(1) By the Law of the Twelve Tables, the estates of persons dying
intestate belong to their proper heirs.
(2) Children who were under the control of the deceased at the time of
his death are held to be proper heirs, as for instance, a son or a daughter; a
grandson or a granddaughter by a son; a great-grandson or a great-granddaughter
by a grandson; nor does it make any difference whether these children are
natural or adopted. Provided, however, that a grandson or a granddaughter, and
a great-grandson or a great-granddaughter, are to be classed as proper heirs
only when the party in the preceding degree has ceased to be under the control
of his parent, either by the death of the latter, or for some other reason, for
instance, emancipation; for if the son was in the power of the deceased at the
time of his death, the grandson by that son cannot be a proper heir; and we
understand that the same rule applies to all other descendants.
(3) A wife who is in the hand of her husband is a proper heir because
she occupies the position of his daughter; as well as a daughter-in-law who is
in the hand of his son, for she occupies the place of a granddaughter; she
will, however, only be a proper heir if the son in whose hand she is was not
under the control of the father at the time of his death. We also say that the
same rule applies to her who is in the hand of a grandson on account of
marriage, for the reason that she occupies the place of granddaughter.
(4) Posthumous children also, who if born during the lifetime of their
parent would have been under his control, are proper heirs.
(5) The same rule of law is applicable to those in whose cases proof of
error has been established after the death of the father under the provisions
of the Lex Ælia Sentia, or the Decree of the Senate; for, if the
error had been proved during the lifetime of the father, they would have been
under his control.
(6) We understand that the same rule also applies to a son who, having
been mancipated once or twice, is manumitted after the death of his father.
(7) Therefore, when a son or a daughter, and grandchildren of both sexes
by another son, are equally called to the succession, the one who is nearest in
degree does not exclude the one who is more remote; for it seems to be just
that grandchildren should succeed to the place and share of their father. Under
the same rule, if there is a grandson or a granddaughter by a son, and
great-grandchildren by a grandson, they are all called at once to the
(8) And, as it was decided that grandchildren and great-grandchildren of
both sexes should succeed to the place of their father, it seems to be proper
that the estate should be divided not per capita but per stirpes;
so that the son should have half of the estate, and that two or more
grandchildren by another son the remaining half; and if there should be one or
two children by one son, and three or four by the other, half of the estate
should belong to the two grandchildren by the son, and the other half to the
three or four grandchildren by the other.
(9) If there is no proper heir, then the estate by the same Law of the
Twelve Tables belongs to the agnates.
(10) Those are called agnates who are connected by lawful relationship.
Lawful relationship is that which unites persons through the male sex.
Therefore, brothers by the same father are agnates to those who are of the same
blood, and it is not even required that they should have the same mother. Hence
a paternal uncle is the agnate of the son of a brother, and vice versa.
The sons of brothers are included in the same category, that is to say, those
who are descended from two brothers and are usually called cousins, according
to which rule also we can compute several degrees of agnates.
(11) The Law of the Twelve Tables does not grant an estate to all
agnates at once, but only to those who are the nearest in degree at the time
when it is certain that the deceased died intestate.
(12) Succession does not exist under this right of descent; therefore,
if the agnates nearest in degree should fail to accept the estate, or should
die before entering on it, the agnates next in degree will not legally be
entitled to it.
(13) Moreover, we require that agnates should be the next in degree, not
at the time of death, but when it became certain that the party died intestate,
because if anyone should die after having made a will, it seemed to be better
to accept the agnate next in degree, when it is certain that no one will be an
heir under the will.
(14) With reference to women, however, it has been decided that one rule
applies to the taking of estates left by them, and another to the taking of the
estates of others by them. For the estates of women pass to us by the right of
agnation, just as do those of males; but our estates do not belong to females
who are beyond the degree of sisters by the same father. Therefore, the sister
of a brother by the same father is his heir-at-law, but a father's sister and a
brother's daughter cannot be the heir-at-law of one who occupies the place of a
sister. A mother, or a stepmother, who passes into the hand of a father by
marriage, is entitled to the same rights as a daughter.
(15) If the deceased leaves a brother and the son of another brother, as
was previously stated, the brother is to be preferred, for the reason that he
is nearest in degree; but another interpretation of the law is made in the case
of proper heirs.
(16) If, however, no brother should survive the deceased, but there are
children of more than one brother, the estate will belong to all of them; but
the question arose if they were unequal in number, and one of the brothers left
one or two, and the other three or four children, whether the estate shall be
divided per stirpes, as is the rule among proper heirs, or per
capita. It has, however, been long since decided that the estate shall be
divided per capita; and therefore the estate shall be divided into as
many portions as there are persons on both sides, so that each individual may
have an equal share of the same.
(17) If there is no agnate, the same Law of the Twelve Tables calls
gentiles to the inheritance. Who gentiles are we explained in the
First Commentary, and as we called attention to the fact that the entire law
relating to gentiles had fallen into disuse, it would be superfluous in
this place to discuss the point with any degree of minuteness.
(18) The rules prescribed by the Law of the Twelve Tables with reference
to the succession of intestate estates end here, and it is easy to understand
how strict they were.
(19) For as soon as children were emancipated, they had no right to the
estate of their parents under this law, as they had ceased to be proper
(20) The same rule applies to children who are not under the control of
their father, for the reason that they, together with their father, had
received Roman citizenship, and had not again been brought under his authority
by the Emperor.
(21) Likewise, agnates who have suffered a loss of civil rights are,
under this law, not admitted to the estate, for the reason that title by
agnation is extinguished by the forfeiture of civil rights.
(22) Again, if the agnate next in degree should not enter on the estate,
the one nearest to him is not legally admitted to the succession.
(23) Females agnates who are beyond the degree of sisters by the same
father, have no right to succession under this law.
(24) In like manner, cognates who trace their relationship through
persons of the female sex are not admitted; and, to such an extent does this
rule apply, that even a mother and a son or daughter have no right reciprocally
to an estate, unless by the mother having been placed in the hand of the
husband by marriage, the rights of consanguinity should thereby have been
established between them.
(25) But these unjust provisions of the law are now corrected by the
Edict of the Prætor.
(26) For he calls to the succession all children whose legal title is
defective, just as if they had been under the control of their father at the
time of his death, whether they are alone, or there are also proper heirs; that
is to say, they also come in with children who are under the control of their
(27) He does not, however, call agnates who have suffered a loss of
civil rights and are not in the second degree after proper heirs; that is, he
does not call them in the same degree in which they would be called by the law
if they had not forfeited their civil rights, but in the third degree of
proximity; for, although by forfeiture of civil rights they have lost their
legal title, they certainly retain their rights of cognation. Hence, if there
is anyone else who has an unimpaired right of agnation, he will be preferred,
even though he may be in a more remote degree.
(28) The same rule applies, as some authorities hold, to the agnate who,
if the next of kin should fail to accept the estate, would, nevertheless, be
entitled to it by law. There are others, however, who hold that he should be
called by the Prætor in the same order by which an estate is given to
agnates under the law.
(29) It is certain that female agnates, who are beyond the degree of
sisters, are called in the third degree; that is to say, where there is no
proper heir, nor any other agnate.
(30) Those are also called in the same degree who are related through
persons of the female sex.
(31) Also, children belonging to an adoptive family are called to the
succession of their natural parents in this same order.
(32) Moreover, those whom the Prætor calls to a succession do not
indeed become heirs by law, for the Prætor has no power to make heirs,
and they become such only by some law, or some enactment which resembles a law;
for example, by a Decree of the Senate, or an Imperial Constitution. When,
however, the Prætor grants them possession of an estate they are placed
in the position of heirs.
(33) In granting possession of an estate, the Prætor also takes
cognizance of several other degrees, and he does this in order that no one may
die without leaving a successor. We purposely do not treat of this matter in
these Commentaries, as we have discussed this entire right in other
Commentaries specially devoted to the subject.
(33a) It will be sufficient only to note the fact that, as we have
already stated in the distribution of estates by law, cognation alone, as
established by the Twelve Tables, would be of no advantage in taking an estate;
and, therefore, unless a mother, in obtaining the estate of her children, has
acquired the rights of consanguinity by being in the hand of her husband
through marriage, she will have no right whatever under the law.
(34) Sometimes, however, the Prætor promises possession of an
estate neither for the purpose of correcting or opposing the ancient law, but
for the sake of confirming it; as he also grants possession of an estate in
accordance with the provisions of the will to those persons who have been
appointed heirs under a properly executed testament.
He also calls the proper heirs and agnates to the possession of an
estate ab intestato. In this instance, the only benefit derived from his
act is that he who, in this way, demands prætorian possession of the
estate, can avail himself of the interdict which begins with the words:
"Whatever portion of the property"; and the advantage of this interdict we
shall explain in its proper place. On the other hand, if prætorian
possession of the estate is not granted, it will belong to the said parties by
the Civil Law.
(35) Moreover, possession of an estate is often granted to persons in
such a way that they will not be able to obtain it, and possession of this kind
is said to be inoperative.
(36) For example, if an heir is appointed by a properly executed will,
and declares his acceptance of the estate, but refuses to demand
prætorian possession of the same in accordance with the provisions of the
will, being content with the fact that he is the heir under the Civil Law;
still, those who, if a will had not been made, would have been entitled to the
estate of the party who died intestate, can demand possession of the property,
but the grant will be inoperative, as the testamentary heir can evict the
(37) The same rule applies where a person having died intestate, his
proper heir refuses to demand prætorian possession, being content with
his title of heir-at-law, for an agnate will have a right to obtain possession
of the estate; but the grant will be inoperative because the estate can be
evicted by the proper heir. In like manner, if the estate should belong to an
agnate by the Civil Law, and he should enter upon the same, but should fail to
demand prætorian possession, a cognate in the nearest degree can demand
it; but his possession of the estate will be inoperative for the same
(38) There are other similar cases, some of which we have discussed in
the preceding Commentaries.
(39) Let us now consider the estates of freedmen.
