BOOK I. Chapter I.

a The case is similar with the loss of a right.

of another, by whom it is transferred to the party acquiring (e.g., Traditio)." That acquisition of a right is called Succession' by which an already existing right without change of its content passes from the Cf. Holland, person of the one hitherto entitled, or 'auctor,' immediately to another Subject by virtue of a juristic relation between the two, which accordingly itself is governed by the earlier right.

p. 119.

Ulp. Nemo plus iuris ad alium transferre potest, quam ipse haberet.-D. 50, 17, 54.'

Paul. Non debeo melioris condicionis esse, quam auctor meus, a quo ius in me transit.— 1. 175, § 1 eod.*

A distinction is made between 'singular' and universal' Succession, according as it has for its object a separate right of property or the totality of Ibid., and see the proprietary rights of another as a unit.

Bell, Dicty, of

Scotch Law,'

S. VV.

Cf. §§ 6, 77.

Pomp. Heres in omne ius mortui, non tantum singularum rerum dominium succedit.-1. 37, D. de A. v. O. H. 29, 2.3

The Fact, to which the Law attaches the commencement or termination of a right for a person, representing the ground of such commencement, acquisition or termination, consists either in an expression of will of such person (as a contract) or in an external event Ct. §§ 84, 89, independent of his will (as in lapse of time).

130.

In

contrast with the voluntary extinction or surrender of a right, which is 'alienatio' in its wider sense, exemplified by Conveyance (or alienatio in its narrower sense), is extinction that is necessary, or not of • Cf. §§ 25, 97. choice."

1 No one can make over to another more right than he himself had.

2

I must not be in a better position than my predecessor from whom the right passes to me.

3

An heir succeeds to the whole rights of the deceased, not merely to the ownership of the several things.

THE EXPRESSION OF THE WILL AS GROUND OF THE

COMMENCEMENT AND TERMINATION OF RIGHTS.

§18. NATURE AND SPECIES OF JURISTIC ACTS; LEGAL TRANSACTIONS IN PARTICULAR.

BOOK I. Chapter 1.

named generi

Juristic Acts are expressions of the Will, positive or negative, which have a legal result, whether this lie in the intention, more or less conscious, of the agent, or take place independently of, even in opposition to, it. To acts of this kind belong Legal Transactions," i.e., a By Holland the declarations of will which are immediately directed cally Juristic to the commencement, extinction or change of a legal cf. Markby, relation, and designed for it. To acts never intended $. 235. to have a legal result belong those that are disallowed, illegal, 'delicta.'

Legal transactions are divided into unilateral' (e.g., a disposition by last will) and bilateral' or mutual acts (agreements), according as the result intended by them is produced through the declaration of the will of one person, or through the consentient declaration of the will of two or several persons in relation with one another.

Ulp. Est pactio duorum pluriumve in idem placitum et (?) consensus.-D. 2, 14, I, 2.1

Acts are further divided into onerous,' 'gratuitous,' or lucrative;' and into those between living persons, or transactions inter vivos,' and those on account of death, or transactions mortis causa.'

An act with juristic result can be undertaken only by one who is not merely capable of being subject of right, but at the same time has the capacity to act, i.e., possesses the capacity himself actually to exercise the will which attaches to him as a Person,

Acts,' (p. 85).

Upon the grounds of imperfect and limited

capa

Every legal transaction is composed of two elements city to act, see

1 A pactio is the determination and consent of two or more persons with the same object.

BOOK I. Chapter I.

-the inward one of the direction of the will, and the outward one of its declaration: there must be agreement between these. The legal result of a declaration of will presupposes that the will which is declared is the actual will of the agent. But since the inward element of the direction of will eludes examination, the legal result is already annexed by the provisions of Law to the fact of the declaration, as the outward manifestation of the will; and that which is declared is regarded as having been actually intended, so long as no proof is afforded from external circumstances that free will directed to the substance, or to the legal result of the declaration, has been absent. There must be no 'reservatio mentalis,' i.e., no appeal is admitted to any such consideration as that the declaration was But see be- inwardly willed as such, but not its substance."

actual will, Law recognises only that which is outwardly free, that is, self-determining.

