The cedens' is answerable to the cessionarius' as a rule only for the existence (verum nomen) of the claim, not for its admitting of realisation, or for the solvency of the debtor (bonum nomen). : Ulp. Si nomen sit distractum, Celsus scribit, locupletem esse debitorem non debere praestare, debitorem autem esse praestare: nisi aliud convenit.-D. 18, 4, 4.1 1 Book III. Pt. I. Ch. II. Already in the later classical, and further in the yet later Law, the express conferment of a special mandatum agendi was not always requisite for the cessio to take effect; because in some transactions, which doubtless involved the intention of cessio, as for instance, in an emtio nominis' or sale of an obligatory claim, the defective mandatum agendi-or even that recalled or otherwise extinguished-was gradually replaced by the grant of utiles actiones, whereby the cessionarius altogether, in relation to the cedens, acquired a more assured and more independent position. Moreover, in certain cases, where a legal liability was existing for the assignment of the claim," the " Cf. § 112. cessio itself was regarded as effected without, indeed against, the will of the previous creditor; and the action belonging to him was, as utilis actio, conferred upon the party entitled (cessio legis). Imp. Valer. Nominibus in dotem datis, quamvis nec delegatio praecesserit nec litiscontestatio subsecuta fuerit, utilem tamen marito actionem ad similitudinem eius, qui nomen emerit, dari oportere saepe rescriptum est.-C. 4, 10, 2.6: claim, or notice given by him to your debtor, you are not prevented from claiming the amount owing from your debtor, and in this way hindering a claim being made upon him by your creditor. 1 If a debt has been sold, Cels. writes, that (the vendor) has not to answer for the solvency of the debtor, but he has to answer for his being debtor, unless it is otherwise agreed. 2 If claims to dowry have been made over, it has often been laid down in rescripts that, although neither an assignment have preceded nor joinder of issue followed, an equitable action Cf. Pollock, 'Cont.' p. 207. BOOK III. Pt. 1. Ch. IT. a Ibid. C. 4, 35, 22 (a. 506). • Cf. Gai. i. 157. Ulp. x. 8. Imp. Diocl.: In solutum nomine dato non aliter nisi mandatis actionibus ex persona sui debitoris adversus eius debitores creditor experiri potest; suo autem nomine utili actione recte utetur.-C. 4, 15, 1. ult.a1 Id. Ex legato nominis, actionibus ab his qui successerunt non mandatis, directas quidem actiones legatarius habere non potest, utilibus autem suo nomine experietur.-C. 6, 37, 18.2 Ulp. Si procurator vendiderit, . . . dicendum est, utilem ex empto actionem domino competere.-D. 19, 1, 13, 25.3 A peculiar limitation of cessio is contained by the lex Anastasiana, according to which the purchaser of a claim shall be allowed to exact from the debtor no more than he himself purchased. § 145. THIRDLY, OF INTERCESSION. SENATUSCONSULTUM VELLEIANUM. A SC. Velleianum under Claudius enacted that, having regard to their inexperience of law and ignorance of business, as well as to 'sexus imbecillitas,' the INTERCESSION of women was invalid. Paul. Velleiano senatusconsulto plenissime comprehensum est, ne pro ullo feminae intercederent.—1. I pr., D. h. t. (ad SC. Vell. 16, 1).‘ must be given to the husband after the analogy of the purchaser of a claim. 1 If a claim has been made over in lieu of payment, the credi tor can take proceedings alone by actions transferred to him in the name of his debtor against the latter's debtors, but he may lawfully avail himself of an equitable action in his own name. 2 A legatee can in fact have no direct actions upon the bequest of a debt if the actions have not been transferred to him by the heirs; but he may sue by equitable actions in his own name. If an agent has sold . . we must say that an equitable action upon the purchase lies for the principal. 4 By the SCtum Velleianum most complete provision has been : Ulp. Et primo quidem temporibus D. Augusti, mox deinde Claudii edictis eorum erat interdictum, ne feminae pro viris suis intercederent. Postea factum est senatusconsultum, quo plenissime feminis omnibus subventum est; cuius senatusconsulti verba haec sunt: 'Quod Marcus Silanus et Velleus Tutor consules verba fecerunt de obligationibus feminarum, quae pro aliis reae fierent, quid de ea re fieri oportet, de ea re ita censuere : quod ad fideiussiones et mutui dationes pro aliis, quibus intercesserint feminae, pertinet, tametsi ante videtur ita ius dictum esse, ne eo nomine ab his petitio sit neve in eas actio detur, cum eas virilibus officiis fungi et eius generis obligationibus obstringi non sit aequum, arbitrari senatum, recte atque ordine facturos ad quos de ea re in iure aditum erit, si dederint operam, ut in ea re senatus voluntas servetur.