(40) Formerly, a freedman was permitted to pass over his patron in his
will, with impunity, for the Law of the Twelve Tables only called a patron to
the estate of his freedman, when the latter died intestate without leaving any
heirs. Hence, if the freedman died intestate but left a proper heir, the patron
was not entitled to any of his estate, but if he left a proper heir who was one
of his natural children, no complaint could be made on this account. If,
however, the proper heir was an adopted son or daughter, or a wife who was in
his hand, it was evidently unjust that the patron should have no right to the
(41) For this reason, this injustice of the law was afterwards corrected
by the Edict of the Prætor, for if a freedman made a will, he is ordered
to do so in such a way as to leave half of his estate to his patron; and if he
left him either nothing, or less than half, the possession of half the estate
is granted to the patron in opposition to the provisions of the will. If,
however, the freedman died intestate, leaving as his heir an adopted son, or a
wife who was in his own hand, or a daughter-in-law who was in the hand of his
son; possession of half the estate is also granted to the patron as against
these proper heirs. The fact that he has natural children will, however, permit
the freedman to exclude his patron from the succession, not only with reference
to the children whom he has under his control at the time of his death, but
also those that have been emancipated, or given in adoption; provided any of
them have been appointed to shares of the estate under the will, or if, having
been passed over, they have, under the Edict, demanded prætorian
possession contrary to the provisions of the will; for if they have been
disinherited they do not, by any means, exclude the patron.
(42) Subsequently, by the Lex Papia, the rights of patrons were
increased, so far as the wealthier freedmen were concerned; for it is provided
by this law that where a freedman left an estate of a hundred thousand
sesterces, or more, and had less than three children, an equal share of his
estate was due to the patron, whether he made a will or died intestate.
Therefore, if a freedman should leave but one son or daughter, his patron will
be entitled to half his estate, just as if he had died without leaving either a
son or a daughter; and if he should leave two sons or two daughters, a third
part of his estate will be due to the patron; but if he left three children,
the patron will be excluded from the succession.
(43) By the ancient law, patrons suffered no injury so far as the estate
of freedwomen were concerned; for, as the latter were under the legal
guardianship of their patron, they could not make a will without the consent of
their patron; and, therefore, if he agreed to the execution of the will, he
would either be appointed the heir, or if he was not, it was his own fault;
for, if he did not consent to the will being made and the freedwoman should die
intestate, he would obtain her property, because a woman cannot have proper
heirs; and formerly no other heir could exclude a patron from the estate of his
(44) Afterwards, however, by the Lex Papia, the birth of four
children released the freedwoman from the guardianship of her patron; and, for
this reason, she was permitted to make a will without the consent of her
guardian; and the law provided that a share equal to that of each of the
children whom the freedwoman had at the time of her death, should be due to her
patron. Therefore, if a freedwoman left four children and no more, a fifth part
of her estate — if she died before they did — belonged to her patron,
and if any of her children died before her, the share of the patron would be
proportionally greater; and if all of them died, her entire estate would pass
to him at her death.
(45) What we have stated with reference to a patron we understand to
apply as well to his son, and also to his grandson by a son, as well as to a
great-grandson born to the grandson by a son.
(46) The daughter of a patron, a granddaughter by a son, and a
great-granddaughter by a grandson, were entitled to the same rights as the
patron, under the Law of the Twelve Tables. Children of the male sex, however,
are only called by the Edict to the succession, but the daughter of a patron
can demand the possession of half the property of the estate of a f reedman
contrary to the provisions of the will; or in case of intestacy, against an
adoptive son, or wife or daughter-in-law who was in the hand of the deceased;
and this was conceded by the Lex Papia on account of the woman having
three children, otherwise the daughter would not have this right.
(47) But where a freedwoman who had four children died testate, a
daughter of the patron was entitled to an equal share with each child; this
rule was not, as some authorities hold, established on account of the children,
but the words of the Lex Papia state that she is entitled to an equal
portion, even if the freedwoman should die intestate. If, however, a freedwoman
dies after having made a will, the same right is granted the daughter of the
patron as would be granted contrary to the provisions of the will of a f
reedman; that is, that the male children of patrons shall be entitled to
possession of half the estate in opposition to the provisions of the will;
although this part of the law has been written with very little care.
(48) From these observations it is apparent that the foreign heirs of
patrons are far removed from the rights to which a patron is entitled, either
with reference to the property of intestate children, or with reference to
prætorian possession in opposition to the provisions of the will.
(49) Formerly, before the enactment of the Lex Papia, patronesses
had only that right to the estates of their freedmen which was conferred upon
patrons by the Law of the Twelve Tables; for they could not demand possession
of half the estate of an ungrateful freedman contrary to the provisions of the
will, or on the ground of intestacy, against an adopted son, a wife, or a
daughter-in-law, which right was granted by the Prætor in the case of a
patron and his children.
(50) The Lex Papia granted almost the same rights to a freeborn
patroness, who had two children, and to a freedwoman who had three, which male
patrons enjoy under the Edict of the Prætor. And the same rights were
granted to a freeborn patroness if she had three children, as were conferred
upon a male patron by the same law, but it did not bestow the same advantage
upon a patroness who was a freedwoman.
(51) The Lex Papia, however, does not confer any new advantage
upon a patroness on account of her children, so far as the estates of
freedwomen are concerned, even if they should die intestate. Therefore, if
neither the patroness herself, nor the freedwoman, has suffered a loss of civil
rights, the estate will belong to her by the Law of the Twelve Tables, and the
children of the freedwoman will be excluded, and this rule applies even if the
patroness should have no children, for, as we stated above, women can never
have a proper heir.
But, on the other hand, if either of them has suffered a loss of civil
rights, the children of the freedwoman will exclude the patroness, for the
reason that her title is legally destroyed on account of the forfeiture of
civil rights, so that the children of the freedwoman obtain the preference by
the right of relationship.
(52) Moreover, when a freedwoman dies after having made a will, a
patroness, who has no right through children, cannot claim possession contrary
to the provisions of the will of the freedman; but one who is entitled through
her children, has the same right conferred on her by the Lex Papia as a
patron has under the Edict in opposition to the provisions of the will of his
(53) The same law bestows upon the son of a patroness almost the same
rights as upon a patron; but in this instance a single son or daughter is
sufficient to authorize the privilege.
(54) All that relates to this subject appears to have been sufficiently
discussed up to this point; and a more minute explanation will be found in my
Commentaries devoted to this subject.
(55) Let us in the next place examine the estates of Latin freedmen.
(56) In order that this branch of the law may become more clear, we
should remember what we have stated elsewhere, namely, that those who are now
styled Latini Juniani were formerly slaves under quiritarian right, but
by the aid of the Prætor had been placed in a position of apparent
freedom, so that their property belonged to their patron by the right of
peculium. Afterwards, however, by the Lex Junia, all of those
whom the Prætor had protected while in nominal freedom became actually
free, and were styled Latini Juniani; Latini, because the law intended
them to be free just as those Roman citizens were who, having left the City of
Rome for Latin colonies, became Latin colonists; Juniani, because they
were free under the Lex Junia, even though they did become Roman
citizens. Hence the author of the Lex Junia understood that the result
would be that by this fiction, the property of deceased Latini would no
longer belong to their patrons, for the reason that, as they did not die
slaves, their estates could not belong to their patrons by the right of
peculium; nor could the property of a Latin freedman belong to his
patron by the right of manumission, and he considered it necessary, in order to
prevent the benefit granted to freedmen from becoming an injury to their
patrons, to provide that their property should belong to those who manumitted
them, just as if this law had not been enacted; and, therefore, the property of
Latins by this law belongs as it were by the right of peculium to those
who manumit them.
(57) Hence it happens that the title to the property of Latins under the
Lex Junia, and that to the estates of freedmen who are Roman citizens,
(58) For the estate of a freedman who is a Roman citizen will, by no
means, belong to the heirs of his patron; but it will belong absolutely to the
son of the patron, and to his grandsons by a son, and to his great-grandsons by
a grandson; even though they may have been disinherited by their father.
Moreover, the estates of Latins will pass to the foreign heirs of a patron in
the same way as the peculium of slaves, and will not belong to the
children of the person who manumitted them, if they are disinherited.
(59) Likewise, the estate of a freedman who is a Roman citizen belongs
in equal parts to two or more patrons; although they may have had unequal
shares in said slave, if they were his owners; but the estate of a Latin
belongs to his patrons, according to the shares which each one owned in him
when he was his master.
(60) Also, with reference to the estate of a freedman who is a Roman
citizen, one patron would exclude the son of another, and the son of one patron
will exclude the grandson of another; but the estates of Latins belong jointly
to a patron and the heir of another patron, in proportion to the share which
would have belonged to the person who manumitted the slave.
(61) Likewise, if one patron leaves three children, and another one, the
estate of a freedman, who is a Roman citizen, is divided per capita,
that is to say, the three brothers will take three shares, and the other heir
the fourth share. The estate of a Latin, however, belongs to his successors in
the same proportion as it would have belonged to the person who himself
manumitted the slave.
(62) Again, if one of the patrons rejects his share to the estate of a
freedman who is a Roman citizen, or dies before he formally accepts it, the
entire estate will belong to the other; but the property of a Latin will belong
to the people, so far as the share of the patron who refuses to accept it is
(63) Subsequently, during the Consulate of Lupus and Largus, the Senate
decreed that the estate of Latins should belong, in the first place, to the
party who manumitted them; and next to the children of the latter, who were not
disinherited by name, according to their proximity; and then, by the ancient
law, to the heirs of those who manumitted them.
(64) Certain authorities hold that, under this Decree of the Senate, the
same rule applies to the estates of Latins as to those of freedmen, who are
Roman citizens; and this was the opinion of Pegasus. This doctrine, however, is
evidently incorrect, for the estate of a freedman who is a Roman citizen never
belongs to the foreign heirs of his patron; while the estate of a Latin citizen
under this very Decree of the Senate, where the party who manumitted him left
no children, will belong to his foreign heirs. Likewise, with reference to the
estate of a freedman who is a Roman citizen, disinheritance does not in any
injure the children of the party who manumitted them; while in the case
of the property of Latins, it is set forth in the said Decree of the Senate
that where disinheritance is specifically made, they will be injured.
