Воок І. Chapter II. The i. i. r. in the particular case was granted by the Praetor (or other superior magistrate) after the preliminary 'causae cognitio' by a decretum iudicium rescindens.' Mod. Omnes in integrum restitutiones causa cognita a praetore promittuntur, scilicet ut iustitiam earum causarum examinet, an verae sint, quarum nomine singulis subvenit.-1. 3, D. de I. I. R.' This grant itself can take place in two ways, according to the nature of the injury: either so that the decree at once re-establishes the former condition, and immediately cancels the prejudice that has accrued to some proprietary right, because, e.g., it enjoins upon the defendant compensation for it; or so that it orders a iudicium (restitutorium, rescissorium) in which the plaintiff shall be able to sue for the right claimed by him, but lost by the particular event, as though this had not happened (actio utilis-ficticia). Paul. Restitutio autem ita facienda est, ut unusquisque integrum ius suum recipiat. Itaque si in vendendo fundo circumscriptus restituetur, iubeat praetor emptorem fundum cum fructibus reddere et pretium recipere.-D. 4, 4, 24, 4.2 any other cause shall appear to me as lawful.' This clause has been necessarily subjoined to the Edict . . . as whenever equity makes reinstatement advisable, one will have to resort to this passage. . . . And in general it must be said that whenever a person is absent from bare necessity, not of his own accord, relief must be given him. Ay, and if some one should have been absent for an excusable cause, the praetor will have to consider whether relief should be afforded him. 1 All reinstatements are promised by the praetor after investigation of the matter, that is, his examination of the legality of those cases, whether they are true, in respect of which he relieves individuals. 2 But the reinstatement is effected in such way that every one recovers his normal position. If, accordingly, a person is to be reinstated who was deceived in the sale of landed estate, the praetor must order the purchaser to restore the estate with its produce and to take back the price. Ulp. Interdum autem restitutio et in rem datur minori, i.e. adversus rei eius possessorem, licet cum eo non sit contractum; utputa rem a minore emisti et alii vendidisti: potest desiderare interdum adversus possessorem restitui; ne rem suam perdat vel re sua careat, et hoc vel cognitione praetoria vel, rescissa alienatione, dato in rem iudicio.-1. 13, § 1 eod.' Gai. Si minor annis vigintiquinque sine causa debitori acceptum tulerit, non solum in ipsum, sed et in fideiussores . . . actio restitui debet.— 1. 27, § 2 eod." Paul. Si coactus hereditatem repudiem, duplici via praetor mihi succurrit, aut utiles actiones quasi heredi dando, aut actionem metus causa praestando.-D. 4, 2, 21, 6.3 The performance and execution of the i. i. r. consists in the most complete replacement attainable of the earlier condition. Imp. Sever. Qui restituitur in integrum sicut in damno morari non debet, ita nec in lucro: et ideo quidquid ad eum pervenit vel ex emptione vel ex venditione vel ex alio contractu, hoc debet restituere.-C. 2, 47 (48), l. un. pr. 1 But sometimes reinstatement even in rem is given to a minor, i.e., against the possessor of such thing, although he have not contracted with the same; e.g., you have bought something of a minor and sold it to another person: sometimes he can claim reinstatement as against the possessor, that he may not lose his thing or be deprived of his own property, and this either by a decision of the praetor or, after the cancelling of the conveyance, by a real action being given. 2 If any one who is not yet 25 years of age shall groundlessly have given his debtor a discharge, not only against himself, but also the sureties . . . an action ought to be given for reinstatement. If under pressure I refuse an inheritance, the praetor relieves me in two ways, either by giving me equitable actions as though I were heir, or by giving an action metus causa. ✦ He who is reinstated must not make a delay in respect of gain any more than of loss; and therefore he must restore BOOK I. Chapter II. BOOK I. Chapter II. § 31. MEANS OF ASSURING RIGHTS. In certain cases assurance of a right or of a future claim can be enforced by contract (cautio); such 'cautiones s. stipulationes necessariae' are to be distinguished from the 'voluntariae s. conventionales,' i.e., those which rest upon voluntary agreement. The prescription and imposition of such cautiones was vested only in the higher magistrates, especially the Praetor (praetoriae stipulationes), whose Edict contained standing formulae for them. Ulp. Praetoriarum stipulationum tres esse videntur species: iudiciales, cautionales, communes. § Cautionales sunt autem quae instar actionis habent et, ut sit nova actio, intercedunt, ut de legatis stipulationes et de tutela. . . et damni infecti.