The freedom of the will is infringed, though not completely extinguished, by illegal influence of the determination, especially by—

1. Coercion, 'vis compulsiva,' 'metus,' i.e., illegal menace of a greater evil, which awakens well-founded fear no matter whether produced by word or by deed -so as to move the other person to a declaration of will. A compulsory transaction in Law is not null from the commencement, but can be disputed by a person that has been under pressure.c

Ulp. Ait praetor: QVOD METVS CAVSA GESTVM ERIT, RATVM NON HABEBO. Olim ita edicebatur QVOD VI METVSVE CAVSA; vis enim fiebat mentio propter necessitatem impositam contrariam voluntati; . . . sed postea detracta est vis mentio ideo, quia quodcumque vi atroci fit, id metu quoque fieri videtur.-1. 1, D. h. t. = qu, metus, c. 4, 2.1

The praetor says:-'I will not countenance that which shall have been done out of intimidation.' Formerly the Edict used to run thus:-That which because of violence or intimi

Paul. Vis est maioris rei impetus, qui repelli non potest.-1. 2 eod.1

Cic. Tusc. iv. 7, 14: Est metus opinio impendentis mali quod intolerabile esse videatur.2

Ulp. Metum accipiendum Labeo dicit non quemlibet timorem, sed maioris mali.—1. 5, D. h. t.3

:

Imp. Dioclet. Nec tamen quilibet metus ad rescindenda ea, quae consensu terminata sunt, sufficit, sed talem metum probari oportet, qui salutis periculum vel corporis cruciatum contineat. -C. 2, 4, 13.*

Gai. Metum autem non vani hominis, sed qui merito et in homine constantissimo cadat, ad hoc Edictum pertinere dicemus.-1. 6, h. t.3

BOOK I. Chapter 1.

Ulp. Metum praesentem accipere debemus, non suspicionem inferendi eius; . . Pomponius ait, metum illatum accipiendum, i.e. si illatus est timor ab aliquo.a—1. 9 pr. eod. a Cf. § 91. Paul. Si metu coactus adii hereditatem, puto

dation;' violence, that is, was mentioned with reference to the imposition of necessity against the will; . . . but afterwards the mention of violence was withdrawn, because whatever happens by violent force may also be regarded as happening through intimidation.

1 Vis is the violence of something stronger, which cannot be withstood.

2 Metus is the thought of immediate evil which seems to be unbearable.

3 Labeo says that metus must be taken to be, not any intimi dation without distinction, but that of a greater evil.

But not every possible metus is enough to set aside matters which have been concluded by agreement, but such metus must be proved as embraces danger to life or torture to the body.

Now it is not the fear of a timid man, but what may reasonably befall even the most self-contained man, that we shall have to speak of as connected with this Edict.

6 We must understand a fear that has already arisen, not the suspicion that it will be awakened. . . . Pomponius says, we must understand the fear to be such as has already been occasioned, i.e., if it has been caused by some person.

me heredem effici: quia, quamvis si liberum esset, noluissem, tamen coactus volui.-1. 21, § 5 eod.'1

Ulp. Nihil consensui tam contrarium est, . . . quam vis atque metus; quem comprobare, contra bonos mores est.-D. 50, 17, 116 pr.2

2. By Fraud, 'dolus,'a fraus,' i.e., intentional creation of, or even cherishing, a mistake as to a fact, so as to bring about a declaration of will which is occasioned by this alone. Somewhat wider is the general idea of 'dolus,' as being crafty, dishonest conduct impairing the 'fides' or confidence required by positive law. The result is here the same as

with Coercion.c

Ulp. : Dolum malum Servius quidem ita definit machinationem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur. Labeo autem, posse et sine simulatione id agi, ut quis circumveniatur; posse et sine dolo malo aliud agi, aliud simulari, sicuti faciunt, qui per eiusmodi dissimulationem deserviant et tuentur vel sua vel aliena: itaque sic definiit, dolum malum esse omnem calliditatem, fallaciam, machinationem ad circumveniendum, fallendum, decipiendum alterum adhibitam. Labeonis definitio vera est.-1. 1, § 2, D. de dolo. 4, 3."

1 If I have entered upon an inheritance under the pressure of intimidation, I am of opinion that I am constituted heir, because although if I had been free I should have refused, nevertheless I consented under coercion.

2

as vis and

Nothing is so incompatible with consent . metus: to sanction such would be contrary to sound morals. 3 Fraud was indeed thus defined by Servius: 'a certain inveiglement so as to deceive another, when one thing is pretended and another is done.' But by Lab.: 'that it is possible also without pretence to deceive a man; that it is possible also without fraud for one thing to be done, another feigned, as they do who by such a concealment of truth maintain and protect either their own or others' property:' accordingly, he thus defines it: 'dolus malus is all sharp practice, deceit, device employed to overreach, deceive, delude another.' Labeo's is the right definition.