immerito quaeritur: nam et res certae designantur, et utra earum potius praestanda sit, in incerto est. Sed utcumque is qui sibi electionem constituit adiectis his verbis utrum ego velim,' potest videri certum stipulatus, cum ei liceat vel 'hominem' tantum vel 'decem' tantum intendere sibi dari oportere': qui vero sibi electionem non constituit, incertum stipulatur.1. 75 pr., §§ 1, 3, 7, 8 eod.' Id. Si quis certum stipulatus fuerit, ex stipulatu actionem non habet, sed illa condicticia actione id persequi debet, per quam certum petimus.-D. 12, 1, 24.2 1 But where it is not clear what a thing is, of what kind, and of what quantity the object of the stipulation is, we must speak of it as an indeterminate stipulation. § If, therefore, a man stipulate for the conveyance to him of an estate without a particular designation, or of a slave in general without his proper name, or of wine or corn without (a specification of) the quality, he contracts an indeterminate obligation. . . . § If a man have stipulated for the usufruct of a definite parcel of land, he is taken to have contracted an indeterminate obligation; for this is the better rule, adopted by us. § He that makes a stipulation consisting of an act or forbearance is considered to make an indefinite stipulation. . . . § He that stipulates this or that, as, for example, 'ten [aurei] or the slave Stichus,' in respect of such the question not unjustly arises, whether he contracts a determinate or an indeterminate obligation; for although definite things be designated, yet it remains uncertain which of the two shall the rather be rendered. But at any rate one can suppose of him who has made his choice, by the addition of these words: Whichever of the two I like,' that he stipulates for something certain, since he is at liberty to apply that which must be given him' to the 'slave' only, or to the 'ten' only; but he that does not make his choice makes an uncertain stipu lation. 2 If a man should have made a determinate stipulation, he has no action upon the stipulation, but he must take proceedings by that actio condicticia by which we sue for what is certain. § 106. PRINCIPAL AND ACCESSORY OBJECT. INTEREST." BOOK III. Pt. I. Ch. 11. a Cf. Smith, 'Dicty. of Fenus. Besides the original and principal object of per- Antiqq.' s. formance, the obligation may also comprise the increase thereof-natural or juristic products-as accessory ' § 73object. In particular, the debtor, if the obligation relates to a sum of money (or a quantity of other fungibles), has besides this, which is called Capital (sors, caput), often still to pay Interest (usurae, foenus) as an equivalent, represented by a percentage upon such capital, for the use of it allowed to the debtor or withdrawn from the creditor. The obligation to pay interest is always an addition to the principal obligation, with the discharge of which it is-at any rate for the future-ipso facto extinguished. It rests either upon D. 46, 2, 18. contract (usurae conventionales) or upon statutory provision and judicial disposition (usurae legales, iudiciales, i.e. quae officio iudicis praestantur), e.g., interest charged in respect of delay. The latter occurs only in bonae fidei obligationes: the former both in these and in a stricti iuris obligatio, but in different forms. To ground an obligation to pay interest in a bonae fidei obligatio, there is need only of an informal collateral agreement, and it then constitutes (just as that which rests upon a legal precept) a mere extension of the principal obligation, but can also be made independently available by the action that arises upon it; whilst the principal contract can only be enforced in conjunction with it. On the other hand, in stricti iuris obligationes (e g., loan) an obligation to pay interest is originated only by an independent stipulatio, and it then forms the subject of a special-although accessory-obligation besides the principal obligation relating to the capital; and naturally, with the same result, a stipulatio for interest can be also contracted in respect of a bonae fidei obligatio. Imp. Gord. Si deposita pecunia is qui eam suscepit usus est, non dubium est etiam usuras BOOK III. Pt. I. Ch. II. a § 22. § 147. debere praestare. Sed si, cum deposita actione expertus es, tantummodo sortis facta condemnatio est, ultra non potes propter usuras experiri. Non enim duae sunt actiones, alia sortis alia usurarum, sed una, ex qua condemnatione facta, iterata actio rei iudicatae exceptione repellitur.-C. 4, 34, 4.' Hermog. Pretii sorte licet post moram soluta, usurae peti non possunt, cum hae non sint in obligatione, sed officio iudicis praestentur.-D. 19, 1, 49, § 1.2 Ulp.: Qui sortem stipulatur et usuras quascumque, certum et incertum stipulatus videtur; et tot stipulationes sunt,quot res sunt.