700 ROMAN LAW [JUS GENTIUM, ETC. the nomen transscripticium. 1 Notwithstanding the prolific litera- ture of which it has been the subject, it must be admitted that in many points our knowledge of it is incomplete and uncertain. The prevalent opinion, formed before the discovery of the Verona MS. had made known Gaius's description of it, and almost univer- sally adhered to ever since, is that such contracts were created by entries in the account -books which the censors insisted that all citizens of any means should keep with scrupulous regularity. They are often alluded to by the lay mters ; but the text princi- pally relied on is what remains of Cicero's speech for the player Koscius. From the tenor of the argument in that case, and inci- dental remarks elsewhere, the conclusion has been formed that a citizen who made an entry in his codex whether of the nature of a cash-book or a ledger is much disputed to the debit of another, thereby made the latter his debtor for a sum recoverable by an actio certae creditae pecuniae. Gaius in his description of the con- tract does not mention the codices ; but his account is not incon- sistent with the notion that the entries (nomina} of which he speaks were made in them. He says that those entries were of two sorts, nomina arcaria and nomina transscripticia. The former were entries of cash advances ; and of them he observes that they did not create obligation, but only served as evidence of one already created by payment to and receipt of the money by the borrower. Of the latter he says that there were two varieties, the entry tran- scribed from thing to person and that transcribed from one person to another, and that both of them were not probative merely but creative of obligation. The first was effected by a creditor (A) entering to the debit of his debtor (B) the liquidated amount of what the latter was already owing as the price of something pur- chased, the rent of a house leased, the value of work done, or the like. The second was effected by A transcribing B's debt to the debit of a third party (C), hitherto a debtor of B's, and who con- sented to the transaction, A at the same time crediting B with the sum thus booked against C, and B in his books both crediting C with it (acceptilatio) and debiting A (expensilatio). All this at first sight seems just a series of bookkeeping opera- tions. But it was much more than that for the Roman citizens who first had recourse to it. There was a time when sale, and lease, and the like, so long as they stood on their own merits, created no obligation enforcible at law, however much it might be binding as a duty to Fides or (as moderns would say) in the forum of conscience ; to found an action it required to be clothed in some form approved by the jus civile. The nexum may have been one of those forms, the vendee or tenant being fictitiously dealt with as borrower of the price or rent due under his purchase or lease ; the stipulation was another, the obligation to pay the price or rent being made legally binding by its embodiment in formal question and answer. But stipulation was competent only between persons who were face to face, whereas expensilation Avas competent also as between persons at a distance from each other. This of itself gave expensilation which, originally at least, was as much a nego- tium juris civilis as the sponsio an advantage in some cases over stipulation. But it had also a further advantage, which was not affected by the subsequent recognition of the real and consensual contracts as productive of legal obligation on their own merits : it paved the way for subsequent transcription from one person to another. This last must have been of infinite convenience in com- merce, not only by enabling traders to dispense with a reserve of coin, but by obviating the risks attending the transit of money over long distances. It was this that led, as Theophilus says was the case, to the conversion even of stipulatory obligations into book-debts ; it was not that thereby the creditor obtained a tighter hold over his debtor, but that an obligation was obtained from him which in a sense was negotiable and therefore more valuable. >n- The evolution of the four purely consensual contracts sale, loca- usual tion, partnership, and mandate supplies matter for one of the ntracts. most interesting chapters in the whole history of the law. But, as it is impossible in such an article as this to attempt to mark the successive stages in the progress of all of them, we shall confine ourselves to sale. The others did not and could not follow identi- cally the same course : location ran most nearly parallel with sale ; but partnership and mandate, from their nature, not only started at a different point from the other two, but reached the same goal with them that of becoming productive of obligation simply on the strength of consent interchanged by the parties by paths that were sometimes far apart. Nevertheless a sketch of the history of the origin of the contract of sale may be sufficie-nt to indicate generally some of the milestones that were successively passed by all four. 2 1 Literature : Savigny, " Ueber den Literalcontract der Romer" (originally 1816, with additions in 1849), in his Verm. Schriften, vol. i. p. 205 sq. ; Keller, in Sell's Jahrb. f. hist. u. dogm. Bearbeit. de rim.. Rechts, vol. i. (1841), p. 93 sq. ; Gneist, Die formellen Vertrdge d. rom. Rechts, Berlin, 1845, p. 321 sq. ; Heiin- bach, Die Lehre mm Creditum, Leipsio, 1849, p. 309 sq. ; Pageristecher, De literar. obligatiane, &c., Heidelberg, 1851 ; Danz, Gesch. d. rom. Rechts, vol. ii. p. 42 sq. (where there is a resume of the principal theories) ; Gide, in the Rev. de Legiflat., voL iii. (1878), p. 121 sq. ; Buonamici, in the Archivio Giuridico, vol. xvi. (1876), p. 3 sq. ; Gide, Etudes sur la Novation, Paris, 1879, p. 185 sq. Baron, Die Condictionen, Berlin, 1881. 