Hence, the only actual effect of this Decree of the Senate is, that the
children of the party who manumitted the slave, and who are not disinherited by
name, are preferred to foreign heirs.
(65) Therefore, an emancipated son of the patron who has been passed
over, although he may not demand prætorian possession of his father's
estate, in opposition to the provisions of the will, is still preferred to
foreign heirs, so far as the estates of Latins are concerned.
(66) Moreover, a daughter and other proper heirs, although they may have
been disinherited with others under the Civil Law, and entirely excluded from
sharing in the estate of their father; still, in the case of the estates of
Latins, unless they have been specifically disinherited by their father, they
will be preferred to foreign heirs.
(67) Again, the estates of Latins will, nevertheless, belong to children
who have refused to accept the estate of their father, for they also can not,
by any means, be said to have been disinherited, any more than those who have
been passed over in silence in a will.
(68) From all these examples, it is perfectly clear that if he who makes
a Latin . . . .
(69) It also seems to be settled that if a patron has appointed his
children his sole heirs to unequal shares of his estate, the property of a
Latin belongs to them in the same relative proportions, for the reason that
where there is no foreign heir, the Decree of the Senate becomes
(70) If a patron should appoint a foreign heir along with his children,
Cælius Sabinus says that the entire estate will belong to the children of
the deceased in equal shares; because when a foreign heir appears, the Lex
Junia does not apply, but the Decree of the Senate does. Javolenus,
however, holds that the children of the patron will, under the Decree of the
Senate, only be entitled to equal shares in that portion of the property to
which foreign heirs would have been entitled under the Lex Junia, before
the enactment of the Decree of the Senate; and that the remaining shares will
belong to them in proportion to their interest in the estate of their
(71) Again, the question arises whether this Decree of the Senate refers
to those children of a patron who are born of a daughter or granddaughter; that
is to say, whether my grandson by my daughter will have a better right to the
estate of my Latin than a foreign heir. The question also arises, whether this
Decree of the Senate applies to Latins who belong to a mother; that is,
whether, in the distribution of the estate of a Latin who belongs to a mother,
the son of a patroness shall be preferred to the foreign heir of the mother. It
was held by Cassius that, in both instances, there was ground for the
application of the Decree of the Senate, but most authorities reject his
opinion, for the reason that the Senate did not have in mind the children of
female patrons who belong to another family, and this is evident from
 Original manuscript illegible.
the fact that it excludes such as have been expressly disinherited; for
it seems to have had in view those who are usually disinherited by their parent
if they are not appointed heirs. For it is not necessary for a mother to
disinherit her son or daughter, nor a maternal grandfather his grandson or
granddaughter, if he or she did not appoint them heirs; whether we consult the
Civil Law or the Edict of the Prætor, by which the possession of an
estate is granted to children who are passed over contrary to the provisions of
(72) Sometimes, however, a freedman who is a Roman citizen dies as a
Latin; for example, where a Latin has obtained the right of Roman citizenship
from the Emperor, with the reservation of the rights of his patron. For the
Divine Trajan decided in a case of this kind that if a Latin obtained the right
of Roman citizenship from the Emperor without the knowledge or consent of his
patron, the said freedman resembles other Roman citizens, and can beget lawful
children; but he will die a Latin, and his children cannot become his heirs,
and also that he can only make a will in such a way as to appoint his patron
his heir, and substitute another for him if he should refuse to accept the
(73) And for the reason that the effect of this Constitution seems to be
that men of this kind never die as Roman citizens, even though they may
subsequently have acquired the right of Roman citizenship under the Lex
Ælia, Sentia or the Decree of the Senate. The Divine Hadrian, induced
by the injustice of this law, caused a Decree of the Senate to be enacted
providing that freedmen who had obtained the right of Roman citizenship from
the Emperor without the knowledge, or against the will, of their patrons, and
afterwards availed themselves of the right by which, under the Lex
Ælia, Sentia or the Decree of the Senate, they would have obtained
Roman citizenship if they had remained Latins, should be considered to occupy
the same position as if they had acquired Roman citizenship under the
provisions of the Lex Ælia Sentia, or the Decree of the
(74) Moreover, the estates of those whom the Lex Ælia Sentia
places in the class of dediticii, belong to their patrons, sometimes
as if they were freedmen and Roman citizens, and sometimes as if they were
(75) For the estates of those who, had it not been for some offence
which they perpetrated after having been manumitted, would have become Roman
citizens, are granted by this same law to their patrons, just as the estates of
those who have become Roman citizens, for they have not the power to make a
will; and this opinion was not unreasonably held by the greater number of
authorities, for it seems incredible that the legislator intended to grant the
right to make a will to men belonging to the lowest rank of freedmen.
(76) The estates of those who, if they had not committed some offence,
would, after their manumission, have become Latins, are granted to their
patrons, just as if they had died Latins. It has not escaped my observation,
however, that the legislator did not express his intention in this manner in a
way which is sufficiently clear.
(77) Let us now consider the succession to which we are entitled by the
purchaser of property.
(78) The property of debtors may be sold either during their lifetime,
or after their death. For example, it is sold during their lifetime when they
conceal themselves for the purpose of defrauding their creditors, and are not
defended while absent; and the same rule applies to those who surrender their
property under the Lex Julia, or when judgment has been rendered against
them after the time has elapsed which has been fixed for the payment of a debt,
partly by the Law of the Twelve Tables, and partly by the Edict of the
Prætor. The property of a debtor is sold after his death, for example,
when it is certain that he has left no heirs, or persons entitled to
prætorian possession, or any other legal successor.
(79) If the property of an insolvent debtor is sold during his lifetime,
the Prætor orders it to be taken into possession and advertised for
thirty consecutive days; but for fifteen days if he is dead. He afterwards
orders the creditors to assemble, and select one of their number as their
representative, that is, one by whom the estate may be sold. Therefore, where
the property of a living debtor is sold, the Prætor orders the sale to
take place within ten days, or if he is dead, within five days. If the debtor
be living, he orders thirty days to be added, and if he is dead he orders
twenty. The reason why he orders a longer time to elapse before the sale of the
property of a living debtor, is for the purpose of showing more care for the
interests of the living by preventing too easy a sale of his estate.
(80) Moreover, the ownership of property under prætorian
possession, or of the property of a debtor which is sold, is not absolute, but
only provisional. Ownership under quiritarian right is only acquired by
usucaption. Sometimes, however, it happens that ownership by usucaption can not
be acquired by purchasers of the property of a debtor, for example, when an
alien is the purchaser. . . . .
(81) Again, debts due to, or by the party from whom property is
obtained, are not owed to, or by the prætorian possessor, or the
purchaser of the property of the debtor; but can be collected by means of
equitable actions, which we will explain in a subsequent Commentary.
(82) There are successions of other kinds which were not established by
the Law of the Twelve Tables or by the Edict of the Prætor, but have been
adopted by common consent.
(83) For when the head of a household gives himself in adoption, or a
woman places herself in the hand of another, all their property, incorporeal
and corporeal, as well as all debts due to them, are acquired by the adoptive
father, or the purchaser, with the exception of those that are extinguished by
the forfeiture of civil rights; as, for instance, usufructs, the obligation of
the services of freedmen which is contracted by oath, and claims in legal
actions where issue has been joined.
(84) On the other hand, any debt owed by the party who gave himself in
adoption, or who came into the hand of another, does not
 Original manuscript illegible.
pass to the purchaser or to the adoptive father, unless the indebtedness
was hereditary; for then, because the adoptive father or the purchaser becomes
the heir, they are directly liable; but he who gave himself in adoption, and
the woman who came into the hand of another, cease to be heirs. But if the
persons referred to are indebted in their own names, although neither the
adoptive father nor the purchaser becomes liable, nor does he who gave himself
in adoption, nor the woman who came into the hand of another remain bound, for
the reason that they are released from liability by their loss of civil rights;
still an equitable action is granted against both, on the ground that their
forfeiture of civil rights has been rescinded, and if no defence is made to
this action, the Prætor will permit all the property to be sold by the
creditors which would have belonged to them, if they had not been subjected to
the authority of another.
(85) Likewise, if an heir, before he declares his acceptance of the
estate of an intestate, or acts as heir to the same, surrenders the estate in
court, he to whom it was surrendered becomes the heir absolutely, just as if he
himself had been legally called to the succession. If, however, the heir should
surrender the estate after having accepted it, he will still remain the heir,
and for this reason he will be liable to the creditors, and he must transfer
the corporeal property belonging to the estate just as if he had surrendered
the separate articles in court; but the debts are extinguished, and in this way
the debtors to the estate profit by the transaction.
(86) The same rule of law applies where a testamentary heir accepts the
estate, and then surrenders it in court; but if he surrenders the estate before
entering on it, his act will be of no force or effect.
(87) The question arises whether a proper and necessary heir, by
surrendering an estate in court, performs an act which is valid. Our preceptors
hold that such an act is void; authorities of the other school, however, think
that the same effect is produced as that caused by other heirs after the estate
had been entered on; for it makes no difference whether a party becomes an heir
either by declaring his acceptance, or as acting in the capacity of heir, or
whether he is compelled by law to accept the estate.
(88) Let us now pass to other obligations, the principal division of
which is into two classes, for every obligation either arises from a contract,
or from an offence.
(89) And first, let us examine those which arise from contracts, of
which there are four different kinds; for an obligation is contracted either by
delivery of property, verbally, by writing, or by consent.
(90) An obligation by the delivery of property is contracted, for
example, in the case of a loan for consumption. This generally takes place with
reference to articles which are susceptible of being weighed, counted, or
measured; such as money, wine, oil, grain, bronze, silver, and gold. This kind
of property we transfer either by counting, measuring or weighing it with the
understanding that it shall belong to him who receives it, and that, at some
time or other, not the same article, but another of the same nature, shall be
returned to us, and therefore
an obligation of this kind is called mutuum, because what was
given to you by me, from being mine becomes yours.
(91) He also who received something that was not due from a person who
paid him through mistake, is liable under a contract of this description, for a
personal action can be brought against him under the formula, "If it appears
that he was required to give"; just as if he had received the property as a
loan for consumption. Hence certain authorities hold that a ward or a woman to
whom payment was made of something which was not due, through mistake, and
without the authority of his or her guardian, is not liable to a personal
action; any more than they are for a loan for consumption. This species of
obligation does not, however, appear to arise from a contract, for a party who
gives with the intention of paying a debt, rather desires to discharge an
obligation than to incur one.
