weight, number, or measure, such as money, wine, oil, corn, bronze,
silver, gold. We transfer ownership of our property in these on condition
that the receiver shall transfer back to us at a future time, not
the same things, but other things of the same nature: and this contract
is called Mutuum, because thereby meum becomes tuum.
§ 91. The
receiver of what was not owed from a person who pays in error is also
under a real obligation, for he may be sued by Condictio with the
formula: ‘If it be proved that he ought to convey.’ just
as if he had received the property in pursuance of a loan. And, accordingly,
some have held that a ward or female, if their guardian has not authorized
them to receive a payment, are not liable to be sued for money paid
in error any more than they are for money received as a loan. This,
however, is a mistake, as the obligation in this case seems to be
of a kind not arising from contract, as a payment in order to discharge
a debt is intended to extinguish an obligation, not to establish one.
§ 92. A
verbal contract is formed by question and answer, thus: ‘Dost
thou solemnly promise that a thing shall be conveyed to me?’
‘I do solemnly promise.’ ‘Wilt thou convey?’
‘I will convey.’ ‘Dost thou pledge thy credit?’
‘I pledge my credit.’ ‘Dost thou bid me trust thee
as guarantor?’ ‘I bid thee trust me as guarantor.’
‘Wilt thou perform?’ ‘I will perform.’
§ 93. The
formula, ‘Wilt thou solemnly promise?’ ‘I will solemnly
promise,’ is only valid between Roman citizens; the others belong
to gentile law, and bind all parties, whether Romans or aliens, and,
if understood, bind Romans when expressed in Greek, and aliens when
expressed in Latin. The formula, ‘Wilt thou solemnly promise
(dare spondes)?’ is so peculiarly Roman that it cannot be expressed
in Greek, though the word ‘spondes’ is said to have a
Greek origin.
§ 94. According
to some, there is one case in which an alien may be bound by this
word, namely, when a Roman emperor in concluding a treaty thus interrogates
a foreign sovereign: ‘Art thou sponsor for peace?’ and
the Roman emperor is interrogated in the same way in his turn. But
this is a refinement on the law, for the violation of a treaty is
not redressed by an action ex stipulatu but by the law of war.
§ 95. (It
may be questioned whether if the question is in the form ‘Dost
thou solemnly promise?’ and the answer to it is simply, ‘I
promise,’ or ‘I will give,’ any legal obligation
is created.)
§ 95 a. (There
are also other obligations which can be contracted without any antecedent
question, as when a woman makes a solemn declaration settling dotal
property, movable or immovable, on her betrothed or her husband. And
not only can the woman herself be bound in this form, but also her
father and her debtor, the latter having to declare that he owes the
debt to her future husband as dower. It is only by these three persons
that a woman can be legally bound by such a formal promise of dower
without any antecedent form of question. Other persons who promise
a man dower for a woman can only be made liable in the ordinary legal
way, that is, by responding to a question and promising what has been
put to them in the form of a stipulation.
§ 96. There
is another case in which an obligation is contracted by a declaration
of one of the parties without any previous interrogation, which is
when a freedman takes an oath to his patron promising some payment
or performance of some function or service, the obligation being created
in this case not so much by the form of words as by the sanctity attaching
to the oath. This is the only instance in Roman law of an obligation
being contracted by means of an oath, though if we searched the particular
laws of foreign communities, other instances might be found.)
§ 97. If
we stipulate that something is to be conveyed to us which cannot be,
the stipulation is void; for instance, if a man stipulates for the
conveyance of a freeman whom he supposes to be a slave, or of a dead
slave whom he supposes to be alive, or of ground devoted to the celestial
or infernal gods which he supposes to be subject to human law.
§ 97 a. Or
again if a man stipulates for a thing incapable of existing, such
as a hippocentaur, the stipulation is void.
§ 98. An
impossible condition, that the promisee, for instance, should touch
the sky, makes the stipulation void, although a legacy with an impossible
condition, according to the authorities of my school, has the same
effect as if no condition were annexed. According to the other school
it is as null and void as if it were a stipulation, and in truth no
satisfactory reason can be alleged for making a distinction.
