The invalidity can be either total or partial. Total invalidity occurs constantly when the transaction is invalid in its essential contents. Paul. Cum principalis causa non consistat, plerumque ne ea quidem, quae sequuntur locum habent.-D. 50, 17, 178.1 Partial invalidity can relate either to matter not BOOK I. Chapter 1. essential to the transaction," or to the scope of its a Eg., § 19: dies; object, Pomp.: Si vir uxori vel contra quid vendiderit : Marcian. Placuit, sive supra statutum modum quis usuras stipulatus fuerit, sive usurarum usuras, quod illicite adiectum est pro non adiecto haberi et licitas peti posse.-D. 22, 1, 29.3 Ulp. Non solent, quae abundant, vitiare scripturas.-1. 94, D. de R. J.a In bilateral transactions, again, it may relate merely to one of the contracting parties personally; which are so-called halting' transactions (negotium claudicans). Ulp. Si quis a pupillo sine tutoris auctoritate emerit, ex uno latere constat contractus; nam qui emit, obligatus est pupillo, pupillum sibi non obligat.—D. 19, 1, 13, 29.5 When the chief subject does not exist, as a rule the things which with it have no recognition also. go ་ § 102: lex commíssoria. If a man have sold something to his wife, or the converse, for an actual sum, and they should [then] agree to treat it as a present, that the vendor should not perform aught on that account... the better opinion is that only the agreement is void. * It has been settled if any one have stipulated for interest beyond the legal rate or for compound interest, that what has been added irregularly shall be considered as not added, and the legitimate interest can be sued for. 4 utile per in utile non vi tiatur.' That which is superfluous in documents does not usually mar their effect. * If anybody have purchased from a ward without the autho BOOK I. Chapter 1. a See Markby, 88. 280-290. die Röm. Chro pp. 8-54, 279, sq. Mommsen, § 22. LEGAL SIGNIFICATION OF TIME." Time comes into consideration repeatedly as influencing the operation of juristic acts, and as being an essential factor in the commencement and termination of rights. In this, it is generally a question of the space of time or term within which something must happen, or during which a definite course of action or inaction must continue, or a state of things must exist. The fixing of such spaces of time depends upon the Calendar, ie, the civil division of time into years, months, days, and hours, which rests upon astronomical Th. Mommsen, principles. The year of the Romans was originally, in nologie, 2. Aufl. accordance with the Calendar of Numa, of twelve 1859, especially months and 355 days, with twenty-two or twentythree days intercalated every two years after February According to 23,d which with the five last days of February together formed a special month 'mens intercalaris,' 'Mercedonius.' In certain cases, especially involving terminal payments, thinks this was the so-called year of Romulus, of ten months and 304 days, was the basis of the calculation: it was formed from 12 of the solar year containing 365 days. But the Julian Calendar fixed the year at 365 days with Cf. §§106, 147. one day intercalated every four years, between FebruAccording to ary 23 and 24f which, however, forms juristically but tween the 24th one day-called 'bissextum '—with that last mentioned. regularly twenty-two. d Mommsen sometimes after Feb. 23, at other times after the 24th day. Mommsen, be and the 25th. Thus 23 Feb. d. vii. Kal. Martias (Terminalia). 24 d. vi. poster. Kal. Mart. (dies intercal.) bissextum s. 25 (24) d. vi. prior Kal. Mart. [dies bissextilis. (Regifugium) 26 (25) d. v. Kal. Mart. According to Mommsen, the 24th is d. vi. prior, the 25th d. vi. post (interc.). rity of his guardian, it is well-established law that there is a contract affecting the one party; for the purchaser is under obligation to the pupil, the pupil does not bind himself. : Cels. Cum bissextum kalendas est, nihil refert utrum priore an posteriore die quis natus sit, et deinceps sextum kalendas eius natalis dies. est, nam id biduum pro uno die habetur; sed posterior dies intercalatur non prior: ideo quo anno intercalatum non est sexto kalendas natus, cum bissextum kalendas est, priorem diem natalem habet. § 1. Cato putat, mensem intercalarem additicium esse, omnesque eius dies pro momento temporis observat, extremoque diei mensis Februarii attribuit Quintus Mucius. § 2. Mensis autem intercalaris constat ex diebus viginti octo. -D. 50, 16, 98.1 BOOK I. Chapter 1. The divisions of time occurring in legal dealings are essentially similar to those contained in the Calendar, but have not, like them, fixed but movable points of commencement and termination. Thus the movable month and day is a period of thirty days and twentyfour hours respectively, without restrictions as to the point of commencement; a whilst the Calendar months, a E.g., 5.15 P. M. ie., those