(92) An obligation is verbally contracted by question and answer, as for
instance: "Do you solemnly agree to give it to me?" "I do solemnly agree."
"Will you give it?" "I will give it." "Do you promise?" "I do promise." "Do you
pledge your faith?" "I do pledge my faith." "Do you guarantee?" "I do
guarantee." "Will you do this?" "I will do it."
(93) The verbal obligation contracted by the expressions, "Do you
solemnly agree to give?" "I do solemnly agree to give," is peculiar to Roman
citizens; the others belong to the Law of Nations, and therefore they are valid
among all men, whether they are Roman citizens or aliens. And even if they are
uttered in the Greek language they are still valid, so far as Roman citizens
are concerned, if they understand Greek; and on the other hand, although they
may be stated in Latin, they will, nevertheless, be binding on foreigners,
provided they are familiar with the Latin language. The obligation contracted
by the words, "Do you solemnly agree to give?" "I do solemnly agree to give,"
is so peculiar to Roman citizens, that it cannot properly be expressed in the
Greek language, although it is said to have been derived from the Greek.
(94) Therefore, it is said that there is one instance in which an alien
may be bound by this phrase, that is to say, when our Emperor interrogates the
ruler of a foreign people with reference to concluding peace, as follows: "Do
you solemnly agree that peace shall exist?" or where the Emperor himself is
interrogated in the same manner. This, however, is said to be too subtle a
refinement, for if anything should be done to violate a treaty, an action is
not brought under the stipulation, but the property is claimed by the law of
(95) It may be doubted if anyone . . . . .
(95a) ....  a debtor, by the order of his wife, provided
her guardian consents, may make a statement of the amount of dowry which he
owes. Another, however, cannot be bound in this way, and therefore if any other
person promises a dowry to the husband in behalf of his wife, he will be liable
under the common law, provided the husband had previously stipulated.
 Original manuscript illegible.
(96) An obligation is likewise contracted by one of the parties speaking
and promising the other without being interrogated; as where a freedman swears
that he will give a present, or perform some labor or service for the benefit
of his patron; and this is the sole instance in which an obligation is
contracted by oath, for in no other are men rendered liable on account of
having been sworn, as will be apparent if the Roman law is examined; although
if we ascertain what the law is among aliens by searching the records of other
states we might come to a different conclusion.
(97) If we stipulate that something shall be given to us which cannot be
transferred, the stipulation is void; for example, if anyone stipulates for the
transfer of a freeman whom he thinks to be a slave; or of a dead slave whom he
believes to be living; or of a sacred or religious place which he supposes to
be subject to human law.
(97a) Likewise, if anyone stipulates for something which cannot, in the
nature of things, exist, as for instance, a hippocentaur, such a stipulation
also is void.
(98) Moreover, if anyone stipulates under a condition which cannot take
place, for example, if he should touch the sky with his finger, the stipulation
is void. Our preceptors however, were of the opinion that a legacy bequeathed
under an impossible condition should be paid, just as if it had been left
unconditionally; but the authorities of the other school hold that a legacy is
just as invalid as a stipulation, under such circumstances, and, indeed, no
good reason can be given for establishing a distinction.
(99) Moreover, a stipulation is void if anyone ignorantly agrees that
his own property shall be transferred to himself; as what already belongs to a
person cannot be given to him. Finally, a stipulation is void where anyone
stipulates as follows: "Do you solemnly agree to pay after my death?" or "Do
you solemnly agree to give after your death?" The stipulation, however, is
valid if anyone stipulates as follows, "Do you solemnly agree to give at the
time of my death?" or "Do you solemnly agree to give when you die?" that is,
the obligation is valid as it relates to the last moment of the life of the
stipulator or promisor, for it has been considered contrary to legal principle
to make the obligation attach to the person of the heir.
(100) Again, we cannot stipulate as follows, namely: "Do you solemnly
agree to pay on the day before I die, or on the day before you die?" for the
expression: "On the day before anyone dies," can only be ascertained after
death has taken place; and, moreover, where death has occurred the stipulation
becomes retrospective, and means the same as, "Do you solemnly agree to pay to
my heir?" which is clearly void.
(101) What we have stated with reference to death must also be
understood to apply to the loss of civil rights.
(102) A stipulation is also void when anyone does not answer the
question which he was asked; for instance, if I stipulated for ten sesterces to
be paid by you, and you promise five; or if I stipulate absolutely, and you
(103) Moreover, a stipulation is void if we stipulate to pay a party to
whose authority we are not subject. Hence the question arose to what extent the
stipulation would be valid if a person should agree to pay one to whose
authority he is not subject. Our preceptors are of the opinion that it would be
valid for the entire amount, and that he who stipulated would be entitled to
all of it, just as if he had not added the name of a stranger. The authorities
of the other school, however, think that only half is due to him, and that the
stipulation is void so far as the other half is concerned.
(103a) The case is different where, for instance, I stipulate as
follows: "Do you solemnly agree to pay my slave or my son who is under my
control?" for then it is settled that the entire amount is due, and that I can
collect it from the promisor and the result is the same when I only stipulate
for payment to my son who is under my control.
(104) Again, the stipulation is void where I stipulate with one who is
under my control, and also if he should stipulate with me. Still, a slave
belonging to the household, a daughter under paternal authority, and a woman in
the hand of her husband, cannot only not bind themselves to the persons to
whose authority they are subject, but they cannot bind themselves to anyone
(105) It is clear that a dumb person can neither stipulate nor promise;
and the same rule applies to one who is deaf, because he who stipulates must
hear the words of the promisor, and he who promises must hear those of the
(106) An insane person cannot transact any business, because he does not
understand what he is doing.
(107) A ward can transact all kinds of business, provided, however,
that, as the authority of his guardian is necessary it be granted, just as if
he himself was bound; for he can render another liable to himself even without
the authority of his guardian.
(108) The same rule of law applies to women who are under
(109) Still, what we have stated with reference to a ward is only true
of one who has some intelligence; for an infant, and a child who is almost an
infant, do not differ greatly from an insane person, because minors of this age
have no judgment; but in the case of such minors a more indulgent
interpretation of the law is made on account of the benefit resulting to
(110) Although, as we have already stated, a party not subject to our
authority cannot stipulate for us, we can associate another with us in the
stipulation which we make, who also stipulates for the same thing, and who is
commonly called a joint stipulator.
(111) He, also, has a right of action as well as ourselves, and payment
can be made to him as well as to us, but he can be compelled by the action of
mandate to transfer to us anything which he may recover.
(112) Again a joint stipulator can also make use of other words than
those which we employ. Hence, for example, if I stipulate, as follows: "Do you
solemnly agree to pay?" the joint stipulator may say,
"Do you pledge your faith for the same?" or "Do you guarantee the same?"
or vice versa.
(113) Likewise, he may stipulate for less, but not for more, than the
stipulator. Therefore, if I stipulate for ten sesterces, he can stipulate for
five; but, on the other hand, he cannot stipulate for more. Moreover, if I
stipulate absolutely, he can stipulate under a condition, but not vice
versa. The term "more or less," is understood not only to refer to
quantity, but also to time, for to make payment immediately is more, and to do
so after a certain period is less.
(114) To this rule there are certain exceptions, for the heir of a joint
stipulator has no right of action. Likewise, the act of a slave as joint
stipulator is void, although in all other cases he acquires property for his
master by a stipulation. The better opinion is, that, the same rule applies to
a slave in domestic servitude, because he occupies the place of a slave.
Moreover, a son who is under the control of his father can act as a joint
stipulator, but he does not acquire anything for his father; although, under
all other circumstances, by stipulating he makes acquisitions for his benefit.
Nor will he be entitled to any right of action unless he has been released from
paternal control without the forfeiture of civil rights; as, for instance, by
the death of his father, or because he himself has been installed a priest of
Jupiter. We understand that the same rule applies to a daughter under the
control of her father, and a woman in the hand of her husband.
(115) Others are usually liable for the party who promises, some of whom
we call sponsors, others guarantors, and others still, sureties.
(116) A sponsor is interrogated as follows: "Do you solemnly agree to
pay the same?" a guarantor as follows: "Do you guarantee the same?" and a
surety as follows, "Do you pledge your faith for the same?" We shall see what
names should be properly applied to those who are interrogated, as follows,
namely: "Will you give the same?" "Do you promise the same?" "Will you do the
(117) We often accept sponsors, guarantors, and sureties, when we desire
to be provided with additional security; and we rarely make use of a joint
stipulator, except when we stipulate that something shall be paid after our
death. If we make such a stipulation ourselves, our act is void, and hence the
joint stipulator is employed so that he may bring suit after our death; but if
he should recover anything, he will be liable by an action of mandate to
deliver it to our heir.
(118) The positions of a sponsor and a guarantor are similar, that of a
surety is extremely unlike the others.
(119) For the former can enter into no obligations except verbal ones,
although sometimes the party who promises is not bound, as for instance, where
a ward or a woman without the authority of his or her guardian, promises to
make a payment after his or her death. It is a question, however, if a slave or
an alien should promise, whether his sponsor or guarantor will be liable.
A surety can enter into every kind of obligation, that is to say,
whether it is contracted either by words, or by writing, or by consent,
and it makes no difference whether the obligation be a civil or natural
one. To such an extent is this true, that he is also liable for a slave,
whether it be a stranger who accepts him as security for the slave, or whether
.it be the master himself who does so for a debt which is due to him.
(120) Moreover, the heir of a sponsor and a guarantor is not liable,
unless we have reference to the heir of an alien guarantor, in whose State
another rule than ours prevails; but the heir of a surety is also liable.
