JUS GENTIUM, ETC.] ROMAN LAW 701 mancipation was unnecessary for carrying the property (and, as some think, incompetent), some other machinery had to be resorted to than that of the copper and the scales for imposing upon the vendor an obligation of warranty against eviction, defects, and so forth. It may be that, until trade began to assume considerable proportions, and when a transaction was between citizens, a pur- chaser was content to rely partly on the honesty of his vendor, partly on the latter's knowledge that he ran the risk of an action for theft if what he sold belonged to another, 1 and partly on the maxim common in all ages and climes, caveat emptor. When it was one between a citizen and a peregrin, a different set of rules may have come into play ; for between them disputes were settled by recuperators whose decisions were arrived at very much on con- siderations of natural equity. It was the popularization of the stipulation that facilitated a further advance, rendered all the more necessary by the expansion of intercourse with foreigners and the cessation of recuperation. !ifir- We read of a satisdatio secundum mancipium, a stipulatio habere itory licere, and a stipulatio duplae. The nature of the first is obscure ; >ula- it seems to have been connected with mancipatory sales, and prob- is. ably to have been the guarantee of a sponsor for the liabilities im- posed upon the vendor by the transaction per aes et Hbram and the verba nuncupata that were covered by it. The stipulation habere licere occurs in Varro, in a collection of styles of sales of sheep, cattle, &c., some of which he says were abridgments of those of M. Manilius, who was consul in the year 605. It was the guarantee of the vendor of a res nee maneipi, or even of a res inancipi sold without mancipation, that the purchaser should be maintained in possession of what he had bought ; it entitled him to reparation on eviction, measured not by any fixed standard but according to the loss he had sustained. It cannot have been introduced, there- fore, until after the Lex Aebutia and the formulation by the prsetor of the actio ex stipulatu. The idea of the stipulatio duplae may have been borrowed from the duplum incurred by a vendor on the eviction of a purchaser acquiring a thing by mancipation ; for one of its earliest manifestations was in the edict of the curule pediles, who insisted on it from persons selling slaves, probably because the dealers were for the most part foreigners, and therefore unable to complete their sales per aes et Hbram. Judging from Varro, it was a form of stipulation against eviction that in his time was used only in sales of slaves, although he adds that by agreement of parties it might be limited to a simplum. We learn from the same writer what is also indicated in various passages of Plautus that the vendor at the same time and in the body of the same stipulation guaranteed that the sheep or cattle lie was selling were healthy and of a healthy stock and free from faults, and that the latter had not done any mischief for which their owner could be held liable in a noxal action ; and similarly that a slave sold was healthy and not chargeable for any theft or other offence for which the purchaser might have to answer. If any of these guarantees turned out fallacious the purchaser had an actio ex stipulatu against the vendor : ' ' Whereas the plaintiff got from the defendant a stipulation that certain sheep he bought from him were healthy, &c. [repeating the words of guarantee], and that he, the plaintiff, should be free to hold them (habere licere), whatever it shall appear that the defendant ought in respect thereof to give to or do for the plaintiff, in the value thereof, judge, con- demn him ; otherwise, acquit him." It is an observation of Bekker's 2 igin of that the actio empti in its original shape was just a simplification
- io of the actio ex stipulatu on a vendor's guarantees ; the stipulations
.pti. to which we have been alluding had become such unfailing accom- paniments of a sale as to be matters of legal presumption, the result being that the words " whereas the plaintiff bought from the defendant the sheep about which this action has arisen" were substituted in the demonstratio (as the introductory clause of the formula was called) for the detailed recital of what had been stipu- 'lated. Bekker justifies this by reference to the language of Varro, who seems to include under the words emptio, venditio not merely the agreement to buy and sell but also the stipulations that usually went with it. The introduction of an actio empti in this shape, however, was far from the recognition of sale as a purely consensual contract. If the price was not paid at once, the purchaser gave his stipulatory promise for it, or got some one on whom the vendor placed more reliance to do so for him, or else made a book-debt of it ; and, if it had to be sued for, it was in all these cases by a condictio ccrti and not by an action on the sale. If the price was paid but the thing purchased not delivered, the only remedy open to the purchaser was to get back his money by the same condiction, unless, indeed, the guarantee habere licere was held to cover delivery, in which case the purchaser might obtain damages in an actio ex stipulatu under the name of actio empti. But this actio empti, whether in- sisted on on the ground of non - delivery, eviction, or breach of some other warranty, was really an action on the verbal contracts 1 " In rebus mobilibus committit" (Gai., ii. 50). 