parts of the year with definite designations, 5.15 P.M. on are of unequal length, and the Calendar day, or 'dies civilis,' constantly runs from midnight to midnight. Paul. More Romano dies a media nocte incipit et sequentis noctis media parte finitur; itaque quidquid in his viginti quattuor horis i.e. duabus dimidiatis noctibus, et luce media actum est, 1 When there is the double sixth day before the first day [of March], it matters not whether a person was born on the first or on the second day, and afterwards the sixth day before the first [of March] is his birthday; for those two days are regarded as one, but the second day is intercalated, not the first. And so he that was born on the sixth day before the first [of March] a year in which there is no intercalation has the first day as his birthday in a leap year. Cato is of opinion that the intercalated month is an additional one, and he takes all its days for a moment of time, and Quintus Mucius assigns it to the last day of the month of February. But the intercalated month consists of twenty-eight days. in I а on June 4th to June 5th. BOOK I. Chapter 1. a E.g., the year beginning on Jan. 1st, 1885, at 2 P.M. runs out on Jan. 1st, perinde est, quasi quavis hora lucis actum esset. -D. 2, 12, 8.' In the calculation of a period of time a distinction is made between 'natural' and 'civil' computation. By the first is meant exact, mathematical reckoning, a momento ad momentum;'a by the latter that which is usual in common life, the Day being treated as the smallest division of time. In civil computation the 1886, at 2 P.M. calculation is made according to whole (calendar) days; and indeed the day-without regard to the hour -on which the period of time begins, is constantly reckoned in as a complete one. The point of termination admits of a twofold reckoning, because sometimes the Dies ultimus last day, that has begun, of the period of time is completo habe- reckoned in, sometimes only that which is fully run out. Thus, according to the shorter civil computation, the year beginning January 1st, 1885, runs out at midnight of December 30-31; but according to the longer at midnight of Dec. 31st, 1885-Jan. 1st, 1886. coeptus pro tur,' The Romans employ the shorter civil computation when it is a question of the commencement of a right by lapse of time, and so for the acquisition of a right by continuance of a positive condition during a definite period, or for the acquisition of juristic capacity by the attainment of a certain age. Paul. Anniculus non statim ut natus est, sed trecentesimo sexagesimo quinto die dicitur, incipiente plane non exacto die, quia annum civiliter non ad momenta temporum, sed ad dies numeramus.-D. 50, 16, 134.9 Ulp. A qua aetate testamentum vel masculi 1 According to Roman custom the day begins from midnight, and ends with the following midnight; so that all that is done in these four and twenty hours, i.e., two half nights and the intermediate day, is just as though it were done by day. 2 A child is called a year old, not immediately it is born, but on the 365th day, indeed at the very beginning, not at the finish, of the day, because we reckon the year for civil purposes, not by single moments of time, but by days. vel feminae facere possunt, videamus. Verius Id.: In usucapionibus non a momento ad momentum, sed totum postremum diem computamus ;— ideoque qui hora sexta diei kalendarum Januarium possidere coepit, hora sexta noctis pridie kalendas Iarias implet usucapionem.-D. 41, 3, §§ 6, 7.2 e longer is used when the termination of a right lapse of time, and accordingly inaction or delay during a definite period (e.g., limitation of actions, time in the steps of an action), comes into consideration. Paul. In omnibus temporalibus actionibus nisi novissimus totus dies compleatur, non finit obligationem.-D. 44, 7, 6.3 1 Let us now inquire what age is required in persons of the male or of the female sex for the making of a testament. It is more correct in the case of males to take the 14th, in the case of females the completed 12th year. But in order to be able to make a testament, must one already have passed the 14th year, or is it enough if one have just completed it? We may suppose the case of some one born on January 1st who has made his testament on his birthday— does it hold good? I affirm that it does. Moreover, I consider that it is good even if he have made it the day before January 1st, after midnight, for one supposes, according to the opinion of Marcianus, that he has at the time already completed the 14th year. * In prescriptions we do not reckon from moment to moment, but the last day as a whole one; he, therefore, who has begun possess at midnight of January 1st, completes the prescription at midnight of the last day of December. to 2 In no action limited by time does the obligation cease before the completion of the last day. BOOK I. Chapter 1. |