§ 99. So
when a person stipulates by mistake that his own property shall be
conveyed to himself, the stipulation is null and void, for what already
belongs to a man, cannot be conveyed to him.
§ 100. A
stipulation to convey after the death of the promisee or promisor
is invalid, but a stipulation to convey at the death, that is, at
the last moment of the life of the promisee or promisor, is valid.
For it has been held anomalous to make the heir of either of the contracting
parties the first subject of the obligation. Again, a stipulation
to convey on the day before the death of the promisee or promisor
is invalid, for the day before the death cannot be ascertained till
after death, and after death the stipulation has a retrospective effect,
and amounts to a promise to convey to the promisee’s heir, which
is void.
§ 101. What
is said of death must also be understood of capitis deminutio.
§ 102. Another
cause of nullity is the want of correspondence between the question
and answer; if I stipulate, for instance, for ten sestertia and you
promise five, or if you meet my absolute stipulation by a conditional
promise.
§ 103. No
valid stipulation can be made to convey a thing to a third person
to whose power the stipulator is not subject, whence the question
has been mooted to what extent a stipulation in favour of the stipulator
and such a stranger to the contract is valid. My school hold that
it is valid for the whole amount stipulated, and that the stipulator
is entitled to the whole, just as if the stranger had not been mentioned.
The other school hold that he is only entitled to one moiety, and
that the stipulation is of no effect as to the other.
§ 103 a. It
is a different case if you promise to convey something to me or Titius,
for then the whole is due to me, and I alone can sue on the stipulation,
though the debt may be discharged by payment to Titius.
§ 104. No
valid stipulation can be made between a person under power and the
person to whom he is subject. In fact a slave, a person in domestic
bondage (mancipium), a daughter of the family and a wife subjected
to the hand of a husband, can incur an obligation neither to the person
in whose power or mancipium they are, nor to any other person.
§ 105. The
dumb cannot stipulate or promise, nor can the deaf, for the promisee
in a stipulation must hear the answer, and the promisor must hear
the question.
§ 106. A
lunatic cannot enter into any transaction because he does not understand
what he is doing.
§ 107. A
ward can enter into any transaction provided that he has his guardian’s
sanction when necessary, as it is for his incurring an obligation
for himself, although not for his imposing an obligation on another.
§ 108. The
same rule applies to women who are wards.
§ 109. But
what we have said about a pupil is of course only true of one who
has some understanding: for infants and those who are bordering on
infancy do not differ much from insane persons, not being capable
of judging for themselves; nevertheless, when they will benefit by
the transaction, a more accommodating interpretation is put on the
law.
§ 110. Although
another person cannot stipulate for us, yet in our stipulations we
can associate with ourselves another person who stipulates for the
same performance, and is called an adstipulator.
§ 111. He
can sue as well as the stipulator, and payment to him discharges the
debtor as well as payment to the stipulator, but whatever he recovers,
the action of mandate compels him to hand over to the stipulator.
§ 112. The
adstipulator need not employ the same terms as the stipulator; if
the one says, ‘Art thou sponsor for the conveyance?’ the
adstipulator may say, ‘Dost thou for the same pledge thy credit?’
or, ‘Dost thou for the same bid me trust thee?’ or vice
versa.
§ 113. He
may contract for less than the stipulator, but not for more. Thus,
if I stipulate for ten sestertia he may stipulate for five, or if
I stipulate absolutely he may stipulate conditionally, but not vice
versa. More and less is to be understood of time as well as of quantity,
immediate payment being more, and future payment being less.
§ 114. In
this institution there are some exceptional rules. The heir of the
adstipulator cannot sue; a slave cannot be adstipulator, though in
any other circumstance his stipulation acquires a right for his master;
moreover it is the prevalent opinion that a person in domestic bondage
cannot be adstipulator, because he is likened to a slave; a son in
the power of his father can be adstipulator, but does not acquire
a right for his father, as in all other stipulations, and he himself
has no right of action until, without capitis diminutio, he ceases
to be subject to his father, as by his father’s death, or by
being inaugurated priest of Jupiter. The same is true of a filiafamilias
and a wife in the manus of her husband.
