JUS GENTIUM, ETC.] ROMAN LAW 699 III. SUBSTANTIVE CHANGES IN THE LAW DURING THE PERIOD. ib- The Publician Edict. There were necessarily many changes
- ian during the period in the law of property and of minor real rights,
ict. several of them of no mean importance. But the greatest of all was that effected by the Publician edict, 1 indirectly recognizing the validity (1) of what Theophilus calls dominium bonitarium as an actual though inferior ownership of res mancipi, and (2) of what got the name of bonae fidci possessio as a fictitious ownership of either res mancipi or res nee 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. omini- One of the defects was this : if a man had taken a transfer of ni boni- a res mancipi from its rightful owner, but simply by tradition iriuin. instead of by mancipation or cession in court, he did not acquire domiimim ex jure Quiritium, and the transferrer remained undi- vested. 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 pratorian remedy, and probably older than the Publician ; to the transferred vindication on the strength of his unextin- guished 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 1 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 trans- feree, 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 quiri- tary 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 posses- sion within the period of usucapion, he (the praetor) would allow him a vindication embodying a fiction of completed usucapion (infra, p. 708), with which he might proceed either against the transferrer 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 pratorian origin, was in many respects dealt with as an actio juris civilis and just a variety of the rei vindicatio had 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, how- ever, the transferee was not quiritary owner : the thing in question was only in bonis, "of his belongings," and the legal title, though a very empty one nudum jus Quiritium remained in the trans- ferrer ; it was only with the completion of the usucapion that it became the transferee's pleno jure. The inevitable result of the re- cognition 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 vcrba 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. Bonae The second case that was met by the Publician edict whether fidei pos- as originally published or by an amendment of it cannot be deter- sessio. mined was that of the bonafide 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 Quiri- tium? As against the true owner, whose property had been dis- 1 See Ribereau, Theorie de Tin bonis habere on de fa proprieti pretorienne, Paris, 1867 : Voigt, Jus natitrale, &c., vol. iv., App. xxi., p. 470 sq. ; Huschke, Das Recht der Publicianischen Klage, Stuttgart, 1874 ; Sehulin (rev. Huschke), in the Krit. Vierteljahrschrift, vol. xviii. (1876), p. 526 sq. ; Lenel, Beitrage zur Kmul~ d. praetorischen Edicts: I. Das Ptiblic. Efl., Stuttgart, 1878. 2 This case is the only one alluded to by Justinian (Inst., iv. 6, 4). He had abolished the distinction between quiritarian and bonitarian property, and so it was unnecessary for him to mention the other. )osed of by a stranger behind his back, there would have been no quity in giving him an action ; but as against all the world except he true owner his " better right " was recognized by the praetor, vho accorded to him also a vindication proceeding on a fiction of
- ompleted usucapion, for usucapion cured the defect of his title,
ust as it did that of the bonitarian owner. In this way the praetors ntroduced 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 iroperty (as distinguished from bona fide possession) consequently i'ery much increased. Development of the Law of Contract* It is impossible within Changes the limits of an article such as this to indicate a tithe of the amend- in law ments that were effected on the law of obligations during the period of con- whose distinguishing features were the rise of a jus gentium and tract, 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 enrich- ment at another person's cost. 4 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 enact- ments for limiting a surety's liability ; while that of agency, which was sparingly admitted in Rome, had a valuable contribution from the preetorian edict in the recognition of a man's liability, more or less qualified, for the contractual debts of iisfiliifamilias 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 command of a ship belonging to him. The development of the law in the matter of obligations generally was greatly facilitated by the prtetorian 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 action- Stipu- ability under the Silian and Calpurnian laws have already been lation. explained (pp. 694, 684). 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 prac- tice to introduce words the single word recte was enough exclud- ing liability in case of malpractice (clausula doli); and finally even that became unnecessary when the prsetors had introduced the general exceptio doli, pleadable as an equitable defence to any personal action. And it was essentially productive only of uni- lateral 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 inde- pendent. Originally the only words that could be employed were spondcs? on the one side, spondeo on the other ; and in this form the contract rasjuris civilis and competent only to citizens (and non- citizens enjoying commercium ?). In time the words promittis ? promitto, came to be used alternatively. They seem, eventually at least, to have been 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, fades 1 faciam. Originally competent only for the creation of an obligation to pay a definite sum of money, and after- wards one for delivery of a specific thing other than money, the contract came in time, by the simplification of the words of inter- rogatory and response the substitution of the condictions 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) stipula- tions, of which a variety of illustrations are given infra, p. 709. 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 ipsojure to do or to abstain from doing, and that because of the simplicity of the remedy an action on his stipulation that would lie against him in the event of his failure. A second form of contract that came into use to a considerable Literal extent in the latter half of the republic is what is commonly called contrac the literal contract, or, as Gaius phrases it with greater accuracy, 3 See Bekker, Aktlonen, vol. i. chaps. 5-8, and App. D, E, F, and vol. ii. chaps. 15, 16 ; Voigt, Jus na.tv.rale, &c., vol. iii. 106-124, and vol. iv., App.