-1. 2 pr., § 1 eod.' BOOK III. Pt. 1. Ch. II. made that women should not make themselves sureties for any one. 1 And first indeed in the times of the late Emperor Augustus, and soon afterwards of Claudius, by their edicts women were forbidden to become sureties for their husbands. § Afterwards a Sctum was passed by which, in the most complete way, relief was given to all women. The following are the words of this edict: Whereas Marc. Sil. and Vell. Tut., the consuls, have delivered a discourse upon the obligations of women, who should undertake the debts of others, as to what should be done concerning such matter, the conclusion come to thereon was this: As regards guaranties and debts incurred for others, for whom women shall become sureties, although previously the law seems to have been laid down, that there should be no claim against them in this behalf, and no action should be given against them, it not being fair that they should perform men's functions and be involved in obligations, the Senate is of opinion that the tribunal which shall give audience concerning such matter will act rightly and in order if they shall be at pains to uphold its intention as to such matter.' BOOK III. Pt. I. Ch. 11. § 142. The notion of intercessio' was developed by Roman jurisprudence by way of interpretation of this SCtum, to the extent that it comprehends every engagement for the liability of another by which responsibility is undertaken. Imp. Anton. Sed si pro aliis, cum obligatae non essent, pecuniam exsolvunt, intercessione cessante repetitio nulla est.-1. 1, C. h. t. 4, 29.1 This may be by responsibility collateral to the debtor (so-called 'cumulative' intercessio) by means of fideiussio, mandatum qualificatum, constitutum debiti · alieni. Id. Si cum ipse mutuam pecuniam acciperes, mater tua contra amplissimi ordinis consultum fidem suam interposuit, exceptione se tueri potest. -1. 3, C. eod." Or it may be by the undertaking of another's debt by means of expromissioa (so-called 'privative' intercessio), or by contracting liability in the place, and in the sole interest, of a third party (so-called intercessio tacita). : Imp. Alex. SCtum locum habet, sive eam obligationem, quae in alterius personam constitit, mulier in se transtulerit vel participaverit, sive cum alius pecuniam acciperet, ipsa se ab initio ream constituit.—1. 4, C. eod.3 Ulp. Si cum essem tibi contracturus, mulier : 1 But if they pay money for others, without having contracted any liability, in the absence of intercessio, there is no recovery. 2 If upon your taking a loan, your mother made herself liable against the decree of the august order, she can protect herself by a plea. 3 The Sctum is applicable whether it be that a woman has transferred to herself, or has taken a share in, an obligation which affects another, or when another received money, she at the outset made herself the debtor. intervenerit, ut cum ipsa potius contraham, vide- But the debt for which the engagement is made. must be materially, and in its pecuniary relation, always another's. Gai. Aliquando licet alienam obligationem suscipiat mulier, non adiuvatur hoc senatusconsulto; quod tum accidit, cum prima facie quidem alienam, re vera autem suam obligationem suscipiat: ut ecce si ancilla ob pactionem libertatis expromissore dato post manumissionem id ipsum suscipiat, quod expromissor debeat, aut si hereditatem emerit et aes alienum hereditarium in se transcribat, aut si pro fideiussore suo intercedat. -1. 13 pr., D. eod.* The female surety has the exceptio SC! Vell! to the action of the creditor, provided that he knew of the intercessio. Sed ita demum eis subvenit, si non callide sint versatae; nam deceptis non decipienti bus opitulatur.l. 2, § 3, D. h. t.3 Paul. Si mulier tamquam in usus suos pecuniam acceperit, alii creditura, non est locus senatusconsulto alioquin nemo cum feminis contrahet, 1 If when I was about to contract with you, a woman shall have intervened, that I might the rather make the contract with her, she would seem to have given a guaranty. 2 Sometimes, although a woman undertakes the obligation of another person, she is not relieved by this SCtum, which occurs when she undertakes, at the first glance indeed another person's, but in fact her own obligation; as, for example, if a slave-woman, when a substitute has been appointed because of an agreement for freedom, after the manumission should undertake just what the substitute may owe, or if a woman should have purchased an inheritance and takes upon herself the debts of the inheritance, or if she answer for her surety. 3 But relief is afforded them only when they have not gone to work deceitfully; for to those that are deceived, not deceivers, is relief given. BOOK III. Pt. 1. Ch. II. |