as a fictitious ownership of either res mancipi or res nec mancipi,
valid against all the world except the true dominus. The accounts
we possess of this edict are somewhat inconsistent and even
contradictory; the explanation may be that it went through a process
of amendment and expansion at the hands of successive praetors,
and that eventually it may have had more than one section, without
our always being able to say to which of them the criticism of a
particular commentator is directed. But there is no doubt of its
general tendency—of the defects it was meant to correct and of the
way in which the correction was accomplished.
One of the defects was this: if a man had taken a transfer of a res mancipi from its rightful owner, but simply by tradition Dominium bonitarium. instead of by emancipation or cession in court, he did not acquire dominium ex jure Quiritium, and the transferrer remained undivested. The result was that the latter was in law entitled to raise a rei vindicatio and oust the transferee whose money he might have in his pocket, while if a third party had obtained possession of the thing, but in such a way as not to be amenable to an interdict, the transferee could have no effectual vindication against him, as he was not in a position to prove dominium ex jure Quiritium. The first difficulty was overcome by the exceptio rei venditae et traditae, also a praetorian remedy, and probably older than the Publician; to the transferrer's vindication on the strength of his unextinguished quiritary right the transferee pleaded sale and delivery as an effectual praetorian defence. But, when a third party was in possession, and the transferee by simple delivery had to take the initiative, the position was more complicated. Such third party might be in perfect good faith; he might even have acquired from the original transferrer and fortified his acquisition with a formal conveyance. But that was no sufficient reason in equity why he should be allowed to defeat the prior right of the original transferee, who, if he had possessed for the requisite period of usucapion before the third party came upon the scene would have cured the defect of the informal delivery and acquired an unassailable quiritary right. So the praetor announced in his edict that, if a man came to him and represented that he had bought a res mancipi from its owner, and had had it delivered to him, but had lost possession within the period of usucapion, he (the praetor) would allow him a vindication embodying a fiction of completed usucapion (infra), with which he might proceed either against the transferred or any third party withholding the thing in question.
The publication of such an edict and the formula of the action based upon it (which, though of praetorian origin, was in many respects dealt with as just a variety of the rei vindicatio) had almost the same effect as if the legislature had directly enacted that in future delivery of a res mancipi in pursuance of a sale or other good cause would confer a right of ownership in it even before usucapion had been completed. Till completed, however, the transferee was not quiritary owner: the thing in question was only in bonis, “of his belongings,” and the legal title, though an empty one—nudum jus Quiritium—remained in the transferrer; it was only with the completion of the usucapion that it became the transferee's pleno jure. The inevitable result of the recognition of this tenure in bonis was that mancipation came to be regarded in many cases as an unnecessary formality; and the marvel is that it continued to hold its ground at all. The explanation may be that it afforded a substratum for and gave force of law to the verba nuncupata that accompanied the negotium per aes et libram; and, although many of these might quite well be thrown into the form of stipulations, yet there were others that it may have been thought safer to leave to take effect under the provisions of the earlier law.
The second case that was met by the Publician Edict—whether as originally published or by an amendment of it cannot be Bonae fidei possessio. determined—was that of the bona fide transferee of a thing by purchase or other sufficient title who, having lost possession of it before usucapion, found to his cost that the transferrer had not been its owner, that no ownership therefore had been transmitted to him (the transferee), and that consequently he was not in a position to raise a vindication with its averment of dominium ex jure Quiritium.[1] As against the true owner, whose property had been disposed of by a stranger behind his back, there would be no equity in such an action, and the owner was given an effectual exceptio justi dominii; but as against all the world except the true owner (and perhaps a person who also was in causa usucapiendi), his “better right” was recognized by the praetor, who accorded to him a vindication proceeding on a fiction of completed usucapion, for usucapion would cure the defect of his title, just as it did that of the bonitarian owner. In this way the praetors introduced that bonae fidei possessio which was worked out with much skill by the jurists of the early Empire, and which assumed very large proportions in the Justinianian law when the term of prescription had been greatly extended, and the difficulty of proving property (as distinguished from bona fide possession) consequently very much increased. The Publician action was also in time made applicable in modified form to servitude's and other real rights as much as to property.