§ 115. For
the promisor, similarly, other persons are bound, who are called sponsors
or fidepromissors or fidejussors.
§ 116. A
sponsor is thus interrogated: ‘Art thou for the same payment
sponsor?’ a fidepromissor thus: ‘Dost thou for the same
pledge thy credit (fidei-promittis)?’ a fidejussor thus: ‘Dost
thou the same guarantee (fide tua jubes)?’ We shall have to
consider the question what is the proper name for those who are thus
interrogated: ‘Wilt thou convey the same? Dost thou promise
the same? Wilt thou do the same?’
§ 117. Sponsors
and fidepromissors and fidejussors are often employed to provide additional
security for a debt; an adstipulator is generally only employed by
us to secure payment after our death. Our own stipulation for this
purpose is void, and therefore we associate with ourselves an adstipulator,
in order that he may sue on the contract after our death, but he is
compelled by an action of mandate to hand over to our heir whatever
he recovers.
§ 118. The
rules which govern the sponsor and fidepromissor are similar, and
very unlike those which govern the fidejussor.
§ 119. For
the former are accessory to none but verbal contracts, and are sometimes
even liable when the principal promisor himself is not so, as, for
instance, when a woman or ward contracts without her guardian’s
sanction, or when a person promises a payment after his own death.
But it is a moot question when a slave or alien promises by the term
spondeo, whether his sponsor or fidepromissor is effectively bound.
§ 119 a. A
fidejussor, on the other hand, may be accessory to any obligations,
whether real, verbal, literal, or consensual, and whether civil or
natural. So that he may even be bound for the obligation of a slave
either to a stranger or to his own master; and this is the case whether
it is a stranger who accepts a fidejussor for the slave, or whether
it is the master himself who does so for a debt due from his slave
to him.
§ 120. Again,
the heir of the sponsor or fidepromissor is not bound by the guaranty,
unless it is the heir of an alien fidepromissor in whose city (civitas)
such a rule prevails; but the fidejussor’s heir is always bound.
§ 121. Again,
a sponsor and fidepromissor, by the lex Furia, at the end of two years
are discharged of obligation, and whatever is the number of these
kinds of sureties at the time when payment of the debt is due, the
total obligation is divided into as many parts; and each surety is
only liable for a single part. Fidejussors, on the other hand, are
liable for ever, and, however many of them there are, each is liable
for the whole amount of the debt, the creditor being thus entitled
to sue whichever he chooses for the whole. But now by the letter of
Hadrian of sacred memory he can only recover from each of the fidejussors,
who are solvent at the time an aliquot part of the debt. Thus the
letter of Hadrian of sacred memory differs from the lex Furia in this
respect, that the insolvency of one sponsor or fidepromissor does
not increase the liability of the remainder, whereas if only one of
several fidejussors is solvent, he has to bear the whole burden.
§ 121 a. But
as the lex Furia only applies to Italy, it follows that in the provinces,
sponsors and fidepromissors, like fidejussors, are liable for ever,
and each would be liable for the whole amount, unless they are also
partly relieved by the letter of Hadrian.
§ 122. Moreover,
between sponsors and fidepromissors the lex Appuleia introduced a
sort of partnership, for under this law any one of them who has paid
more than his share is given an action to recover the excess from
the others. The lex Appuleia was passed before the lex Furia, at a
time when each sponsor and fidepromissor was liable for the whole
amount; and hence it is questioned whether, since the lex Furia was
passed, the benefit of the lex Appuleia still exists. Outside Italy
it undoubtedly does; for the lex Furia is only in force in Italy,
while the lex Appuleia extends also to the remaining provinces; but
whether the benefit of the lex still continues in Italy is much disputed.