- Et sciendum est, omnes stipulationes natura sui cautionales esse, hoc enim agitur in stipulationibus, ut quis cautior sit et securior interposita stipulatione.-D. 46, 5, 1. I pr., §§ 2, 4.1 1 The giving of security is effected either by 'nuda repromissio,' ie., a promise in the form of stipulatio (verbal cautio), or by appointment of sureties (satisdatio) or pledges (real cautio). Paul. Cautum intelligitur, sive personis sive rebus cautum sit.-D. 50, 16, 188, 1.2 whatever has come to his hands, whether by purchase, or by sale, or by any other contract. 1 There seem to be three kinds of praetorian stipulations: judicial, those by way of security, and common stipulations.§ Now those by way of security are either such as have the force of an action and come in that there may be a fresh action, as stipulations about legacies, about guardianship, . . . and as to threatened injury. § And it must be known that all stipulations are essentially by way of security; for the intention in a stipulation is that a person may by the stipulation introduced be more secure and more settled. 2 By security being given, is understood that which is given either with persons or with things. The confirmation also, and further the realising (execution) of legal claims, is contemplated by the 'missiones in bona s. possessionem;' these are such installations in the possession of the whole property or specific things belonging to another as have resulted from magisterial decree—especially as a compulsory remedy against 'contumaces.' The person installed (missus) acquires by securing possession bare, yet legally protected, detention" with the view of caretaking and supervision, and a right of pledge. Ulp. Tres fere causae sunt, ex quibus in possessionem mitti solet: rei servandae causa, item legatorum servandorum gratia, et ventris nomine; damni enim infecti nomine, si non caveatur, non universorum nomine fit missio, sed rei tantum de qua damnum timetur.-D. 42, 4, I.1 Pomp.: Cum bona possidere praetor permittit, non possidemus, sed magis custodiam rerum et observationem nobis concedit.-1. 12 eod.2 1 There are generally three reasons for which instalment in possession is wont to be given: for the preservation of a thing, for the preservation of legacies, and on account of pregnancy; for if security be not given on account of the threatened injury, such instalment affects not the whole but only the property in respect of which injury is apprehended. 2 When the praetor allows possession to be taken... we do not possess, but he rather grants us the custody and oversight of the property. a Cf. Savigny, Law,' ch. v. ; BOOK II. LAW OF PERSONS (PERSONAE').a PART I-NATURAL PERSONS. BOOK II. ¿Cf. note in § 17. The offered by passage from the System' cited by Holland 'subject of a ing relative CHAPTER I. CAPACITY FOR RIGHTS. $ 32. NOTION OF PERSONALITY; BEGINNING AND END OF NATURAL CAPACITY FOR RIGHTS. EVERY right relates to a subject, who is its bearer : there are no rights without subjects. Man considered as a possible subject of rights is called a PERSON. strict definition Personality, otherwise spoken of as capacity for rights Savigny in the or subjectivity of the will, is, accordingly, the capacity recognised by Law which resides in somebody to be the subject of rights; in other words, the (p. 71) is: the potential capacity of having a legal will for oneself. By nature every man is at the same time a (comprehend- Person, which is NATURAL capacity for rights: it is otherwise according to Roman Law, which annexes capacity for rights to special presumptions, called CIVIL capacity, and acknowledges men who are not Persons.d The counterpart of Person, subject of rights or of will, is formed by THING, object of rights or of will; but within the sphere of Persons there are different degrees and gradations of capacity for rights, and one person can be more or less subject to the will of another without thereby losing his character as subject of rights. On the other hand, the conception of personality has been extended beyond the range of natural Persons, so that there are subjects of rights. called JURISTIC Persons, which are not individual men ; d I.e., slaves. |