(121) Likewise, a sponsor and a guarantor are released by the Lex
Furia from liability at the expiration of two years; and no matter what may
be the number of the sureties at the time when the debt can be collected the
obligation is divided into as many parts as there were sureties at that time,
and each one of them is only liable for his respective share. Sureties,
however, are perpetually liable, and no matter what may be their number, each
of them is bound for the entire amount of the debt; and therefore the creditor
is at liberty to collect the whole debt from any one of them whom he may
select. But, now, according to a letter of the Divine Hadrian, a creditor is
compelled to collect the proportionate part of the debt from each of the
sureties who is solvent at the time. Hence, this letter differs from the Lex
Furia in that if any one of the sponsors or guarantors should not be
solvent, this does not increase the liability of the others; but if even only
one of the sureties is solvent, the entire burden of all the others is imposed
But, as the Lex Furia only applies to Italy, the result is that
in the other provinces both sponsors and guarantors, like "sureties, are
perpetually liable; and each one of them is bound for the entire amount of the
debt, unless they are, to a certain extent, relieved by the letter of the
(122) Moreover the Lex Apuleia, introduces a certain partnership
between sponsors and guarantors; for if any of them should pay more than his
share he will have a right of action against the others to recover the surplus.
This law was enacted before the Lex Furia, and therefore the question
arises whether, after the passage of the Lex Furia, the benefit of the
Lex Apuleia still remains. This is certainly the case outside of Italy,
for the Lex Furia is in force only in Italy, while the Lex Apuleia
embraces also the other provinces; but whether the benefit of the Lex
Apuleia still continues to exist in Italy, is a question. But the
Lex Apuleia does not apply to sureties, and therefore, if a creditor
recovers his entire debt from one surety the latter alone must suffer the loss,
that is to say, if the party for whom he became surety is not solvent. But, as
appears from what has been already stated, he whom a creditor sues for the
entire amount of the debt can, under the letter of the Divine Hadrian, petition
for the action to be brought against him only for his proportionate share.
(123) Moreover, it is provided by the Lex Cicereia, that a
creditor who accepts sponsors or guarantors, must previously publish and
declare the amount of the claim for which he receives security, and the
number of sponsors or guarantors that he will accept as sureties for the
obligation; and unless he does so, the sponsors and guarantors are permitted
within the term of thirty days to demand a preliminary trial, by which it may
be ascertained whether the declaration required under this law had been made,
and if it should be decided that it had not been made, they shall be released
from liability. No mention of sureties was made in this law, but it is
customary when we receive sureties to make this statement.
(124) Moreover, the benefit of the Lex Cornelia is common to all,
and by its provisions the same person is forbidden to become a surety for the
same debtor to the same creditor, during the same year, for a larger sum of
money than twenty thousand sesterces; and although sponsors or guarantors may
bind themselves for a larger amount, for example, for a hundred thousand
sesterces, they will still only be liable for twenty thousand. Again, we say
that money which is lent under this law includes not only that which was
actually loaned, but all certain to be due at the time that the obligation was
contracted; that is to say, whatever is unconditionally included in the
obligation, and therefore the money which we stipulate to be paid on a certain
day comes under this provision, for the reason that it is certain that it will
be due, although it cannot be collected until after the time has elapsed. All
kinds of property are comprehended in this law under the term "money," and
therefore, if we stipulate for wine, grain, land, or a slave, this law must be
(125) In some cases, however, the law permits security to be taken to an
indefinite amount; as for instance, for the purpose of dowry, or for what may
be due to you under a will. Security may also be taken by an order of court. It
is also provided by the Lex Julia, which imposes a tax of one twentieth
on estates, that the Lex Cornelia shall not apply to the securities
referred to in this law.
(126) Under this rule, also, the condition of all sponsors, guarantors,
and sureties is the same, in that they cannot be liable for more than their
principal owes; on the other hand, however, they may be liable for less, as we
have stated with reference to a joint stipulator; for as is in his case, their
liability is also accessory to the obligation of the principal, and the
liability of the accessory cannot be greater than that of the principal.
(127) A further similarity exists between them in that, if the sureties
should pay anything for the principal debtor, they will have a right to the
action of mandate against him to recover it. Sponsors also, under the Lex
Publilia are entitled to still another remedy, as they have a right to
bring an action for double the amount, which is called the action to recover
(128) An obligation contracted by writing is made, for instance, by the
entry of claims on an account book. Entries of this description are of two
kinds; either from a thing to a person, or from a person to a person.
(129) The record from a thing to a person is made, for example, where
what you owe me on account of a purchase, a lease, or a partnership, is entered
upon my book as having been paid to you.
(130) The record of a claim from a person to a person is made, for
instance, when the amount that Titius owes me is charged to you on my book;
that is to say as if Titius had substituted you for himself to me.
(131) The case of those claims which are designated as cash is
different, as the obligation for them has reference to the thing itself, and
not to a charge in writing; although they are not valid unless the money has
been actually paid; for the payment of money makes the obligation a legal one.
For which reason we very properly say that the entry of a claim as cash does
not constitute an obligation, but is merely evidence that the obligation has
(132) Hence, it is not proper to say that aliens are also bound by
claims as cash, because their liability does not depend upon the entry of the
claim, but upon the payment of the money; and this kind of an obligation
belongs to the Law of Nations.
(133) A reasonable doubt has arisen as to whether aliens are bound by
claims which have been entered on an account book; for an obligation of this
kind is, to a certain extent, one contracted under the Civil Law, which was the
opinion of Nerva. It was, however, held by Sabinus and Cassius that if the
entry was made as from a thing to a person, aliens would also be liable; but if
it was entered as from a person to a person, this would not be the case.
(134) Moreover, an obligation by writing is considered to be created by
written evidences of debt, or promises to pay; that is to say, where anyone
states in writing that he owes a debt, or will make payment in such a way, of
course, that a stipulation is not entered into on this account. This kind of
obligation is peculiar to aliens.
(135) Obligations are created by consent, in purchase and sale, leasing
and hiring, partnership and agency.
(136) Moreover, we say that obligations are contracted by consent in
these different ways, because no form of words or writing is required, but it
is sufficient for the parties to the transaction to have consented. Therefore,
agreements of this kind can be entered into by persons who are absent, as for
instance, by letter or by messenger; while, on the other hand, verbal
obligations cannot be created between absent persons.
(137) Likewise, in contracts of this description the parties are
reciprocally liable, because each is liable to the other to perform what is
proper and just; while, on the other hand, in the case of verbal obligations
one party stipulates and the other promises; and in the entry of claims one
party creates an obligation by doing so, and the other becomes liable.
(138) An absent person can be charged in writing with the disbursement
of money although a verbal obligation cannot be contracted with one who is
(139) Purchase and sale are contracted as soon as the price is agreed
upon, although the price may not have been paid, or any earnest
money given; for what is given by way of earnest money is only a proof of the
conclusion of a contract of purchase and a sale.
(140) Moreover, the price must be certain; for, otherwise, if we agree
that property shall be purchased for the amount at which Titius may estimate
its value, Labeo denies that a transaction of this kind has any force or
effect; and Cassius agrees with him. Ofilius holds that it is a purchase and
sale, and Proculus adopts his opinion.
( 141 ) Moreover, the price must consist of money, for it is seriously
questioned whether it can consist of any other property, as for instance, a
slave, a robe, or a tract of land. Our preceptors think that a price can
consist of other property, and hence is derived the common opinion that
purchase and sale are contracted by exchange of articles, and that this kind of
purchase and sale is of the highest antiquity, and in proof of their
contention, they adduce the statement of the Greek poet Homer, who somewhere
"Here landed Achæan ships in search of wine. They purchased it
with copper and with iron; With hides, with horned cattle, and with
Authorities belonging to the other school dissent from this, and think
that the exchange of articles is one thing, and purchase and sale another, as
where property is exchanged it cannot be determined what is sold and what is
given by way of price; and, on the other hand, it is absurd to consider that
both articles are sold, and at the same time given by way of price.
Cælius Sabinus says that if you have some property for sale, for example
land, and I receive it, and give you a slave by way of price, the land should
be considered to have been sold, and the slave given by way of price, as the
land is what is received.
 The Mohammedan law provides that the declaration and
acceptance by vendor and purchaser is all that is requisite to conclude a sale,
and render it binding. It is considered preferable to make the statement in the
past tense, and that both the articles and the price should be at hand. The
amount of the purchase-money must be certain, but where an exchange —
which is to be held to be a sale — takes place, absolute certainty is not
necessary. "Sell anything that is in exchange for a different kind, in whatever
manner you please, and without regard to the quality." (The Hedaya XVI, 1.) The
Ottoman Code defines a sale to be "the interchange of one thing with another."
(The Medjille, Art. 105.)
Under the Mosaic Law, payment of the purchase-money caused the title to
the object of the sale to at once vest in the purchaser. The rule of the Talmud
changed this, however, and the property passed as soon as the vendor obtained
possession, whether the price was, or was not paid. Actual transfer of
possession was therefore indispensable. (Mishnah, Introduction to Chap. IV.) In
England, the transfer of title to specific articles depends upon the agreement
of the parties; where they are not specified, it does not pass until their
identity has been determined. Where the sale is for cash, the purchaser has no
right to the property till he tenders the entire amount. (Stephen, Commentaries
on the Laws of England II, II, V, 3.) It is of the essence of the contract of
sale in American law that the price must be certain, the article capable of
identification, and that both parties must concur in the agreement. The sale
must be complete for the right of ownership to pass without question. Delivery
is not essential, as it was under the Roman system. (Parsons, The Law of
Contracts, I, III, 4.) — ed.
(142) Moreover, leasing and hiring are governed by similar rules, for,
unless the amount paid is certain, the contract of leasing and hiring is not
considered to have been concluded.
(143) Hence, if the price is left to the judgment of another, for
instance, at the amount that Titius may deem proper, the question arises
whether the contract of leasing and hiring has been made. Therefore, if I give
clothing to a fuller to be cleaned and taken care of, or to a tailor to be
repaired, and the price was not stated at the time, but I was to pay the amount
afterwards agreed upon between us, the question arises whether a contract for
leasing and hiring has been entered into.
(144) Likewise, if I lend an article to you to be used, and I receive,
in turn, another article to be used by myself, the question arises whether a
contract of leasing and hiring has been made.