Fidejussors are not governed by the lex Appuleia; accordingly, if
one fidejussor pay the whole amount, he alone suffers by the insolvency
of the principal; however, as was said above, a fidejussor sued for
the whole amount may by the letter of Hadrian, if he chooses, require
the claim to be reduced to his ratable portion.
§ 123. Further,
the lex Cicereia provides that a creditor who obtains the guaranty
of sponsors and fidepromissors shall previously announce and declare
to them the amount of the debt to be guaranteed and the number of
sponsors or fidepromissors by whom it is to be guaranteed; and in
the absence of such declaration the sponsors or fidepromissors are
permitted within thirty days to demand a preliminary trial of the
issue (praejudicium), whether the requisite declaration was made;
and on judgment that it was not made they are discharged of liability.
The law makes no mention of fidejussors, but it is usual in a guaranty
by fidejussors to make a similar declaration.
§ 124. But
the benefit of the lex Cornelia is available for all sureties, which
forbids the same person to be surety for the same debtor to the same
creditor in the same year for more than twenty thousand sesterces
of credita pecunia; and if a sponsor or fidepromissor guarantees
a larger sum, for instance, one hundred thousand sesterces, he can
only be condemned in twenty thousand sesterces. Pecunia credita for
purposes of the statute is said to include, besides a present loan,
everything which at the time of entering into the suretyship is certain
to be due, that is, which depends on no contingency. Accordingly,
it includes money stipulated to be paid on a future day; because it
is certain that such money will be due, although an action to recover
it cannot be brought till a future time. But pecunia in this
law includes everything, so that, if we stipulate for the conveyance
of wine, or corn, or land, or a slave, the lex Cornelia applies.
§ 125. In
some circumstances, however, the law permits a surety to be bound
for an indefinite amount, as security for dower, for instance, or
for that which is due under a will, or by judicial order. Also the
lex Julia, imposing a duty of one twentieth on testamentary successions,
provides that the securities therein required shall be excepted from
the scope of the lex Cornelia.
§ 126. The
rights of sponsors, fidepromissors, and fidejussors are also equal
in respect of the rule that they cannot be bound for more than their
principal. They may, however, be bound for less, just as the adstipulator
may stipulate for less. For their obligation, like that of the adstipulator,
is an accessory of the principal obligation, and the accessory cannot
be greater than the principal.
§ 127. They
further resemble in this, that whoever pays for the principal can
recover the amount from him by action of mandate. Sponsors by the
lex Publilia have an additional remedy, being able, unless reimbursed
in six months, to recover twice the sum advanced by the action on
money paid by a sponsor.
§ 128. Literal
contracts, or obligations created by writing, are made by transcriptive
entries of debit or credit in a journal. Transcriptive entries are
of two kinds, either from thing to person or from person to person.
§ 129. Transcription
from thing to person is made when the sum which you owe me on a contract
of sale or letting or partnership is debited to you in my journal
as if you had received it as a loan.
§ 130. Of
transcription from person to person we have an example when the sum
which Titius owes me is entered in my journal as debited to you, assuming
that you are indebted to Titius and that Titius has substituted me
for himself as your creditor.
§ 131. Transcriptive
entries differ from mere entries of a person as debtor to cash; here
the obligation is not Literal but Real, for it is invalid unless money
has been actually paid, and payment of money constitutes a Real obligation.
Consequently the entry of a person as debtor to cash does not constitute
an obligation, but is evidence of an obligation.
§ 132. Accordingly,
it is not correct to say that debits to cash (arcaria nomina) bind
aliens as well as citizens, because it is not the entry in the journal
but the payment of money that constitutes the contract, a mode of
obligation which belongs to jus gentium.
§ 133. Whether
transcriptive debits form a contract binding on aliens has been doubted
with some reason, for this contract is an institution of civil law,
as Nerva held. Sabinus and Cassius, however, held that transcription
from thing to person forms a contract binding on an alien, though
not transcription from person to person.
§ 134. Another
Literal obligation is that created by chirographa and syngraphae, or
written acknowledgements of debt or promises to pay, unaccompanied by
stipulation. This mode of contract is proper to aliens.