Obrázky na stránke
PDF
ePub

BOOK III.

Pt. I. Ch. II.

a § 206.

With Bruns,

Ztschr. f. R. G.

vol. i. pp. 84

86. For the opposite view,

67-69 (Lenel).

fecit: Decem, quae Lucius Titius ex arca tua mutua acceperat, salva ratione usurarum habes penes me.' Respondit actione de constituta pecunia eum teneri.-1. 26 eod.'

The action that arises from this is the actio de pecunia constituta.'a From the formal acknowledgment of debt by bankers (receptum argentarii), a special, and indeed civil, actio recepticia' obtained; and this could be applied to every subject, whilst the see vol. xv. pp. constitutum originally was confined to money and other quantities; but Justinian abolished the actio recepticia, and at the same time every restriction upon the constitutum.-The constitutum leaves the original claim untouched, and always engenders only an accessory obligation, so that thus the constitutum debiti alieni' exhibits itself as an informal suretyship.

:

Gai. Ubi quis pro alio constituit se soluturum, adhuc is, pro quo constituit, obligatus manet.1. 28, D. h. t.2

Titius Seio epistulam emisit in haec verba : 'Remanserunt apud me L ex credito tuo ex contractu pupillorum meorum, quos tibi reddere debebo Idibus Maiis probos; quodsi ad diem suprascriptum non dedero, tunc dare debebo usuras tot.' Quaero an Titius in locum pupillorum hac cautione reus successerit ? Marcellus respondit, si intercessisset stipulatio, successisse. -1. 24 eod.3

1 A certain person drew up a letter to a creditor in these terms: The ten [aurei] which L. T. had received as a loan from your chest, you have as in my possession, the account for interest being kept up.' He answers, that such person was liable to the action de constituta pecunia.

2 When any one has become surety for another, the person for whom he has become surety still remains liable.

Tit. sent a letter to Sejus in these terms: "There have remained in my hands fifty [aurei] of your claim [which belonged to you] by virtue of a contract with my wards, which I shall have to return to you in good coin on the 15th of May; but if I shall not have paid it over by the above-written day, then I

Ulp. Vetus fuit dubitatio, an qui hac actione egerit, sortis obligationem consumat. Et tutius est dicere, solutione potius ex hac actione facta liberationem contingere, non litis contestatione, quoniam solutio ad utramque obligationem proficit. -1. 18, § 3 eod.'

(2) The 'receptum arbitrii.'

[ocr errors]

(a) If any one as umpire (arbiter ex compromisso) have undertaken the decision of the suit between them assigned to him by regular compromissum (pecunia compromissa) of the parties, he is by coercive measures of the Praetor required to deliver the award.

Paul. Compromissum ad similitudinem iudiciorum redigitur et ad finiendas lites pertinet.-D. 4, 8, 1.a 2

Ulp. Recepisse autem arbitrium videtur, ut Pedius dicit, qui iudicis partes suscepit finemque se sua sententia controversiis impositurum pollicetur.-1. 13, § 2 eod.*

Id. Arbitrum autem cogendum non esse sententiam dicere, nisi compromissum intervenerit. -Item Iulianus scribit non cogendum arbitrum,

si alter promiserit alter non.-1. 1 1, §§ 1, 4.*

shall have to pay such and such interest.' I ask, whether L. T. by this engagement has taken the place of the wards as debtor ? Marc. answers, that he has taken their place, if a stipulation had intervened.

[blocks in formation]

1 There was an ancient doubt whether he who has sued by this action extinguishes the obligation as to the capital. And it is I.e., the oblisafer to say that it is rather by payment which has been made gation of the principal in consequence of this action that the release comes about, not debtor. by joinder of issue, since payment avails for both obligations. 2 A reference is put on the same footing as actions, and concerns the termination of suits.

3 But, as Ped. says, he is to be regarded as having taken upon himself the decision of the suit who has undertaken the functions of iudex, and promises by his award to put an end to the disputes.

But the arbitrator is under no compulsion to deliver his award, unless a reference has intervened (to that effect).--Like

[blocks in formation]

(3) On the other hand, the award itself is not of direct enforcement. Operation is only indirectly assured to it by stipulations (especially stipulatio poenae), by which the parties, already upon the appointment of the tribunal of arbitration, must mutually engage to obey the award.

Id. Ex compromisso placet exceptionem non nasci, sed poenae petitionem.-1. 2 eod.1

Id. Sed si poena non fuisset adiecta compromisso sed simpliciter sententia stari quis promiserit, incerti adversus eum foret actio.-1. 27, § 7 eod.2

Imp. Anton.: Ex sententia arbitri ex compromisso... nec iudicati actio praestari potest, et ob hoc invicem poena promittitur, ut metu eius a placitis non recedatur.-C. 2, 55, 1.3 (3) The receptum nautarum, etc.'a

§ 129. PACTA LEGITIMA; DONATIO IN PARTICULAR.