(145) Purchase and sale and leasing and hiring are considered to be so
nearly related to one another that in certain cases the question arises whether
the contract is one of purchase and sale, or one of leasing and hiring. For
instance, if land is perpetually leased — which happens in the case of
real property belonging to municipalities — under the condition that, as
long as the rent is paid, neither the lessee nor his heir shall be deprived of
the land; the better opinion is that this is a contract of leasing and
(146) Again, if I deliver gladiators to you under the condition that
twenty denarii shall be paid to me for the exertions of every one who
issues safe and sound from the arena; and a thousand denarii for every
one who is killed or disabled; the question arises whether a contract of
purchase and sale, or one of leasing and hiring has been made. The better
opinion is that, in the case of those who come forth safe and sound, a contract
of leasing and hiring was concluded; but so far as those who have been killed
or disabled are concerned the contract is one of purchase and sale, for it is
apparent that the contract depends upon circumstances taking place as it were
under a condition; a contract of sale or hiring having been entered into with
reference to each gladiator, for there is no doubt now that property can be
sold or leased conditionally.
(147) Likewise, where it is agreed upon between a goldsmith and myself
that he shall make me a number of rings of a certain weight and style out of
his own gold, and shall receive, for example, two hundred denarii; the
question arises whether a contract of purchase and sale, or one of leasing and
hiring is made. Cassius says that the material is the object of purchase and
sale, but that the labor depends upon a contract of leasing and hiring; still,
the greater number of authorities are of the opinion that the contract is one
of purchase and sale. But if I furnish him with my own gold, and the price of
the work is agreed upon, it is settled that the contract is one of leasing and
(148) We are accustomed to form a partnership either of all the property
of the partners, or with reference to one certain business, for example, the
purchase and sale of slaves.
(149) An important discussion arose, however, as to whether a
partnership could be formed in such a way that one partner would have a greater
share in the profits and be liable for a smaller amount of the losses. Quintus
Mucius held that this was contrary to the nature of a partnership, but Servius
Sulpicius, whose opinion has prevailed, thought that a partnership could be
formed in such a way that one of the partners should not be liable for any of
the losses, and be entitled to a part of the profits, provided that his
services were so valuable as to make it just for him to be admitted into the
partnership under such an agreement. For it is settled that a partnership can
be formed in such a way that one partner shall furnish all the money and that
the other shall not furnish any, and the profits nevertheless be equally
divided among them; for frequently the services of a person are worth as much
(150) It is certain, however, that if no agreement concerning the
division of profit and loss should be made among the parties, the benefit and
the disadvantage shall be equally shared between them. If the share of each
should be stated, so far as the profit is concerned, but omitted with reference
to the loss, the loss must be shared in the same way as the profit.
(151) Moreover, a partnership continues to exist as long as the partners
give their consent, and when any one of them renounces the partnership, it is
dissolved. It is clear, however, if a person renounces a partnership in order
that he alone may obtain some pecuniary advantage, for instance, if a partner
of mine in the entire property should be left an heir by anyone, and should
renounce the partnership in order that he alone may profit by the estate, he
can be compelled to share this gain with his partners. If, however, he obtains
any profit, without intending to do so, it shall belong to him alone, and I
will only be entitled to whatever may be acquired by him after he renounces the
(152) A partnership is also dissolved by the death of a partner, for he
who enters into one selects a certain person for his associate.
(153) It is also said that a partnership is dissolved by forfeiture of
civil rights, for the reason that under the rule of the Civil Law loss of civil
rights is considered as equivalent to death; but if the partners still consent
to the continuance of the partnership a new one is considered to be formed.
(154) Likewise, a partnership is dissolved if the property of one of the
partners is disposed of at either public or private sale. The kind of
partnership, of which we are speaking, however, that is one which is formed by
mere consent, belongs to the Law of Nations, and therefore continues to exist
according to natural reason among all men.
(155) Agency is established whether we direct it to take place for our
own benefit or for that of another; and hence whether I direct you to transact
my business or that of another, the obligation of mandate is contracted, so
that both of us will reciprocally be liable, for whatever you must do for me,
or I must do for you, in good faith.
(156) If, however, I direct you to perform some act for your own
benefit, the mandate will be to no purpose, for what you are about to do for
your own advantage should depend on your own judgment, and not be done on
account of my mandate. Therefore, if you have some idle money at home, and I
advise you to lend it at interest, and you lend it to a party from whom you
cannot collect it, you will not be entitled to an action of mandate against me.
Again, if I advise you to purchase some article, even though it will not be to
your advantage to do so, I will still not be liable to you in an action of
These rules have been so well established that the question arose
whether a party is liable in an action of mandate who advised you to lend money
to Titius. Servius denied that liability is incurred, and thought that an
obligation could not arise in this instance, any more than in one where a
person is generally advised to lend his money at interest. We, however, adopt
the contrary opinion of Sabinus, for the reason, that you would not have lent
money to Titius if you had not been advised to do so.
(157) It is evident that, where anyone directs an act to be done which
is contrary to good morals, an obligation will not be contracted; for instance,
if I direct you to commit a theft, or some injury against Titius.
(158) In like manner if I should be directed to perform some act after
my death the mandate is void, for the reason that it has been generally decided
that an obligation cannot begin to take place with an heir.
(159) Where a mandate was properly given and while the matter still
remained unchanged was revoked, it is annulled.
(160) Again, if before a mandate was begun to be executed, the death of
either of the parties should take place, that is the death of him who gave the
mandate, or of him who received it, the mandate is annulled. However, for the
sake of convenience, the rule has been adopted that if the party who gave me
the mandate should be dead, and I, being ignorant of his death, should execute
the mandate, an action of mandate can be brought against me; otherwise a just
and natural want of information would occasion me loss. Similarly to this, it
has been decided by the greater number of authorities that if my debtor should,
through ignorance, pay my steward who has been manumitted, he will be released
from liability; although, otherwise, he could not be released under the strict
rule of law, because he paid another than the one whom he should have paid.
(161) If the person to whom I gave a proper mandate exceeds his
authority, I will be entitled to an action of mandate against him for the
amount of my interest in having the mandate executed, provided he was able to
execute it; but he cannot bring an action against me. Hence, for example, if I
should direct you to purchase a tract of land for me for a hundred thousand
sesterces, and you purchase it for a hundred and fifty thousand, you cannot
bring an action of mandate against me, even though you are willing to convey
the land to me for the price for which I directed you to purchase it; and this
opinion was held by Sabinus and Cassius. If, however, you should purchase it
for a smaller sum, you will certainly be entitled to an action against me; for
anyone who directs land to be bought for a hundred thousand sesterces is
understood also to direct that it be bought for less if this can be done.
(162) In conclusion, it must be remembered that when I give any material
to be manufactured gratuitously, in which case, if I had fixed a price for the
work performed, a contract for leasing and hiring would be made, an action of
mandate will lie; for instance, when I give clothing to a fuller to be cleaned
or pressed, or to a tailor to be repaired.
(163) Having explained the different kinds of obligations which arise
from contracts, we should observe that obligations can not only be acquired by
us by what we do ourselves, but also through those persons who are subject to
our authority, or are in our hand, or under our control by mancipation.
(164) Obligations are also acquired by us through freemen, and the
slaves of others of whom we have possession in good faith; but only in two
instances, that is, where they acquire anything by their own labor, or by means
of our property.
(165) An obligation is also acquired by us in the two cases above
mentioned through a slave in whom we have the usufruct.
(166) Anyone, however, who has the mere quiritarian right in a slave,
although he may be his owner, is still understood to have less right to what he
may acquire than an usufructuary, or a bona fide possessor, for it is
established that, under no circumstances, can the slave acquire anything for
himself; and to such an extent is this the rule, that even if the slave should
expressly stipulate for something to be given to him, or should accept
something in mancipation, in his name, some authorities hold that nothing is
acquired for him.
(167) It is certain that a slave owned in common can acquire for his
masters in proportion to their respective shares, except where by stipulating,
or by accepting in mancipation expressly for one of them, he acquires for him
alone. For example, if he should stipulate as follows: "Do you solemnly agree
to pay to Titius, my master?" Or when he received by mancipation in the
following manner: "I declare that this property belongs to my master Lucius
Titius by quiritarian right, and let it be purchased for him with this piece of
bronze and this bronze balance."
(167a) The question arises whether the addition of the name of one the
masters, or the order of one of them, produces the same effect. Our preceptors
hold that he alone will acquire who gave the order, just as if the slave had
expressly stipulated, or had accepted in mancipation for the single master who
was expressly mentioned. The authorities of the other school think that the
acquisition will be made by all, as if no order had been given.
(168) An obligation is extinguished principally by the payment of what
was due. Wherefore, the question arises that if anyone should pay something for
another with the consent of his creditor, whether he would be released from
liability by operation of law, and this opinion was held by our preceptors; or
whether he remains bound by operation of law, but should defend himself by an
exception on the ground of fraud against his creditor who brings the suit,
which opinion was adopted by the authorities of the other school.
(169) An obligation is also extinguished by means of a release. A
release is, as it were, a fictitious payment, for if I owe you something under
a verbal obligation and you are willing to discharge me from liability, this
can be done by permitting me to question you as follows: "Have you received
what I promised you?" And you reply, "I have received it."
(170) In this manner, as we have already stated, only those obligations
are discharged which have been contracted verbally, but no others; for it seems
to be consistent that an obligation verbally contracted should be released by
other words. Anything which is due for some other reason can be changed into a
stipulation, and then be discharged by a release.
(171) But although we have stated that a release takes place by a
fictitious payment, still a woman cannot make one without the authority of her
guardian; while, on the other hand, payment can be made to her without her
(172) Likewise, a portion of what is due may be legally paid; but it is
doubtful whether it can be partially released when paid.
( 173 ) There is another kind of imaginary payment which is effected by
bronze and balance; but this is used only in certain cases; as, for instance,
where something is due on the ground that there has been a transaction by
bronze and balance, or for the reason that something is due on account of a
(174) This transaction takes place as follows: Not less than five
witnesses and a balance-holder must be present, and then the party who is to be
released must say, "For the reason that I have been condemned to pay you so
many thousand sesterces, I pay and discharge this amount by means of this piece
of bronze and this bronze balance; and this is the first and last pound of
bronze that I pay you in accordance with public law." Then he strikes the
balance with the pound of bronze, and gives it to the party by whom he is
released as if by payment.