2 Bekker, Aktionen, vol. i. p. 158. qui alienam rem vendidit et tradidit furtuni that had accompanied the sale, z. strictum jus action in which the judge could not travel beyond the letter of the engagements of the purchaser. In the latter years of the republic, and probably from the time of Q. Mucius Scaevola, it was a bonae fidei action. How had the change come about ? A single case of hardship may have been sufficient to induce it, such as the defeat of a claim for damages for eviction on the ground that the stipulatory guarantee had been accidentally overlooked. Ulpian says, " As the stipulatio duplae is a thing of universal observance, action on the ground of eviction will lie ex empto if perchance the vendor of a slave have failed to give his stipulatory guarantee, for everything that is of general custom and practice ought to be in view of the judge in a bonae fidei judicium." 3 Very little was required to convert the stricti juris actio empti, really nothing more than an actio ex stipulate, into a bonae fidei one, simply the addition by the praetor of the words "on con- siderations of good faith " (ex fide bona) to the " whatever the defendant ought to give to or do for the plaintiff. " The effect, however, was immeasurable, not that it did away with the prac- tice of stipulatory guarantees, for Varro wrote after the time of Q. Mucius (who speaks of the action on sale as a bonae fidei one), and references to them are abundant in the pages of the classical jurists ; but it rendered them in law unnecessary. It made sale a purely consensual contract in which, in virtue of the simple agreement to buy and sell, all the obligations on either side that iisually attended it were held embodied without express formulation or (still less) stipulatory or literal engagement. And, in instructing the judges to decide in every case between buyer and seller suing ex empto or ex vendito on principles of good faith, it really empowered them to go far beyond "general custom and practice," and to take cogniz- ance of everything that in fairness and equity and common sense ought to influence their judgment, so as to enable them freely to do justice between the parties in any and every question that might directly or indirectly arise out of their relation as seller and buyer. The history of the four nominate real contracts mutuum (i.e., Real con- loan of money or other things returnable genetically), commo- tracts, date (i.e., loan of things that had to be returned specifically), deposit, and pledge is more obscure than that of the consensual ones. 4 Down to the time of the Pcetilian law loan of money, corn, &c., was usually contracted per aes et Hbram; and it is probable that after the abolition of the nexum the obligation on a borrower to repay the money or corn advanced to him was made actionable, under the Silian and Calpurnian laws respectively, by a stipulation contemporaneous with the loan. With the rise of the /MS gentium loan became actionable on its own merits, that is to say, the advance and receipt of money as a loan of itself laid the borrower under obligation to repay it, even though no stipu- latory engagement had intervened ; the res (in this case the giving and receiving mutui causa) completed the contract. The obliga- tion that arose from it was purely unilateral, and enforcible, where the loan was of money, by the same action as stipulation and literal contract ; and so strictly was it construed that interest on the loan was not claimable along with it, the res given and received being the full measure of the obligation of repayment. The other three commodate, deposit, and pledge became independent real contracts very much later than mutuum, possibly not all at the same time, and none of them apparently until very late in the republic. All of them, of course, had been long known as transactions of daily life ; the difficulty is to say when they first became actionable, and under what guise. It is impossible within the space at our command to criticize the various theories entertained of their vicissitudes, for they neces- sarily vary to some extent in regard to each. We must content ourselves, therefore, with the simple statement that eventually, and within the period with which we are now dealing, they came to be recognized as independent real contracts, the res by which they were completed being the delivery of a thing by one person to another for a particular purpose, on the understanding that it was to be returned when that purpose was served. And it is to be noted that, while mutuum transferred the property of the money lent, the borrower being bound to return not the identical coins but only an equal amount,' in pledge it was only the possession that passed, while in commodate and deposit the lender or depositor retained both property and (legal) possession, the borrower or de- positary having nothing more than the natural detention. In all but mutuum, therefore, there was trust ; the holder was bound, to an extent varying according to circumstances, to care for what he held as if it were his own, and entitled to be reimbursed for outlay on its maintenance, bound to return it, yet excused if his failure to do so was due to a cause for which in fairness he could not be held responsible. Consequently the actions on these three con- tracts, differing from that on mutuum, were all bonae fidei, the 3 Ulp., "Lib. I. ad ed. aedil.," in Dig., xxi. 1, fr. 31, 20. 4 See Heiinbach, Creditum, pp. 498 sq., 633 sq. ; Bekker, 7<oci Plautini de rebtts creditis, Greifswald, 1861 ; Demelius, in the Zeitschr. f. Rechtsgesch., vol. ii. (1863), p. 217 sq. ; Bekker, Aktionen, vol. i. p. 306 sq. ; Ubbelohde, Zur Gesch. d. benannten Reakontracte, Marburg, 1S70 ; Huschke, Lehre vom Darlehn, Leipsic, 1882.