-D. 45, 1, 75, 9.3 The rate of interest (modus usurarum) is the fractional relation between the interest and the capital lent, reckoned for a definite space of time (ordinarily a year). In the most ancient time interest amongst the Romans was reckoned according to the uncial system. Thus : Unciarium foenus is I uncia for I as (: = 12 unciae) pro anno, equal to 83 per cent. for the year of ten months, or 10 per cent. for that of twelve months.a Semiunciarium foenus=5 per cent. Later on the calculation was made according to monthly percentages-(Kalendaria, instrumentum Kal 1 If he that has received money upon deposit has made use of it, there is no doubt he must also find interest. But if, when you have taken proceedings by the action of deposit, condemnation has alone followed for the capital, you cannot proceed further on account of the interest. For there are not two actions, one for capital, the other for interest, but a single action; and if condemnation have resulted from this, a repeated action is met by the plea of res iudicata. If the principal have been paid, although after a delay, interest cannot be sued for, since this is not contained in the I.c., if at all. obligation, but is given by the judicial authority. 3 He that stipulates for principal and any interest, is considered to stipulate for something definite and indefinite; and there are as many stipulations as there are objects. endarii) in which the centesimae usurae, i.e., I per cent. centesimae usurae was equal to 12 per cent. In Christian imperial times the last-mentioned percentages were equal to 12, 61, 81, since from the solidus, which contained 24 siliquae, for the sake of convenience 3 siliquae were taken as centesimae usurae. The legitimate maximum interest (usurae legitimae, maximae) was according to the Twelve Tables the unciarium foenus; later on it was centesimae usurae, and remained so even after many fluctuations down to the time of Justinian, who reduced it (subject to many exceptions) to semisses usurae. The taking of interest was moreover checked by the prohibition of compound interest (anatocismus), and by the provision that arrears of interest should never increase and run on ultra duplum' (i.e., beyond the amount of the capital lent)." Interest was often reserved in the form of a penal stipulation. 'si die supra scripta summa P. Maevio. soluta non erit, tunc eo amplius, quo post solvam, poenae nomine in dies triginta inque denarios centenos denarios singulos dari stipulatus est P. Maevius, spopondi ego L. Titius.'-D. 12, 1, 40.' Mod. Poenam pro usuris stipulari nemo supra modum usurarum licitum potest.-D. 22, 1, 44.2 1 If upon the above-written day the amount shall not have been paid by P. M. . . . then P. M. has stipulated, and I, Luc. Tit. have undertaken, that so much more shall be given as I shalĺ pay later on, as punishment for thirty days, and for every hundred denarii one denarius. 2 No one can, in lieu of interest, stipulate for a penal sum above the amount of interest permitted. BOOK III. Pt. I. Ch. II. a § 136, actio de recepto. b § 197. § 107. COMPENSATION FOR INJURY, AND DAMAGES. DAMNUM is every detriment to property suffered by any one through some event. If this proceed from mere accident (casus), the person affected has, as a rule, no claim to compensation for the damage (casus a nullo praestantur; casum sentit dominus); still less if he himself is author of it. The legal ground of responsibility to make compensation for damage (damni praestatio) is either Contract or Tort. That is to say, a claim to compensation for damage exists (1) if a third party is under obligation to make reparation for harm done to property (praestatio periculi) by accident (or the act of another) as a result of special agreement (e.g., in commodatum, or independent agreement by way of security) or positive rule of law." (2) If the harmful event can be referred to the illegal will of a third party. In the first case, the compensation for damage can come into consideration as the original and sole object of the obligation; in the latter, it always does when the harmful act of the third party is one in itself illegal or disallowed (delictum). But it can also consist in violation of the special duty imposed upon him by an existing obligation (dolus, culpa, mora of the debtor, refusal to perform the obligation); and accordingly, the compensation for damage forms the consequential and immediate object of the obligation, because it either replaces the original object of performance, or is added to it, extending the principal performance of the debtor as a collateral object. Since in Roman Law there is only a pecuniaria condemnatio, and directly to compel performance of an obligation is not permitted, every obligation (not relating to a definite sum of money), whatever may be its original object, is, as a result of vicarious non-fulfilment and of judicial condemnation, converted into a claim to compensation for damage to property caused |