integrum ius mandatori reservetur, vel per se vel per alium eandem rem commode explicandi.1. 22, § II eod.1 § 126. EXTENSION OF THE SYSTEM OF CIVIL CONTRACTS BY THE SO-CALLED INNOMINATE CONTRACTS. The circle of obligatory agreements operative by Civil Law was from the beginning of imperial times extended, by actionability being gradually accorded to all informal agreements (nova negotia) relating to performance in consideration of corresponding counterperformance, which did not fall under the conception of one of the already established typical contracts" (perhaps under the aspect of the lex [dationi] rei dicta), where performance had already been rendered on one side. These were the INNOMINATE, or nameless, real contracts. Gai. : Ulp. Labeo definit . . . 'contractum' ultro citroque obligationem, quod Graeci ovváλλaypa vocant, veluti emptionem venditionem, locationem conductionem, societatem.-D. 50, 16, 19.' Id. Sed etsi in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit esse obligationem, ut puta dedi Now just as one is at liberty not to undertake a mandate, so when undertaken it ought to be carried out, unless it have been renounced. But it can be renounced (only) in such way that power is reserved without prejudice to the mandator of either himself or through another conveniently accomplishing the transaction. 2 It is quite certain that validity attaches to whatever agreement has been made upon the occasion of the delivery of things. 3 Labeo defines a contract as a reciprocal obligation, which the Greeks call ovváλλayμa; for example, a purchase and sale, a letting and hiring, a partnership. tibi rem, ut mihi aliam dares, dedi ut aliquid Paul. Emptio ac venditio nuda consentientium BOOK III. Pt. I. Ch. II. The action by which the fulfilment of the contract, i.e., counter-performance, was exacted was the '(civilis) actio praescriptis verbis,' conceived in factum,'a which a § 203. operated altogether as an auxiliary action, when the legal nature of the contract was doubtful, because of the absence of the special characteristic marks belongiug to the juristic essence of one of the established particular contracts. Pap. Domino mercium in magistrum navis, si sit incertum, utrum navem conduxerit an merces vehendas locaverit, civilem actionem in factum esse dandam Labeo scribit.-Item si quis pretii explorandi gratia rem tradat, neque depositum neque commodatum erit, sed non exhibita fide in factum civilis subiicitur actio,-(Cels. : nam cum 1 But although while the transaction does not pass into another contract, causa (material consideration) is present. Aristo judiciously replies to Celsus, that there is an obligation; for example, I have given a thing to you that you might give another to me, I have made a gift (to you) that you might do something; that this is a σvváλλaypa (contract), and a civil obligation arises therefrom. A purchase and sale is contracted by the mere will of the consenting parties; but an exchange originates an obligation. from the time of the delivery of the thing; otherwise, if the thing has not yet been delivered, we shall say that the obligation is created by bare consent, which, however, only occurs in respects of those contracts that have a definite name, as with purchase and sale, hiring, mandate. § 123; D. 19, 5, 6. BOOK III. Pt. L. Ch. II. deficiant vulgaria atque usitata actionum nomina, praescriptis verbis agendum est)—Iul. : in quam necesse est confugere, quotiens contractus existunt, quorum appellationes nullae iure civili proditae sunt:-Ulp.: natura enim rerum conditum est, ut plura sint negotia, quam vocabula.-1. 1, § 1, 2, and II. 2-4, D. h. t. (de praescr. verb. 19, 5.)' Id. Actio de aestimato proponitur tollendae dubitationis gratia: fuit enim dubitatum, cum res aestimata vendenda datur, utrum ex vendito sit actio propter aestimationem, an ex locato,quasi rem vendendam locasse videor, an ex conducto, quasi operas conduxissem, an mandati. Melius itaque visum est hanc actionem proponi; quotiens enim de nomine contractus alicuius ambigeretur, conveniret tamen aliquam actionem dari, dandam aestimatoriam praescriptis verbis actionem: est enim negotium civile gestum et quidem bona fide. -D. 19, 3, I pr. 1 Labeo writes that a civil action upon the case must be given to the owner of the merchandise against the captain of the ship, if there be uncertainty as to whether he chartered the ship or procured the conveyance of the merchandise. Likewise if a man make delivery of a thing to ascertain its value, there will be neither a deposit nor a loan, but if good (faith) have not been shown, a civil action is afforded on the case(for when the common and usual names of actions fail, proceedings must be taken by fixed words)-to which, therefore, recourse must be had whenever contracts exist for which the civil law has no designations; for it lies in the nature of things that there are more transactions than names. 