The Institutes of Justinian Part 16

t.i.tLE XX. OF FIDEJUSSORS OR SURETIES

Very often other persons, called fidejussors or sureties, are bound for the promisor, being taken by promises as additional security.

1 Such sureties may accompany any obligation, whether real, verbal, literal or consensual: and it is immaterial even whether the princ.i.p.al obligation be civil or natural, so that a man may go surety for the obligation of a slave either to a stranger or to his master.

2 A fidejussor is not only bound himself, but his obligation devolves also on his heir' 3 and the contract of suretys.h.i.+p may be entered into before no less than after the creation of the princ.i.p.al obligation.

4 If there are several fidejussors to the same obligation, each of them, however many they are, is liable for the whole amount, and the creditor may sue whichever he chooses for the whole; but by the letter of Hadrian he may be compelled to sue for only an aliquot part, determined by the number of sureties who are solvent at the commencement of the action: so that if one of them is insolvent at that time the liability of the rest is proportionately increased. Thus, if one fidejussor pay the whole amount, he alone suffers by the insolvency of the princ.i.p.al debtor; but this is his own fault, as he might have availed himself of the letter of Hadrian, and required that the claim should be reduced to his rateable portion.

5 Fidejussors cannot be bound for more than their princ.i.p.al, for their obligation is but accessory to the latter's, and the accessory cannot contain more than the princ.i.p.al; but they can be bound for less. Thus, if the princ.i.p.al debtor promised ten aurei, the fidejussor can well be bound for five, but not vice versa; and if the princ.i.p.al's promise is absolute, that of the fidejussor may be conditional, though a conditional promise cannot be absolutely guaranteed, for more and less is to be understood of time as well as of quant.i.ty, immediate payment being regarded as more, and future payment as less.

6 For the recovery of anything paid by him for the princ.i.p.al the fidejussor can sue the latter by the action on agency.

7 A fidejussor may be taken in Greek, by using the expressions 'tei emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be taken as equivalent to 'lego.'

8 It is to be observed that in the stipulations of fidejussors the general rule is that whatever is stated in writing to have been done is taken to have really been done; and, accordingly, it is settled law that if a man signs his name to a paper stating that he became a fidejussor, all formalities are presumed to have been duly observed.

t.i.tLE XXI. OF LITERAL OBLIGATION

Formerly there was a kind of obligation made by writing, and said to be contracted by the entry of a debt in a ledger; but such entries have nowadays gone out of use. Of course, if a man states in writing that he owes money which has never been paid over to him, he cannot be allowed, after a considerable interval, to defend himself by the plea that the money was not, in fact, advanced; for this is a point which has frequently been settled by imperial const.i.tutions. The consequence is, that even at the present day a person who is estopped from this plea is bound by his written signature, which (even of course where there is no stipulation) is ground for a condiction. The length of time after which this defence could not be pleaded was formerly fixed by imperial const.i.tutions at five years; but it has been reduced by our const.i.tution, in order to save creditors from a more extended risk of being defrauded of their money, so that now it cannot be advanced after the lapse of two years from the date of the alleged payment.

t.i.tLE XXII. OF OBLIGATION BY CONSENT

Obligations contracted by mere consent are exemplified by sale, hire, partners.h.i.+p and agency, which are called consensual contracts because no writing, nor the presence of the parties, nor any delivery is required to make the obligation actionable, but the consent of the parties is sufficient. Parties who are not present together, therefore, can form these contracts by letter, for instance, or by messenger: and they are in their nature bilateral, that is, both parties incur a reciprocal obligation to perform whatever is just and fair, whereas verbal contracts are unilateral, one party being promisee, and the other alone promisor.

t.i.tLE XXIII. OF PURCHASE AND SALE

The contract of purchase and sale is complete immediately the price is agreed upon, and even before the price or as much as any earnest is paid: for earnest is merely evidence of the completion of the contract.

In respect of sales unattested by any written evidence this is a reasonable rule, and so far as they are concerned we have made no innovations. By one of our const.i.tutions, however, we have enacted, that no sale effected by an agreement in writing shall be good or binding, unless that agreement is written by the contracting parties themselves, or, if written by some one else, is at least signed by them, or finally, if written by a notary, is duly drawn by him and executed by the parties. So long as any of these requirements is unsatisfied, there is room to retract, and either purchaser or vendor may withdraw from the agreement with impunity--provided, that is to say, that no earnest has been given. Where earnest has been given, and either party refuses to perform the contract, that party, whether the agreement be in writing or not, if purchaser forfeits what he has given, and if vendor is compelled to restore double of what he has received, even though there has been no express agreement in the matter of earnest.

1 It is necessary that the price should be settled, for without a price there can be no purchase and sale, and it ought to be a fixed and certain price. For instance, where the parties agreed that the thing should be sold at a price to be subsequently fixed by t.i.tius, the older jurists doubted much whether this was a valid contract of sale or not.