(175) In the same way a legatee releases an heir from liability for a
legacy which was left him by condemnation, except that, as the party against
whom judgment was rendered mentions that he has been condemned; so the heir
states that he has been charged by the terms of the will to pay the legacy. An
heir, however, can only be released from liability in this way where the
property constituting the legacy can be weighed or counted, and where the
amount is certain. Some authorities hold that the same rule applies to articles
which can be measured.
(176) Moreover, an obligation is extinguished by novation,
for instance, if I stipulate that what you owe me shall be paid by Titius; for
a new obligation arises by the intervention of a new person, and the
 "Novatio est veteris obligationis in novam translatio
et transfusio." — ed.
first obligation is annulled by being changed into the second one. To
such an extent is this the case, that sometimes, although the subsequent
stipulation may be void, still the first one is disposed of by novation; for
example, if you owe me something and I stipulate that it shall be paid by
Titius after his death, or by a woman, or a ward, without the authority of his
or her guardian; in which case I lose my claim, for the first debtor is
released from liability, and the subsequent obligation is void. The same rule
of law does not apply if I stipulate with a slave, for then the former debtor
remains liable, just as if I had not afterwards stipulated with anyone
(177) When, however, I subsequently stipulate with the same person,
novation only takes place where something new is contained in the subsequent
stipulation, that is to say, if some condition, date, or sponsor should be
either added or omitted.
(178) What we have stated with reference to a sponsor has, however, not
been absolutely settled; for it has been held by authorities of the other
school that neither the addition or omission of a sponsor has the effect of
(179) Moreover, what we stated with reference to the introduction of a
condition effecting novation, must be understood to mean that a novation would
take place if the condition should be fulfilled; but if it should fail, the
former obligation will continue to be operative. But let us see, whether a
party who brings an action in a case of this kind can be barred on the ground
of fraud, or informal agreement; for it seems to have been agreed upon by the
parties that suit could only be brought for the recovery of the property if the
condition of the subsequent stipulation should be fulfilled. Nevertheless,
Servius Sulpicius thought that a novation took place immediately, while the
condition was in suspense, and if it should fail that there would be no cause
of action on either ground, and in this way that the claim would be
extinguished. In consequence of this, he gave it as his opinion that if anyone
should stipulate with a slave for a debt which Lucius Titius owed to him, a
novation would be created, and the claim would be lost; because an action could
not be brought against the slave. In both these instances, however, we make use
of another rule; and novation is not produced under these circumstances any
more than if I should stipulate for what you owe me with an alien, who is not
allowed to participate as a sponsor, by using the expression, "Do you solemnly
(180) An obligation is also extinguished by a joinder of issue, provided
the action brought is authorized by law; for then the original obligation is
dissolved, and the defendant begins to be held liable by the joinder of issue.
But if judgment is rendered against him, the obligation produced by the joinder
of issue is disposed of, and he becomes liable under the judgment. This is the
reason why it was stated by the ancient authorities that a debtor is compelled
to make payment before issue has been joined; for, after this has been done, he
will be liable if judgment should be rendered against him, and if he is
condemned, he will be compelled to satisfy the judgment.
(181) Hence, if I bring a legally authorized action for the collection
of a debt, I cannot afterwards, under the strict rule of law, sue a second
time, as the statement that the defendant is required to pay me something will
be without effect; for the reason that by joinder of issue he ceases to be
obliged to make payment. The case is different if in the first place I brought
an action derived from the authority of a magistrate; for then the obligation
will still continue to exist, and, therefore, by the strict rule of law, I can
bring another action; but I can be barred by an exception grounded on a
previous judgment, or on a former joinder of issue. We shall explain in a
subsequent Commentary what actions are authorized by law, and what are derived
from the authority of a magistrate.
(182) Let us now pass to obligations which arise from the commission of
crime; for instance, where anyone perpetrates a theft or robbery, or damages
property, or commits any injury; and the obligation growing out of all these
matters is of one kind, while obligations arising from contracts are divided
into four classes, as we already have explained.
(183) Servius Sulpicius and Masurius Sabinus state that there are four
kinds of theft, manifest, non-manifest, the receiving of stolen property, and
the delivery of stolen property to another. Labeo says that there are two,
namely, manifest and non-manifest theft, for the receiving of stolen goods and
their delivery to another rather give ground to actions connected with theft
than are different kinds of theft, and this seems to be the more correct
opinion, as will appear hereafter.
(184) Some authorities hold that manifest theft is "committed when the
culprit is taken in the act; others, however, go further and say that it occurs
when he is taken in the place where the theft was perpetrated, for instance,
where olives are stolen from an olive orchard, or grapes from a vineyard, while
the thief is in the olive orchard or the vineyard; or, if the theft was
committed in a house, as long as the thief remains therein. Others go still
further, and hold that manifest theft is committed until the thief has carried
the stolen property to the place where he intends to leave it.
Others go even further, and say that theft was committed as long as the
thief holds the property. This last view has not been adopted, and the opinion
of those who hold that if the thief is taken before he has conveyed the stolen
property to the place where he intends to leave it, it is manifest theft,
should not be accepted; for the reason that great uncertainty may arise whether
the time for his detection should be limited to one day or to several. This
doubt arises because thieves often intend to transport stolen property to other
cities or into other provinces. Therefore, the first and second opinions have
been generally approved, and the greater number of authorities accept the
(185) From what we have already said it will be understood what
non-manifest theft is, for what does not belong to this class belongs to the
(186) The receiving of stolen property takes place when it is sought for
and found in the possession of anyone, in the presence of witnesses; for even
though the party may not be the thief, a special action can be brought against
him which is called a suit for the recovery of stolen property.
(187) Delivery of stolen goods is said to take place when the stolen
property is offered to you by anyone in order that it may be found in your
possession, and is given to you with the intention that it should be discovered
on your premises rather than upon those of him who gave it to you. If the
property should be found on your premises an action will lie in your favor
against the party who gave it to you, even though he may not be the thief,
which is called an action on account of the delivery of stolen property.
(188) An action for preventing the search for stolen goods may be
brought against him who hinders anyone from searching for stolen property on
(189) The penalty for manifest theft was capital under the Law of the
Twelve Tables, for a freeman, after having been scourged, was delivered up to
the party against whom he committed the theft; and whether he became his slave
by this proceeding, or was placed in the position of one against whom judgment
had been rendered for a debt, was a matter of dispute among the ancient
lawyers. The punishment of scourging was also inflicted upon a slave, but the
harshness of the penalty was subsequently disapproved of, and in the case of a
slave, as well as of that of a freeman, an action for fourfold damages was
established by the Edict of the Prætor.
(190) The penalty for non-manifest theft was double damages by the Law
of the Twelve Tables, and this the Prætor has preserved.
(191) The penalty for the concealment or delivery of stolen goods
imposed by the Law of the Twelve Tables was triple damages, and this, in like
manner, has been preserved by the Prætor.
(192) The action for preventing search, introduced by the Edict of the
Prætor, requires the payment of fourfold damages. The ancient law,
however, did not impose any penalty for this offence; but only prescribed that
whoever desired to make search should do so naked, wearing a girdle, and
carrying a dish; and if he found anything, it ordered that this should be
considered manifest theft.
(193) The nature of the girdle was a matter of controversy, but the
better opinion is that it was some kind of cloth by which the private parts
were concealed. This entire rule is ridiculous, for anyone who would prevent a
person from searching when clothed, would also do so if he were naked; and
especially because, if anything were found under such circumstances he would be
subjected to a more severe penalty. Then, whether he was ordered to have a dish
in his hands for the reason that they being occupied, he might bring nothing
secretly into the house; or whether if he found anything, he might place it in
the dish; neither of these provisions would have any effect if the property
sought for was of such a size or description that it could neither be brought
into the house or be placed in the dish. There is no doubt whatever that the
requirements of the law were satisfied, no matter what material the dish
(194) For the reason that the law, in a case of this kind, declared such
an offence to be manifest theft, there are some writers who hold that manifest
theft may be either that defined by law, or that established by nature; that
defined by law being what we are discussing, and that established by nature
being what we have previously explained. The better opinion, however, is that
manifest theft should be understood to be that which has been actually
committed, for the law cannot cause a non-manifest thief to become a manifest
one, any more than it can cause one who is not a thief at all, to become a
thief, or anyone who is not an adulterer, or a homicide, to become an
adulterer, or a homicide. The law, however, can cause anyone to be liable to a
penalty, just as if he had committed theft, adultery, or homicide, even though
he had not been guilty of any of these crimes.
(195) Again, theft is committed not only when a person removes the
property of another with the intention of appropriating it, but, generally
speaking, when anyone handles the property of another without the consent of
(196) Therefore, if anyone makes use of property deposited with him for
safe keeping, he commits theft, and if having received an article for the
purpose of using it, he employs it for some other purpose, he becomes liable
for theft; for example, if anyone being about to invite friends to supper
borrows silver plate and takes it away with him to a distance; or if anyone
borrows a horse to carry him to a certain place, and takes it much further
away, or, as the ancient lawyers stated by way of example, if he takes the
horse into battle.
(197) It was decided, however, that those who use property for another
purpose than that for which they received it, commit theft, provided they know
that they do this contrary to the will of the owner, and that he, if he knew of
it, would not allow it; but if they believe that he would permit them to do so,
this should not be considered theft. And the distinction is perfectly proper,
as theft is not committed without unlawful intent.
(198) If anyone thinks that he is handling an article contrary to the
will of the owner, but the owner is in fact willing for him to do so this is
said not to be theft; and hence the question arose and was discussed, whether
if Titius should solicit my slave to steal certain property belonging to me,
and deliver it to him; and the slave should notify me, and I, desiring to
detect Titius in the crime, should permit my slave to take the property to him,
whether Titius would be liable to me in the action of theft, or in the one for
corrupting a slave, or whether he would be liable in neither. The answer is
that he would be liable in neither action, for he would not be liable in the
action of theft, for the reason that he did not handle the property contrary to
my will; and he would not be liable in the action for corrupting the slave, for
the reason that the slave was not rendered any worse.