Development of the Law of Contract.[2]—It is impossible within the limits of an article such as this to indicate a tithe of the amendments Changes in law of contract. that were effected on the law of obligations during the period whose distinguishing features were the rise of a jus gentium and the construction of the praetor's edict. In every branch of it there was an advance not by steps but by strides—in that of obligations arising from contract, of those arising from delict, and of those arising from facts and circumstances, such as unjustifiable enrichment at another person's cost.[3] The law of suretyship, in its three forms of sponsio, fidepromissio, and fidejussio, received considerable attention, and formed the subject of a series of legislative enactments for limiting a surety's liability; while that of agency, which was sparingly admitted in Rome, had a valuable contribution from the praetorian edict in the recognition of a man's liability, more or less qualified, for the contractual debts of his filiifamilias and slaves, as also, and without qualification, for the debts properly contracted of persons, whether domestically subject to him or not, who were managing a business on his account, or whom he had placed in charge of a ship belonging to him. The development of the law in the matter of obligations generally was greatly facilitated by the praetorian simplification of procedure and the introduction of new forms of actions—the instruction to a judge, “Whatever in respect thereof the defendant ought to give to or do for the plaintiff, in that condemn him,” preceded by a statement of the cause of action, giving wide scope for the recognition of new sources of liability.
The origin of the verbal contract of stipulation and its actionability under the Silian and Calpurnian laws have already been Stipulation. explained. It was theoretically a formal contract, i.e. creative of obligation on the strength of the formal question and answer interchanged by the parties, even though no substantial ground of debt might underlie it; but in time it became the practice to introduce words—the single word recte was enough—excluding liability in case of malpractice (clausula doli); and finally even that became unnecessary when the praetors had introduced the general exceptio doli, pleadable as an' equitable defence to any personal action. And it was essentially productive only of unilateral obligation, i.e. the respondent in the interrogatory alone incurred liability; if mutual obligations were intended it was necessary that each should promise for his own part, with the result that two contracts were executed which were perfectly independent. Originally the only words that could be employed were spondes? on the one side, spondeo on the other; and in this form the contract was juris civilis and competent only to citizens (and non-citizens enjoying commercium?). In time the words promittis? promitto, came to be used alternatively. They were, eventually at least, competent to peregrins as well as to citizens, although that may not have been until the stipulation had become of daily use amongst the former in the still simpler phraseology dabis? dabo, facies? faciam. Originally competent only for the creation of an obligation to pay a definite sum of money, and afterwards one for delivery of a specific thing other than money, the contract came in time, by the simplification of the words of interrogatory and response and especially by the substitution of the conditions of the formular system for the legis actiones of the Silian and Calpurnian laws, and the introduction of the actio ex stipulatu to meet cases of indefinite promise—to be adaptable to any sort of unilateral engagement, whether initiated by it or only confirmed. It was of immense service too outside the ordinary range of contract in what were called necessary (in contradistinction to voluntary) stipulations, of which a variety of illustrations are given infra, p. 569. In all directions advantage was taken of it to bind a man by formal contract either to do or to refrain from doing what in many cases he might already be bound ipso jure to do or to abstain from doing, and that because of the simplicity of the remedy—an action on
- ↑ This case is the only one alluded to by Justinian (Inst. iv. 6, 4). He had abolished the distinction between quiritarian and bonitarian property, which had, he says, become in practice a mockery (Cod. vii. 25), and so it was unnecessary for him to mention the other. Lenel, in the second edition of his Edictum Perpetuum, i. p. 164, gives strong reasons for holding that there was from the beginning only one edict and one formula which was applied alike to bonitary ownership and bona fide possession. Cf. Appleton, l.c. i. p. 49. For the different theories, see Girard, Textes, 3rd ed. pp. 137-38. What was the nature of the so-called actio Publiciana recissoria in which completed usucapion was feigned not to have taken place, seems doubtful. Inst. iv. 6, §§ 3, 5. See Cuq, Inst. Jurid. vol. ii. 2nd ed. p. 722 n.; Lenel, Edict. Perpet. pp. 117-19.
- ↑ See Bekker, Aktionen, i. c. 5-8, and App. D, E, F and vol. ii. c. 15, 16; Voigt, Jus naturale, &c., vol. iii. §§ 106-24, and vol. iv. App. xix., xxi.
- ↑ Such obligations—usually imposing the duty of restitution of unjustifiable gains—filled a considerable space in the practice and doctrine of the period, and early gave rise to a variety of brocards, e.g. “Nemo cum alterius damno lucrari debet,” “ Nemo damnum sentire debet per lucrum alterius,” &c.
Lenel, Palingenesia, ii. pp. 511 seq.; Girard, Manuel, 4th ed. pp. 348 seq.; Lenel, Edict. Perpet. 2nd ed. 164, and references in n. 10 there.