11, 12. 2 The literature on the history of the contract of sale is profuse, but mostly Going back as far as history carries us we meet with it under the Con- names oiemptio and vcnditio, but meaning no more than barter ; for tracts c emere originally signified simply "to take" or "acquire." Sheep sale and cattle (pecus, hence pccunia) may for a time have been a very usual article of exchange on one side, and then came raw metal weighed in the scales. But it was still exchange, instant delivery of goods on one side against simultaneous delivery of so many pounds weight of copper on the other. With the reforms of Servius Tullius came the distinction between res mancipi and res nee mancipi, and with it a regulated mancipation for sale and conveyance of the former. It was still barter ; but along with it arose an obligation on the part of the transferrer of the res mancipi to warrant the transferee against eviction, a warranty that was im'plied in the mancipation. Whether this rule obtained from the first or was the growth of custom it is impossible to say ; but it is in the highest degree probable that it was the XII. Tables which fixed that the measure of the transferrer's liability to the transferee in the event of eviction should be double the amount of the price. Equally impossible is it to say when the practice arose of embody- ing declarations, assurances, and so forth in the mancipation (leges mancipii), which were held binding on the strength of the negotiant juris civilis in which they were clothed. They received statutory sanction in the Tables, in the words already referred to more than once "cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto," substantially "whatever shall by word of mouth be declared by the parties in the course of a transaction per acs el libram in definition of its terms shall be law as between them." The substitution by the decemvirs of coined money, that was to be counted for rough metal that had been weighed, converted the contribution on one side into price (pretium], as distinguished from article of purchase (mcrx) on the other ; and sale thus became distinct from barter. In contemplation of the separation of the mancipa- tion and the price-paying, and the degeneration of the former into a merely imaginary sale, they enacted that, mancipation notwith- standing, the property of what was sold should not pass to the purchaser until the price had been paid or security by sureties (vades) given for it to the vendor ; and it was probably by tho interpretation of the pontiffs that this was added to the rule, that until the price was paid no liability for eviction should attach to the transferrer (or auctor). The reason of the provision in the XII. Tables was that a vendor who had mancipated or delivered a thing sold by him before receiving the price had no action to enforce payment of the latter ; and in such circumstances it was thought but right to give him the opportunity of getting back the thing itself by a real action. It might be, however, that the price had Deen paid, and yet the vendor refused to mancipate. It was long, apparently, before the purchaser could in such a case compel him to do so. With the introduction of the legis actio per condic- tionem he (the purchaser) had undoubtedly the power to recover the money on the ground of the vendor's unjustifiable enrichment, that the latter had got it for a consideration which had failed (causa data, causa non secuta] ; and it is possible that before that he had a similar remedy per judicis postulationem. Down to this point, therefore, say the beginning of the 6th century, there were several obligations consequent on sale of a res mancijn ; but not one of them arose directly out of the sale itself, or could be enforced simply on the ground that it had taken place. The vendor was bound to support the purchaser in any action by a third party disputing his right, and to repay him the price two- fold in the event of that third party's success ; and he was bound, moreover, to make good to him any loss he had sustained through a deficiency of acreage he had guaranteed, non-existence of servi- tudes he had declared the lands enjoyed, existence of others from which he had stated they were free, 3 incapability of a slave for labour for which he was vouched fit, and so on. But these obliga- tions were binding, not in virtue of the sale per se, but of the transaction per aes et libram superinduced upon it ; and, if the vendor had at any time to return the price on failure to mancipate what he had sold, it was not because he had committed a breach of contract, but because he had unjustly enriched himself at tho purchaser's expense. In sales of res nee mancipi, just as in those of res mancipi, a vendor who had been incautious enough to deliver his wares before he had been paid, or had got stipulatory security for the price, or ha I converted it into a book-debt, might recover them by a real action if payment was unduly delayed ; while the purchaser who had paid in advance but failed to get delivery might also get back his money from the vendor on the plea of unwarrantable enrichment. But, as scattered in periodicals and much of it very fragmentary. It may be enough to refer to Bechmann, Gesch. d. Kaufs im rom. Recht, Erlangen, 1876; three article (1883), Anfan(,_ Rom. Abtheil., p. 260 sq. 3 Cicero saya (De Of., iii. 16, 65) that, though 1>y the XII. Tables it wnn enough if a vendor per aes et libram made good his positive assurances (uti lingua nuncupassit, ita jus esto), the jurists held him responsible for reticence about burdens or defects he ought to have revealed, and liable for a poem* dupli exactly as if he had guaranteed their non-existence.
