BOOK I. Chapter 1.

a Cf. §§ 5o, 112, 149, Eq.

Cf. §§ 144,

197.

...

Labeo ait, convenire . . . vel per epistulam vel per nuntium inter absentes quoque posse.-D. 2, 14, 2 pr.1

The Roman Law in this proceeds from the following principles :

1. Persons in domestic subjection (personae alieno iuri subiectae) and slaves always acquire of necessity for their master."

Gai. ii. § 86: Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos, quos in potestate manu mancipiove habemus."

Id. Etiam invitis nobis per servos adquiritur paene ex omnibus causis.-D. 41, 1, 32.3

2. For persons with capacity to act, a further rule operates, that they can establish a legal relation only by their own expressions of will or personal co-operation, not by that of free third-persons. A representation is only possible indirectly; that is, the representative establishes the legal relation first for himself, and then transfers it to the one he represents.

Gai. ii. 95: Ex his apparet, per liberos homines, quos neque iuri nostro subiectos habemus, neque bona fide possidemus, . . . nulla ex causa nobis adquiri posse; et hoc est quod vulgo dicitur, per extraneam personam nobis adquiri non posse.*

...

4

1 Labeo says that an agreement may also be made between parties separated from one another . . . either by means of a letter or by messenger.

2 Now property is acquired for us not only by ourselves but also by those whom we have under power, marital control, or mancipium.

3 Even without our will acquisition is made for us by slaves. in almost all cases.

4 Whereby it appears that we cannot in any case acquire through freemen that we neither have under power nor possess bona fide . . . and this is what is meant by the common saying, that nothing can be acquired for us through a stranger.

It was only in respect of the acquisition of possession and of those rights (as of ownership) which depend upon it, that direct representation was gradually allowed."

Paul. v. 2, § 2: Per liberas personas quae in potestate nostra non sunt, adquiri nobis nihil potest; sed per procuratorem adquiri nobis possessionem posse, utilitatis causa receptum est.1

Pomp. Ea quae civiliter adquiruntur, per eos, qui in potestate nostra sunt, adquirimus, veluti stipulationem; quod naturaliter adquiritur, sicuti est possessio, per quemlibet volentibus nobis possidere adquirimus.-1. 53, D. de A. R. D.2 Representation depends

BOOK I.

Chapter I.

a Cf. § 88.

1. Upon a commission or authority to give the declaration of will in question; succeeding 'ratihabitio' or confirmation is equivalent to a commission, and by it the legal transaction concluded by the representative becomes operative for, or rather binding upon, the representative retrospectively." 2. Upon an office: thus a representative (tutor, paratur': cf. §§ curator) is appointed for free persons without 89, 139. capacity to act, and he, supplying the deficiency of their will, acts for them."

For many acts in the Law (e.g., making a testament, taking up an inheritance, adoption) even indirect representation is not admitted.

§ 21. INVALID ACTS IN THE LAW.

'Ratihabitio mandato com

• See §§ 58, 82.

An act in the Law is invalid, when it is legally inadmissible, or lacks an essential requisite of the inten- Cf. § 4.

1 Nothing can be acquired for us by free persons that are not under our power, but our ability to acquire possession by a representative has been admitted for convenience' sake.

2 Those things that are acquired by ius civile, such as a stipulation, we acquire through those who are under our power; that which is acquired in a natural way, as possession, we acquire, if willing, through any one whatever.

BOOK I. Chapter 1.

a See § 19.

' § 18.

• See § 161.

tion or declaration of the will, as regards character, form, or substance."

Impp. Theodos. et Valent. : Non dubium est, in legem committere eum, qui verba legis amplexus contra legis nititur voluntatem. . . . Nullum enim pactum, nullam conventionem, nullum contractum inter eos videri volumus subsecutum, qui contrahunt lege contrahere prohibente.-C. I, 14, 5.1

Inst. iii. 19, §§ 1, 2: Si quis rem, quae in rerum natura non est aut esse non potest, dari stipulatus fuerit, veluti Stichum qui mortuus sit, quem vivere credebat, aut hippocentaurum, qui esse non possit, inutilis erit stipulatio. Idem iuris est, si rem sacram aut religiosam, vel publicam ut forum vel theatrum, vel liberum hominem . . . dari quis stipuletur.2

The invalidity can be absolute, i.e., already exist intrinsically, so that there is only the outward semblance of a legal transaction-Nullity; or it may be relative, so that the transaction in itself (ipso iure) is valid, and first becomes ineffectual by controversy, i.e., judicial demonstration of a ground of invalidity (actio, exceptio, rest. in integr.) as affecting him by whom it is claimed-Controvertibility, Revocability.

The ground of invalidity can be either present from the first, or arise later on.c

1 There is no doubt that he offends against the lex who adheres to its words, but struggles against its object. We ordain that no bargain, no agreement, no contract shall be upheld between those who contract notwithstanding a lex that prohibits it.

2 If any one shall have stipulated that a chattel be given which in reality does not or cannot exist, as for instance Stichus, who is dead, whom he believed to be alive, or a hippocentaur, which cannot exist, the stipulation will be void. The same law applies if any one stipulate that a sacred or religious thing, or a public one... as a market-place or theatre, or a freeman, be given.

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 essential to the transaction," or to the scope of its object,

:

Pomp. Si vir uxori vel contra quid vendiderit vero pretio et donationis causa paciscantur, ne quid venditor ob eam rem praestet, verius est, pactum dumtaxat irritum esse.-D. 24, I, 31, 4.2

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.1

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

1 When the chief subject does not exist, as a rule the things which go with it have no recognition also.

2 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.

3 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.

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 I.

a See Markby, ss. 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 24, which, however, forms juristically but tween the 24th one day-called 'bissextum '-with that last mentioned. and the 25th.

regularly twenty-two.

d Mommsen

sometimes after Feb. 23, at other times

after the 24th day.

Mommsen, be

Thus

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.