(199) Sometimes, however, a theft of persons who are free is committed,
for example where anyone of my children who is under my control, or a wife in
my hand, or a judgment debtor, or a gladiator whom I have hired is secretly
(200) Anyone may even commit a theft of his own property, as for
instance, where a debtor secretly removes an article which he has pledged to
his creditor, or where I surreptitiously abstract my own property from a
bona fide possessor of the same; and hence it has been decided that he
who conceals the fact that a slave who is held by a bona fide possessor
has returned to him, commits theft.
(201) Again, on the other hand, it is sometimes permitted to seize and
acquire by usucaption property which belongs to another; and in such cases
theft is not held to have been committed; as for instance, where property
belonging to an estate of which the heir has not taken possession is seized,
unless there is a necessary heir; for when there is a necessary heir, it has
been decided that usucaption cannot take place in favor of a party acting as
the heir. Likewise, in accordance with what we have stated in a former
Commentary, a debtor who has transferred property to his creditor by
mancipation or surrendered it in court on account of a trust, can take
possession of the property, and acquire it by usucaption, without being guilty
(202) Sometimes a person is liable for theft who did not himself commit
the offence; as is the case with one by whose aid and advice a theft has been
perpetrated. To this class belongs a person who knocks money out of your hand
in order that another may pick it up; or places himself in your way in order
that another may seize it; or puts your sheep or oxen to flight in order that
another may catch them, as in the example given by the ancient authorities,
where a person put a herd of cattle to flight by means of a red cloth. If,
however, this were done merely for the sake of amusement, and not for the
purpose of committing a theft, we will examine whether an equitable action
should be granted, as by the Lex Aquilia, which was enacted with
reference to damages, even negligence may be punished.
(203) The action of theft will lie in favor of the party whose interest
it is that the property shall be preserved, even though he may not be the
owner; and hence it will not lie in favor of the owner, unless he is interested
in the property not being destroyed.
(204) Therefore, it is settled that when an article which was pledged
has been stolen, the creditor can bring the action of theft, and to such an
extent is this true, that even if the owner himself, that is to say the debtor,
steals the property, the action of theft can still be brought by the
(205) Moreover, if a fuller receives clothes to be cleaned or pressed,
or a tailor receives them to be repaired, for a certain compensation, and loses
them by theft, he, and not the owner, will be entitled to bring the action;
because the owner is not interested in their not being lost; as he can recover
the value of the clothing in the action of leasing against the fuller, or
tailor, provided the said fuller or tailor has sufficient property to make good
the loss; for if he should not be solvent, then, for the reason that the owner
is unable to recover what belongs to him, he can himself bring the action of
theft, because, in this case, it is to his interest that the property should be
(206) What we have stated with reference to a fuller and a tailor, we
can likewise apply to one to whom we lend an article for use, for, as the
former, on account of the compensation they received, are liable for the safe
keeping of the property, the latter in consideration of the benefit he derives
from using the article, also becomes responsible for its safe keeping.
(207) But as he with whom property is deposited for safe keeping is only
responsible where he has committed fraud, in like manner, if the property
should be stolen from him, for the reason that he is not required to make
restitution by the action of deposit he is not, on that account, interested in
its being preserved; and hence he cannot bring the action of theft, but this
action will lie in favor of the owner.
(208) In conclusion, it should be noted, that it is a question whether a
child under the age of puberty becomes guilty of theft by removing property
belonging to another. It is held by the greater number of authorities that, as
a theft consists in the intention, a child under the age of puberty is not
liable for this offence, unless he is very near puberty, and for this reason
can understand that he is committing a crime.
(209) Anyone who seizes the property of another by violence, is also
liable for theft; for who handles the property of another more against the
consent of the owner than he who seizes it by violence? Therefore, it has been
very properly said that he is an impudent thief. The Prætor, however,
introduced a peculiar action to be brought in the case of a crime of this kind,
which is called the action for robbery with violence; and it may be brought
within a year for quadruple damages, and, after a year has elapsed, for simple
damages. This action will lie even if the person took only one article, even of
the smallest value, with violence.
(210) The action for unlawful damage was established by the Lex
Aquilia in the first chapter of which it is provided that if anyone
unlawfully kills a male or female slave, or any quadruped included in the
cattle of another, he shall be required to pay to the owner of the same a sum
equal to the highest value of the property during that year.
(211) To unlawfully kill is understood to mean where this happens with
malicious intent or through the negligence of another; loss which results
without the fault of the party who causes it not being punishable by any law,
and therefore, he who occasions damage under any circumstances, without
negligence or malicious intent will go unpunished.
(212) It is not only the body of the slave or of the animal which is
appraised in the action brought under this law, but if by the death of the
slave the owner sustained a greater loss than the value of the said slave
amounted to; as for instance, if my slave was appointed heir by someone, and
should be killed before he declared his acceptance of the estate by my order,
not only his own value is taken into consideration, but also that of the estate
which was lost. Likewise, if one of two twins, or one of a company of actors or
musicians should be killed, an appraisement is not only made of the one who was
killed, but also a computation of the depreciated value of those who remain.
The same rule of law applies where one of a pair of mules, or one of a team of
four chariot-horses is killed.
(213) Moreover, the person whose slave was killed has the choice either
of prosecuting for a capital crime the person who killed him, or of bringing an
action for damages against him under this law.
(214) The clause inserted in this law: "The greatest sum which the
property was worth during the year," has the following effect. If the slave who
was killed was crippled, or blind of an eye, but had been sound within a year,
the estimate shall be made not of his value when he was killed, but of his
greatest value during that year; the result of which is that sometimes the
party will recover a larger amount than that of the loss which he
(215) By the provisions of the second chapter an action is granted for
the amount of the claim against a joint stipulator who fraudulently released
the payment of money due to the stipulator.
(216) It is clear that in this section of the law an action was
introduced for the recovery of damages, although this provision was not
necessary, as the action of mandate would have been sufficient for that
purpose; except that under this law a suit for double damages can be brought
against the defendant, if he makes a contest.
(217) In the third chapter, provision is made for all other kinds of
damage. Therefore, if anyone wounds a slave, or a quadruped included under the
head of cattle; or even one which is not so included, as for instance, a dog;
or wounds or kills a wild beast, for example, a bear, or a lion; an action is
authorized by this chapter. With reference to other animals also, as well as to
all property which is destitute of life, damages can be recovered for injury by
this section of the law. An action is also provided therein, where anything has
been burned, dashed to pieces, or broken, although the single term "broken" is
sufficient in all these cases, for it is understood to mean spoiled in any way.
Therefore, where anything is burned, dashed to pieces, or broken, and also cut,
crushed, spilled, or injured to any extent, or destroyed or deteriorated, it is
comprehended in this term.
(218) In this chapter, however, the person who committed the damage is
responsible, not only for the value of the property within the past year, but
also for what it was worth within the thirty preceding days and the words
"highest value" are not added. Therefore, certain authorities hold that it
should be in the discretion of the judge to determine whether the estimate of
the property ought to be made with reference to its greatest value, or to any
inferior value which it may have had within the last thirty days; but it was
the opinion of Sabinus that the law should be construed just as if the word
"highest" had been inserted; and that the legislator was satisfied because he
had used the expression in the first chapter of the law.
(219) Moreover, it was decided that an action will only lie under this
law where the party caused the damage by means of his own body, and hence where
damage has resulted in some other way, equitable actions should be granted; for
instance, where anyone shuts up a slave or a head of cattle belonging to
another, and kills him or it by starvation; or where a beast of burden is
driven so hard that it perishes; and also where anyone persuades the slave of
another to climb a tree, or descend into a well, and, in doing so, he falls,
and is either killed or sustains some bodily injury. If, however, anyone pushes
a slave off of a bridge or bank into a stream, and he is drowned, the party who
pushed him may readily be understood to have caused the damage by means of his
(220) Injury is committed, for example, not only where anyone strikes
another with his fist, or with a stick or a whip, but where he reviles him in a
loud voice, or where well knowing, that nothing is due to himself, he seizes
and advertises for sale the property of another as his debtor; or where he
writes prose or poetry defaming another; or persistently follows the mother of
a family or a boy wearing the prætexta; and finally in many other
(221) We consider that injury may be suffered not only by ourselves, but
also in the persons of our children who are subject to our authority, as well
as by our wives, although they may not be in our hand. Hence if you commit an
outrage against my daughter, who is married to Titius, an action for injury can
(not) only be brought against you in her name, but also in that of mine, as
well as in that of Titius.
(222) It is understood that injury cannot be committed against a slave
individually, but his master may be injured through him; not, however, in the
same ways in which we are considered to suffer injury through our children or
wives, but where some peculiarly atrocious act is committed, which clearly
appears to have been perpetrated to insult the owner, for example, if anyone
scourges a slave belonging to another; and a rule has been established to meet
this case. If, however, anyone reviles a slave, or strikes him with his fist,
no rule has been prescribed in this instance, and permission to bring an action
would not readily be given.
(223) The penalties for injuries provided by the Law of the Twelve
Tables were as follows: "For a broken limb, retaliation; for a bone broken, or
crushed, three hundred asses, if the party was a freeman, but if he was a slave
a hundred and fifty; and for all other injuries, twenty-five asses." These
pecuniary penalties seemed to be sufficient compensation in those times of
(224) At present, however, we make use of another rule; for we are
permitted by the Prætor to estimate the damages ourselves, and the judge
may either condemn the defendant for the amount of which we have estimated it,
or for a smaller sum, as he may think proper. The Prætor usually fixes
the amount of damages to be paid for an atrocious injury, and when he has once
decided in what sum the defendant must give security to appear, he establishes
this sum as the limit, and although the judge can render a decree for a smaller
amount, still, as a rule, on account of his respect for the authority of the
Prætor, he does not venture to do so.
(225) Again, an injury is rendered atrocious either by the act, as when
anyone is wounded, beaten with rods, or severely whipped; or by the place, as
for instance, where the injury is committed either in the theatre, or in the
forum; or on account of the person, for example, where a magistrate is
insulted, or an injury is inflicted upon a senator by a person of inferior