The doubt has been settled in the following way by our decision; if the third person named actually fixes the price, it must certainly be paid, as settled by him, and the thing must be delivered, in order to give effect to the sale; the purchaser (if not fairly treated) suing by the action on purchase, and the vendor by the action on sale. But if the third person named will not or cannot fix the price, the sale will be void, because no price has been settled. This rule, which we have adopted with regard to sales, may reasonably be extended also to contracts of hire.

2 The price, too, should be in money; for it used to be much disputed whether anything else, such as a slave, a piece of land, or a robe, could be treated as a price. Sabinus and Ca.s.sius held the affirmative, explaining thus the common theory that exchange is a species, and the oldest species, of purchase and sale; and in their support they quoted the lines of Homer, who says in a certain pa.s.sage that the army of the Greeks procured themselves wine by giving other things in exchange, the actual words being as follow: 'then the longhaired Greeks bought themselves wine, some with bronze, some with s.h.i.+ning iron, some with hides, some with live oxen, some with slaves.' The other school maintained the negative, and distinguished between exchange on the one hand, and purchase and sale on the other: for if an exchange were the same thing as a sale, it would be impossible to determine which is the thing sold, and which is the price, and both things cannot be regarded in each of these characters. The opinion, however, of Proculus, who affirmed that exchange was a species of contract apart by itself, and distinct from sale, has deservedly prevailed, as it is confirmed by other lines from Homer, and by still more cogent reasons, and this has been admitted by preceding Emperors, and is fully stated in our Digest.

3 As soon as the contract of sale is concluded--that is, as we have said, as soon as the price is agreed upon, if the contract is not in writing--the thing sold is immediately at the risk of the purchaser, even though it has not yet been delivered to him. Accordingly, if a slave dies, or is injured in any part of his body, or if a house is either totally or partially burnt down, or if a piece of land is wholly or partially swept away by a river flood, or is reduced in acreage by an inundation, or made of less value by a storm blowing down some of its trees, the loss falls on the purchaser, who must pay the price even though he has not got what he purchased. The vendor is not responsible and does not suffer for anything not due to any design or fault of his own. If, however, after the purchase of a piece of land, it receives an increase by alluvion, it is the purchaser who profits thereby: for the profit ought to belong to him who also bears the risk. And if a slave who has been sold runs away, or is stolen, without any design or fault of the vendor, one should look to see whether the latter expressly undertook to keep him safely until delivery was made; for, if he did this, the loss falls upon him, though otherwise he incurs no liability: and this is a rule which applies to all animals and other objects whatsoever. The vendor, however, will be bound to transfer to the purchaser all his rights of action for the recovery of the object or damages, for, not having yet delivered it to the purchaser, he still remains its owner, and the same holds good of the penal actions on theft and on unlawful damage.

4 A sale may be made conditionally as well as absolutely. The following is an example of a conditional sale: 'If Stichus meets with your approval within a certain time, he shall be purchased by you for so many aurei.'

5 If a man buys a piece of land which is sacred, religious, or public, such as a forum or basilica, knowing it to be such, the purchase is void. But if the vendor has fraudulently induced him to believe that what he was buying was not sacred, or was private property, as he cannot legally have what he contracted for, he can bring the action on purchase to recover damages for what he has lost by the fraud; and the same rule applies to the purchase of a free man represented by the vendor to be a slave.

t.i.tLE XXIV. OF LETTING AND HIRING

The contract of hire resembles very closely the contract of sale, and the same rules of law apply to both. Thus, as the contract of sale is concluded as soon as the price is agreed upon, so the contract of hire is held to be concluded as soon as the sum to be paid for the hiring is settled, and from that moment the letter has an action on the letting, and the hirer on the hiring.

1 What we have said above as to a sale in which the price is left to be fixed by a third person must be understood to apply also to a contract of hire in which the amount to be paid for hire is left to be fixed in the same way. Consequently, if a man gives clothes to a fuller to clean or finish, or to a tailor to mend, and the amount of hire is not fixed at the time, but left to subsequent agreement between the parties, a contract of hire cannot properly be said to have been concluded, but an action is given on the circ.u.mstances, as amounting to an innominate contract.

2 Again, a question often arose in connexion with the contract of hire similar to that which was so common, namely, whether an exchange was a sale. For instance, what is the nature of the transaction if a man gives you the use or enjoyment of a thing, and receives in return the use or enjoyment of another thing from you? It is now settled that this is not a contract of hire, but a kind of contract apart by itself. Thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract.