2 The action upon a contractus aestimatorius is proposed to remove doubts; for it has been doubted, when a thing is appraised and given for sale, whether there is an action upon the purchase for the assessed price, or upon the letting of it, as if I am considered to have let out the sale of the thing, or upon the hire, as if I had hired the services, or upon the commission. It seemed better therefore that this action should be proposed, for whenever there should be doubt as to the designation of any contract, but the grant of an action should be appropriate, the actio aestimatoria should be given by fixed words: for there has been the performance of a civil transaction, and that in good faith. 1 Id. Si tibi rem vendendam certo pretio dedissem, ut quo pluris vendidisses tibi haberes, placet neque mandati neque pro socio esse actionem, BOOK III. Pt. I. Ch. II. . . quia et mandata gratuita esse debent, et Gai. Si tibi polienda sarciendave vestimenta Ulp. Cum quid precario rogatum est, non solum interdicto uti possumus, sed etiam praescriptis verbis actione, quae ex bona fide oritur.— D. 43, 26, 2, 2.3 1 If I should have given you a thing for sale at a certain price, for you to retain to your use whatever more you should have sold it for, it is held that there is no action either of mandate or partnership, . . . because mandates must be gratuitous, and there seems to be no contract of partnership in respect of him who has not taken you as a partner in the sale, but has reserved for himself a certain price. 2 If I have given you clothes to clean or repair, and you undertake this service without remuneration, the obligation is one of mandate; but if remuneration has been given or arranged for, a transaction is entered into of letting and hiring. But if you have undertaken this business neither for remuneration, nor have at once given or arranged for remuneration, but the transaction has been entered into with the intention that afterwards so much should be given for remuneration as we should agree upon, it is held that an action must be given upon the case as for a new transaction, i.e., by fixed words. 3 If anything has been asked for precario, we can avail ourselves not only of the interdict, but the action praescr. verbis, which arises in equity. BOOK III. a § 135. The performance already rendered could, however, Pt. I. Ch. II. be recalled at discretion, until fulfilment by the other side of the contract, by means of condictio'a; but upon indemnifying the receiver (prepared for performance) for loss sustained in consequence of the contract, and especially if by no fault of his the counter-performance had become impossible (ius poenitendi). : Id. Sed si tibi dedero (pecuniam), ut Stichum manumittas: si non facis, possum condicere, aut si me poeniteat, condicere possum.-D. 12, 4, 3, 2.' Id. Si pecuniam ideo acceperis, ut Capuam eas, deinde parato tibi ad proficiscendum condicio temporis vel valetudinis impedimento fuerit, quominus proficiscereris, an condici possit videndum. Et cum per te non steterit, potest dici repetitionem cessare; sed cum liceat poenitere ei qui dedit, procul dubio repetetur id quod datum est, nisi forte tua intersit non accepisse te ob hanc causam pecuniam. Nam si ita res se habeat, . . . ut ita rem composueris, ut necesse habeas proficisci, vel sumptus, qui necessarii fuerunt ad profectionem, iam fecisti, ut manifestum sit te plus forte quam accepisti erogasse, condictio cessabit; sed si minus erogatum sit, condictio locum habebit, ita tamen, ut indemnitas tibi praestetur eius quod expendisti.-1. 5 pr. eod.2 1 But if I have given you (money) to enfranchise Stichus, and you fail to do it, or if I change my mind, I can bring a personal action. 2 If therefore you should have received money to go to Capua, but afterwards, when you were ready to make the journey, circumstances of time and health should have hindered your setting out, we must see whether (the money) can be recovered by a personal action. And as it has not been your fault, one may say that the recovery falls through; but since he who gave it is allowed to change his mind, it is beyond doubt that what was given can be recovered, unless perhaps it be to your advantage not to have received the money for this reason. For if the matter should stand so .. that you have so arranged that you |