Of the informal agreements to which by enactment or customary Law (pacta legitima) actionability was in the later period accorded, without thus being ranged in the closed circle of civil contractus, the most imCL. C. 5, 11,6, portant is the contract of DONATION.

Paul. Legitima conventio est, quae lege aliqua confirmatur; et ideo interdum ex pacto actio

wise Jul. writes that the arbitrator is under no compulsion if one party has pledged himself, the other not.

1 It is held that no plea arises out of a reference, but the claim of a penalty.

2 But if no penalty should have been attached to the reference, but a man should have given the simple promise that he would abide by the award, there would be an action against him incerti.

3 From the award of an arbitrator upon a reference, . . . the action for execution cannot be given, and on that account a penalty is mutually promised, that by fear of it there may be no departure from the contract.

nascitur vel tollitur, quotiens lege vel senatus-
consulto adiuvatur.-D. 2, 14, 6.1

'Donatio' in the wider sense comprises every grant from pure liberality of a proprietary advantage, though it may be only a temporary one.

Pap.: Donari videtur, quod nullo iure cogente conceditur.-D. 50, 17, 82.2

Pomp. In aedibus alienis habitare gratis donatio videtur; id enim ipsum capere videtur qui habitat, quod mercedem pro habitatione non solvit. Potest enim et citra corporis donationem valere donatio, veluti si donationis causa cum debitore meo paciscar, ne ante certum tempus ab eo petam.-1. 9 pr., D. h. t. (do donat. 39, 5).3 Donatio in the strict sense is only that voluntary and gratuitous alienation of an object of property which diminishes the property of the donor (donator), permanently augments that of the donee, and is done with the intention of enrichment (animus donandi)

Iul. Dat aliquis ea mente, ut statim velit accipientis fieri nec ullo casu ad se reverti, et propter nullam aliam causam facit, quam ut liberalitatem et munificentiam exerceat: haec proprie donatio appellatur.-1. 1 pr. eod.*

1 A statutory convention is that which is confirmed by some statute; and accordingly sometimes an action arises or is extinguished by a bargain, whenever it is assisted by a statute or a decree of the Senate.

2 That appears to be presented which is granted under the compulsion of no right.

3 The occupation of another's house without payment is considered a donation; for there seems to be an acquisition by him in the very fact that he pays no hire for the occupation. For a donation can avail even without the present of a material thing, for example, if I for the sake of a present engage with my debtor that I will make no claim upon him before a time certain.

Some one gives with the intention that the donee should at once become owner, and that (the thing) in no case should

BOOK III.

Pt. I. Ch. 11.

BOOK III.

Pt. 1. Ch. II.

a Sc. inter virum et

uxorem.

:

Ulp. de finirisolet eam demum donationem impediri solere, quae et donantem pauperiorem et accipientem facit locupletiorem.-Si maritus heres institutus repudiet hereditatem donationis causa, Iulianus scripsit donationem valere: neque enim pauperior fit qui non adquirat, sed qui de patrimonio suo deposuit; repudiatio autem mariti mulieri prodest, si vel substituta sit mulier vel etiam ab intestato heres futura.-Simili modo et si legatum repudiet, placet nobis valere donationem, si mulier substituta sit in legato vel etiam si proponas eam heredem institutam.-Ubicumque igitur non deminuit de facultatibus suis qui donavit, vel etiamsi deminuat, locupletior tamen non fit qui accepit, donatio valet.-D. 24, 1, 5, §§ 8, 13, 14, 16.1

Cic. Top. 8, 37: neque donationem sine acceptione intelligi posse.

2

Ulp. Non potest liberalitas nolenti adquiri.— 1. 19, § 2, D. h. t.3

Every kind of property can be subject of donatio

revert to himself, and he does it for no other reason than to exercise liberality and generosity: this is called a donation in the strict sense.

1 It is customary to fix the rule that only such a donation is commonly prohibited [that between hushand and wife] as makes the donor poorer, the donee richer.-If a husband instituted heir renounce the inheritance for the sake of a present, Jul. has written that the donation is valid; for he certainly does not become poorer who does not acquire something, but he that of his own property has given something away; but the renunciation on the part of the husband benefits the wife, if the wife has either been substituted, or become heiress by intestacy.-In like manner we suppose that the donation also holds good if he should renounce a legacy, if the wife has been substituted in the legacy, or even, if you imagine the case that she has been instituted heiress. When, therefore, the donor has made no diminution in his property, or even if he diminish it, but the donee does not become richer, the gift is good.

—and that a donation without acceptance is inconceivable. 3 A present cannot be acquired by a person against his will.

« PredošláPokračovať »