3 So nearly akin, indeed, is purchase and sale, to letting and hiring, that in some cases it is a question to which cla.s.s of the two a contract belongs. As an instance may be taken those lands which are delivered over to be enjoyed for ever, upon the terms, that is to say, that so long as the rent is paid to the owner it shall not be lawful for the latter to take the lands away from either the original hirer, or his heir, or any one else to whom he or his heirs has conveyed them by sale, gift, dowry, or in any other way whatsoever. The questionings of the earlier lawyers, some of whom thought this kind of contract a hiring, and others a sale, occasioned the enactment of the statute of Zeno, which determined that this contract of emphyteusis, as it is called, was of a peculiar nature, and should not be included under either hire or sale, but should rest on the terms of the agreement in each particular case: so that if anything were agreed upon between the parties, this should bind them exactly as if it were inherent in the very nature of the contract; while if they did not agree expressly at whose risk the land should be, it should be at that of the owner in case of total destruction, and at that of the tenant, if the injury were merely partial. And these rules we have adopted in our legislation.

4 Again, if a goldsmith agrees to make t.i.tius rings of a certain weight and pattern out of his own gold for, say, ten aurei, it is a question whether the contract is purchase and sale or letting and hiring. Ca.s.sius says the material is bought and sold, the labour let and hired; but it is now settled that there is only a purchase and sale. But if t.i.tius provided the gold, and agreed to pay him for his work, the contract is clearly a letting and hiring.

5 The hirer ought to observe all the terms of the contract, and in the absence of express agreement his obligations should be ascertained by reference to what is fair and equitable. Where a man has either given or promised for hire for the use of clothes, silver, or a beast of burden, he is required in his charge of it to show as much care as the most diligent father of a family shows in his own affairs; if he do this, and still accidentally lose it, he will be under no obligation to restore either it or its value.

6 If the hirer dies before the time fixed for the termination of the contract has elapsed, his heir succeeds to his rights and obligations in respect thereof.

t.i.tLE XXV. OF PARTNERs.h.i.+P

A partners.h.i.+p either extends to all the goods of the partners, when the Greeks call it by the special name of 'koinopraxia,' or is confined to a single sort of business, such as the purchase and sale of slaves, oil, wine, or grain.

1 If no express agreement has been made as to the division of the profit and loss, an equal division of both is understood to be intended, but if it has, such agreement ought to be carried into effect; and there has never been any doubt as to the validity of a contract between two partners that one shall take twothirds of the profit and bear twothirds of the loss, and that the remaining third shall be taken and borne respectively by the other.

2 If t.i.tius and Seius agreed that the former should take twothirds of the profits, and bear only onethird of the loss, and that the latter should bear twothirds of the loss, and take only onethird of the profits, it has been made a question whether such an agreement ought to be held valid. Quintus Mucius thought such an arrangement contrary to the very nature of partners.h.i.+p, and therefore not to be supported: but Servius Sulpicius, whose opinion has prevailed, was of a different view, because the services of a particular partner are often so valuable that it is only just to admit him to the business on more favourable terms than the rest. It is certain that a partners.h.i.+p may be formed on the terms that one partner shall contribute all the capital, and that the profits shall be divided equally, for a man's services are often equivalent to capital. Indeed, the opinion of Quintus Mucius is now so generally rejected, that it is admitted to be a valid contract that a partner shall take a share of the profits, and bear no share in the loss, which indeed Servius, consistently with his opinion, maintained himself. This of course must be taken to mean that if there is a profit on one transaction, and a loss on another, a balance should be struck, and only the net profit be considered as profits.

3 It is quite clear that if the shares are expressed in one event only, as for instance in the event of profit, but not in the event of loss, or vice versa, the same proportions must be observed, in the event of which no mention has been made, as in the other.

4 The continuance of partners.h.i.+p depends on the continuing consent of the members; it is dissolved by notice of withdrawal from any one of them. But of course if the object of a partner in withdrawing from the partners.h.i.+p is to fraudulently keep for himself some accruing gain--for instance, if a partner in all goods succeeds to an inheritance, and withdraws from the partners.h.i.+p in order to have exclusive possession thereof--he will be compelled to divide this gain with his partners; but what he gains undesignedly after withdrawing he keeps to himself, and his partner always has the exclusive benefit of whatever accrues to him after such withdrawal.

5 Again, a partners.h.i.+p is dissolved by the death of a partner, for when a man enters into a contract of partners.h.i.+p, he selects as his partner a definite person. Accordingly, a partners.h.i.+p based on the agreement of even several persons is dissolved by the death of one of them, even though several others survive, unless when the contract was made it was otherwise agreed.

6 So too a partners.h.i.+p formed for the attainment of some particular object is terminated when that object is attained.

7 It is clear too that a partners.h.i.+p is dissolved by the forfeiture of the property of one of the partners, for such an one, as he is replaced by a successor, is reckoned civilly dead.

8 So again, if one of the partners is in such embarra.s.sed circ.u.mstances as to surrender all his property to his creditors, and all that he possessed is sold to satisfy the public or private claims upon him, the partners.h.i.+p is dissolved, though if the members still agree to be partners, a new partners.h.i.+p would seem to have begun.

9 It has been doubted whether one partner is answerable to another on the action of partners.h.i.+p for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partners.h.i.+p business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself.