IV. THE OPINIONS OF PAULUS.
THE OPINIONS OF JULIUS PAULUS.
ADDRESSED TO HIS SON.
CONCERNING AGREEMENTS AND CONTRACTS.
(1) We can enter into agreements with reference to matters which are lawful, and from them alone the obligation of a contract arises.
(2) In bona fide contracts one agreement is dissolved by another, and although it may give ground for an exception, it is, nevertheless, barred by a replication.
(3) The Aquilian stipulation is usually added to an informal agreement, but it is preferable to also add a penalty to it, for the reason that, if the agreement should be rescinded in any way, the penalty can be recovered under the stipulation.
(4) We cannot make a contract which is contrary to the laws or to good morals.
(5) We can make agreements and settlements with reference to matters in litigation.
(5a) An agreement entered into after a case has been decided should not be observed, unless it is introduced for the purpose of making a donation.
CONCERNING ATTORNEYS AND AGENTS.
(1) All infamous persons who are forbidden to bring actions at law cannot become attorneys, even with the consent of their adversaries.1
(2) Women are not forbidden to undertake the duties of attorneys where their own property is concerned.
(3) He can become an attorney or agent in his own behalf who sues for all parties.
(4) The action to enforce a judgment is not only granted for and against a principal, but also for and against an heir.
1 Under the ancient Hindu law, persons accused of murder and other serious crimes were forbidden to employ attorneys, and were required to conduct their own cases in person. Women, minors, and idiots were, however, excepted from this rule. (Gentoo Code, III, 2.) ED.
(1) The appointment of an agent can be made either during his presence, or his absence; and it can be conferred either by mere words, or by a letter, or by a messenger, or in the presence of a governor or a magistrate.1
(2) An agent is appointed either for the purpose of conducting a suit, or to transact any business, wholly or in part, or for the general administration of affairs.
1 In the appointment of an agent or attorney, the law of the Jews demanded that the consent of the former, either expressed, or implied by some act indicating acceptance, be obtained, in order to give it validity. (Mishnah III. Chap. 1.)
According to Mohammedan law, mere information of his appointment conferred upon an agent the right to act, and if he did so at once, his act was valid. Much more ceremony was necessary to establish proof of his dismissal, of which he had to be formally notified by one person of high character, or by two whose reputation was unknown to him.
Like the Roman procurator, one person could be appointed by another to conduct his case in court; the consent of the adversary was, however, indispensable, unless the constituent was ill, or distant at least three days journey, at the time. This acquiescence was not required in the case of a woman, who had a right to appoint an attorney to represent her in court under all circumstances. The constituent must be competent, and the attorney or agent possessed of sufficient intelligence to enable him to discharge his duties properly. The appointment of an infant or a slave, with the consent of his guardian or master, was legal, provided the infant had the mental capacity to understand what he was doing. They could bind their constituent, but no liability attached to them. (Hedaya III, XXIII, 2.)
It was the ancient English rule that the principal, when he appointed his attorney, must be present in court. The presence of the adverse party was not necessary. "Verum oportet eum esse præsent in curia qui alium ita loco suo ponit." "Nec oportet adversarium ob id præsentem esse." (Glanvil, Tractatus de Leg. et Consuet. Angliæ. XI, 1.) ED.
CONCERNING THE TRANSACTION OF BUSINESS.
(1) He who transacts the business of another voluntarily should act in good faith, and observe strict diligence in the affairs of the party in whose behalf he has intervened.
(2) If a guardian continues in the administration after the termination of the guardianship, he will be liable to the ward or his curator in the action of business transacted.
(3) If anyone attends to pecuniary transactions, he is required to pay interest for the entire period, and to assume the risk for the sums which he has lent, if the party should not be solvent at the time that issue was joined. And this rule shall also be observed in bona fide actions.
(4) A mother who intervenes in the affairs of her children will be liable to them and their guardians, in an action for business transacted.
(5) If a son under paternal control, or a slave, transacts the business of anyone, an action will be granted against the father of the son, or the master of the slave, to the extent of the peculium of either.
(6) If the father or the owner charges the son or the slave with the transaction of the business of another, he will be liable for the entire amount.
(7) If the father of an emancipated son administers the property which he has given him without any restriction, he will be liable to his son in the action for business transacted.
(8) Anyone who, not being a guardian or curator, administers the property of a ward or a minor in that capacity, will be liable as guardian or curator in the action for business transacted.
(1) He is guilty of calumny who knowingly and intentionally administers the property of another in a fraudulent manner.
(2) All calumniators are punished both in private and in public actions judicially, in accordance with the nature of the offence which they have committed.
A. CONCERNING FUGITIVE SLAVES.
(1) A slave purchased from a dealer in fugitive slaves cannot be manumitted within ten years against the consent of his former master.
(2) It is not permitted either to purchase or sell a fugitive slave while in flight, contrary to the Decree of the Senate, and the penalty imposed upon each of the culprits is five hundred thousand sesterces.
(3) Guards at the boundaries, and soldiers stationed in garrisons are authorized by law to retain fugitive slaves in custody.
(4) Municipal magistrates can properly send fugitive slaves who have been arrested to the seat of the governor of the province or the proconsul.
(5) Fugitive slaves can be demanded, and included among the property of the Public Treasury.
(6) Fugitive slaves who are not claimed by their owners are sold by the prefect of the night watch.
(7) The purchaser can recover from the Treasury the price of a fugitive slave who has been claimed within three years from the time of sale.
TITLE VI. B.
CONCERNING THE ACCUSATION OF DEFENDANTS.
(1) The accusation of a crime cannot be renewed where the culprit has been released by the party who accused him.
(2) If the son of the accuser desires to prosecute the defendant after he has been released for the crime of which he was accused by his father, he will not be permitted to do so.
(3) One party is not prevented from bringing an accusation for a crime, from the prosecution of which another desisted, or withdrew after having been defeated.
CONCERNING COMPLETE RESTITUTION.
(1) Complete restitution is a proceeding for the restoration of the property or the case to its former condition.
(2) The Prætor grants complete restitution in the following instances, namely: where an act is said to have been performed through intimidation or fraud; where there has been a change of civil status; where a lawful error has been committed; and in case of necessary absence, or incapacity of age.
(3) Complete restitution cannot be permitted more than once, for the reason that it should be granted after proper cause has been shown.
(4) When complete restitution is granted on account of intimidation, either a real or a personal action will lie. A real action will lie in order that the actual property in dispute may be recovered; a personal action can be brought for a quadruple penalty within a year, or for a simple penalty after the expiration of that time.
(5) If anyone should either sell or promise any property in order to liberate himself from the violence of robbers, enemies, or the mob. this has no reference to intimidation, for he pays the price for being released from fear.
(6) Where a slave who has been emancipated through intimidation acquires or stipulates for anything, he acquires it for the person who suffered the violence.
(7) Superior force is an attack which cannot be resisted.
(8) Anyone who shuts another up in a house in order to compel him to sell or promise his property, is considered to have extorted the sale or the promise.1
(9) Anyone who has overcome another with a weapon, in order to compel him to deliver or sell him something, is considered to have employed violence. Anyone who throws another into prison for the purpose of extorting something from him, causes an act which has been performed on this account to be of no effect.
1 It is difficult to account for the antagonistic principles set forth in this and the Fifth Section. Both should certainly be included under the head of duress, and the former directly encourages the worst form of extortion. ED.
(1) Fraud takes place when one thing is done, and another is pretended.
(2) Where one person employs fraud, and another intimidation, for the purpose of having property transferred to a third party, both will be liable in an action for fraud and intimidation.
CONCERNING MINORS UNDER THE AGE OF TWENTY-FIVE YEARS.
(1) If a minor under the age of twenty-five years commits an offence which calls for public punishment, he cannot, on this account, obtain complete restitution.
(2) Anyone who directs a minor to transact his business, cannot personally obtain complete restitution, but if the minor voluntarily interfered in his business he should be restored to prevent the other party from suffering loss.
(3) If a person who is of age ratifies any transaction performed by a minor either by his act or by his silence, he will in vain demand complete restitution for this reason.
(4) If one minor is the heir of another, he can obtain complete restitution in transactions in which he became surety, guarantor, promissor, or mandator.
(6) Where anyone, knowingly and designedly, bound himself for a minor, and did so after deliberation, relief shall be granted to the minor, but none shall be granted to the other party.
(7) A minor who obtains complete restitution as against a purchaser, can recover the land sold if he returns the purchase money; for it has been established that the crops shall remain in the possession of the purchaser as a set-off for interest
(8) A minor can obtain complete restitution against the sale of his pledges and hypothecations, but not against those which were hypothecated by his father, if the case was such that it was necessary for them to be sold by the creditor.
CONCERNING ONE WHO LOSES HIS CASE BY CLAIMING MORE THAN HE IS ENTITLED TO.
(1) We lose our case by claiming more than we are entitled to either with reference to place, amount, time, or quality; with reference to place, by demanding another; with reference to amount, by claiming a larger sum; with reference to time, by bringing the action before the debt is due; with reference to quality, by demanding a different kind of property than is due, even though it be of inferior value.
CONCERNING THE GIVING OF SECURITY.
(1) Whenever an estate is claimed, security is required by law, and if it is not given, the estate is transferred to the claimant who does give it. If the claimant is unwilling to furnish security, the estate remains in the hand of the possessor; for under similar circumstances the position of the possessor is preferable.
(2) An usufructuary should also give security with reference to the enjoyment of the usufruct, that is that he will make use of it as the head of a household himself ought to do.
CONCERNING ALL CRIMINAL CASES.
(1) Persons who make use of a forged transfer are punished with exile by the Lex Cornelia de Falsis.
(2) Anyone who corrupts a female slave belonging to some one else is compelled to give another in her stead.
(3) Anyone who ignorantly makes a false allegation is not liable to the penalty of perjury.
(4) Neither a slave nor a freedman can be interrogated in behalf of his master or patron.
(5) Pregnant women cannot be tortured, or condemned to death, until after they have been delivered.
(6) Anyone who, by false allegations, has obtained a rescript from the Emperor is forbidden to use it.
(7) Anyone who makes a confession with reference to himself cannot be tortured against another, lest he who despaired of his own life may render that of another uncertain.
(1) When anyone furnishes security to produce another in court and the party for whom he becomes surety dies, he will be released from liability under the bond.
(2) A son under paternal control can manumit a slave by the order of his father, but not by that of his mother.
(3) Anyone who erases, removes, or changes a public record, or interferes with anything else intended to give notice, shall be judicially punished.1
(4) If property which was sold is neither transferred nor delivered, the vendor can be compelled to transfer or deliver it.
(5) He depreciates the value of a slave who persuades him to take to flight or to commit theft, or who corrupts his morals or his body.
(6) Anyone who debauches the female slave of another, who is an immature virgin, is liable to the penalty fixed by the Lex Aquilia.
1 That is to say the penalty shall be left to the discretion of the magistrate, without assignment of the case to judices to ascertain the facts. ED.
TITLE XIII A.
WHERE AN ESTATE, OR ANY OTHER PROPERTY IS CLAIMED.
(1) In the claim for an estate all the property which the deceased left at the time of his death is included, or whatever was acquired by means of it after his death and before the estate was entered on.
(2) The possessor of an estate is compelled to surrender the price of any property which he fraudulently alienated, together with the interest on the same.
(3) The estimated value of the property belonging to an estate which has been alienated, depends upon the judgment of the claimant.
(4) The claim for an estate which was not contested by the deceased is not transmitted to his heir.
(8) The possessor of an estate who neglected to gather or take possession of the crops, is required to pay double their value.
(9) In making restitution, the profits of property to be paid to the claimant are those which every diligent and honest head of a household would have been able to obtain.
1 Original manuscript illegible.
CONCERNING THE PUBLIC HIGHWAY.
(1) Anyone who plows up a public highway is alone compelled to repair it.
WHERE A QUADRUPED COMMITS DAMAGE.
(1) Where a quadruped causes any loss or commits any damage, or consumes anything; an action is granted against its owner to compel him to either pay the estimated amount of the damage, or surrender the quadruped; which was also provided by the Lex Pesulania concerning dogs.
(2) The Prætor forbids a wild beast to be tied up in any place where people pass, and, therefore, if any injury should be caused either by the animal itself, or on account of it, by one person to another, an extraordinary action will be granted against the owner or custodian for an amount of damages in proportion to the injury committed. This is especially the rule where a man loses his life, or is wounded on this account.
(3) No action, however, shall be granted against either the owner or keeper of an animal in favor of him who having irritated a wild beast, or any other quadruped, provoked it to attack and injure him.
CONCERNING THE ESTABLISHMENT OF BOUNDARIES.
(1) Anyone who forcibly destroys or removes landmarks shall be judicially punished.
(1) Anyone who possesses a right of way, passage, or driving, or the right to conduct water, and does not make use of it for the term of two years is considered to have lost it; for rights which have been lost by non-user cannot be acquired by usucaption.
(2) The servitudes of drawing or conducting water, if not made use of for two years, is extinguished, and if unlawfully seized, can be recovered within two years.
THE PARTITION OF ESTATES.
(1) An arbiter for the partition of an estate cannot be appointed more than once; and, therefore, an arbiter having been demanded shall adjudge the property which was not included in the first award by the division of what is now owned in common.
(2) In making the division, the judge should take cognizance of the entire property belonging to the estate, so that he may decide with reference to all of it at the same time.
(3) In rendering a decision in a case of partition, it is established that whatever each one receives from the entire estate must either be surrendered by him, or its value paid, in order that it may be divided among the co-heirs.
(4) In the partition of an estate the judge must be appointed, not with reference to certain property forming part of the estate, but with reference to all of it, and not to apportion the property among a few co-heirs, but among all of them; otherwise his appointment is void.
(5) All property belonging to the partners is divided among them separately in an action in partition brought for that purpose.
IN WHAT WAY ACTIONS MAY BE DOUBLED BY THE DENIAL OF THE DEFENDANT.
(1) Certain actions when contested by the defendant are doubled; as, for instance, those of judgment, of money expended for a principal, of a legacy left by condemnation, and of unlawful damage under the Lex Aquilia; as well as the one brought to determine the dimensions of a field when the purchaser has been deceived by the vendor.
(2) Cases of this kind which are doubled by the denial of the defendant cannot be settled by agreement.
CONCERNING SURETIES AND SPONSORS.
(1) The obligation is divided between sureties under the Edict of the Prætor, if they are solvent; although each one is individually liable for the entire amount of the debt.
CONCERNING SEPULCHRES AND MOURNING.
(1) A body, after it has been permanently buried and solemn sacrifices have been made, can be transferred by night to another place on account of the overflow of a river, or the fear of impending ruin.
(2) It is not lawful for a corpse to be brought into a city, lest the sacred places of the latter may be polluted; and anyone who violates this law shall be arbitrarily punished.
(3) A body cannot be committed to burial within the walls of a city, or be burned therein.
(4) Anyone who strips a body permanently buried, or which has been deposited temporarily in some place, and exposes it to the rays of the sun, commits a crime, and therefore, if he is of superior station he is usually sentenced to deportation to an island, and if he is of inferior rank, he is condemned to the mines.
(5) Anyone who violates a tomb, or removes anything from it, shall either be sentenced to the mines, or deported to an island, according to his rank.
(6) Anyone who breaks or opens a sepulchre belonging to another, and places therein the body of a member of his own family, or that of a stranger, is considered to have violated the sepulchre.
(7) When land is sold, consecrated ground does not pass to the purchaser, nor does he acquire the right to inter bodies therein.
(8) Anyone who erases an inscription on a monument, or overturns a statue, or takes anything away which belongs to it, or removes a stone or a column therefrom, is considered to have violated the sepulchre.
(9) A body cannot be placed in the same sarcophagus or vault where another has already been deposited; and he who does so can be prosecuted as guilty of violation of a sepulchre.
(10) He who buries the body of a stranger and spends any of his own money for funeral expenses, can recover it from the heir, the father, or the master of the deceased.
(11) A husband can recover out of the dowry of his wife whatever he has expended upon her funeral.
(12) The right of residence near, or over a monument, does not exist, for a crime is committed even by the proximity of human habitation; and anyone who violates this law shall be punished either by being condemned to the public works, or by exile, according to his rank.
(13) Parents and children over ten years of age should be mourned for the term of a year; minors up to the age of three years, should be mourned for one month for each year of their age at the time of their death; a husband should be mourned for ten months, and cognates, under the sixth degree, for eight months. Whoever violates this law is included in the class of persons who are infamous.
(14) Anyone who is mourning should abstain from marriage, as well as from the use of ornaments, and purple and white garments.
(15) Anything which is expended for the funeral occupies the first place among the debts of the estate.