mutuum, or loan for consumption, the commodatum, or loan for use, the pignus, or pledge, and the deposit, terms which, even in their Latin form, have been orthodox elements of Common law terminology, since the case of Coggs v. Bernard.12 Some of these contracts are certainly older than law itself; that is, they must have been frequently entered into and have forced themselves on popular attention before a magistrate was ever called upon to vindicate their breach or any breach. When it became common to call everything that justified the intervention of a magistrate an obligation, it was impossible to refuse that name to the bond created by these transactions, although it is likely that these transactions were longer left to the consciences of individuals to adjust than the stipulation or the delict. Once admitted to be obligations, they had the serviceable characteristic that there was an obvious point at which to affix the obligation. That was the delivery of the res, to be returned in genere in the case of the mutuum, and in specie in the other cases. Later practise introduced a number of refinements into these common situations, and these readily enough became a part of the complex that went under the name of each of them, so that it still remained enough to name the transaction in order to apprize the participants of what in good faith was expected of them. There was one obvious obligation of the recipient. He had at some time to return the res in kind or in specie. If the thing had been lost without anyone's fault, the giver could not very well, ex fide bona, demand it. Nor was there good faith or good sense in such a demand, even if the thing was lost through the recipient's carelessness, if as in the case of deposit, the giver ought to have taken the recipient's bad habits into account. A borrower for use on the contrary, whether known to be careless or not, might reasonably be expected to exercise an unusual degree of diligence, while in the case of a loan for consumption, such as a loan of money, it was certainly immaterial how careless or careful the borrower was of his money. He none the less owed repayment. This matter of due care has been somewhat excessively schematized. It is not really correct to say that one of the obligations of the recipient of the res, in commodatum, pignus or deposit was to use a certain amount of care. No action lay against him, if he did 12 (1703) 2 Ld. Raymond 909, 1 Smith L. C. 369. not. But the amount of care was very material in determining the bona fides of the demand for the restitution of the res. It is likely that a nice discrimination of degrees of care did not take place until later on. Certainly the three degrees of care, which Lord Holt1 thought he found in the Roman sources, are not there at all. The distinction between kinds of negligence, between culpa levis in abstracto and culpa levis in concreto, between both of these and culpa lata or latoir, was made either by the civilians or by the compilers of the Digest. When they occur in our texts, they seem to be loosely descriptive words rather than technical terms. All these "real" contracts were meant to be gratuitous. The mutuum carried no interest unless a special stipulation for interest was made. The care of the property in the deposit, its use in the commodatum, could not be paid for. If an agreement for payment was made, it denatured the transaction. It was no longer one of the contracts named, but a wholly different one. Yet a great many collateral agreements could be made, concerning the place or the nature of the use or custody, and these were eminently material in determining the good faith of demanding restitution of the res. If a borrower could not restore the property and had been guilty of carelessness, he might still plead by way of exception, that he had been specially exempted from the duty of care by the lender. In the action on the stipulation, the primary obligation was also the secondary one. What the defendant had promised is what the plaintiff asked the court to assist him in getting. In delictual actions, a penalty was demanded. But in actions arising out of real contracts, the primary obligation could generally not be enforced. In most cases the recipient of the res failed to restore it, not because he would not, but because he could not. The res had been destroyed through his negligence. By the Aquilian law, damage resulting from negligence had long been actionable, but, as we have seen, the penal character of the demand had been whittled away to what in most cases must have been mere compensation. In these real contracts, there was the less reason for attaching a penalty to the defendant's negligence, because the plaintiff was no longer, as in all delicts, a passive sufferer, but had actively participated in bringing the transaction about. If good faith justified the claim for redress, this claim could never go beyond the restoration of the status quo, and since by hypothesis, that was strictly speaking impossible, the 13 Coggs v. Bernard, supra, n. 12. money value of the lost res was an approximate equivalent. The transmutation of a primary claim of varied content into a secondary claim that pretty uniformly sounds in money damages, a transmutation characteristic of the Common law system-is clearly presented at Roman law for the first time in these actions based on good faith. All the contracts that could be fitted into the four species of Paul, with the exception of the real contracts of the Institutes and the so-called consensual contracts, were in the later Civil law called Innominate, a term which means unclassified, or miscellaneous. Exchange was the commonest, and the status of exchange was for a long time in doubt. In the main, these contracts had no great economic importance, but they were extremely convenient frames into which new economic situations could be put. As a grotesque example, we may cite the fact that in the witchcraft trials of relatively modern times, the compact between the witch and the Devil was declared to be of the form, do ut facias.14 VII Paul apparently meant his scheme to fit all contracts, including those which in the Institutes are classed as "consensual." These are emptio-venditio, or sale, locatio-conductio, which included lease, hiring and contracts for services, societas or partnership, and mandate, which, among other possibilities, covered agency. Evidently, even if these contracts had no theoretical common basis, their enormous practical importance would have justified a separate treatment. A theoretical common basis had, however, long been found for them. They were declared to be based upon mere consent. The obligation arose as soon as the parties were of one mind as to the transaction, and that agreement was to be inferred, not from the performance of a fixed ritual, but from any of their words or actions. The elements of the transaction could be analyzed and the performance of each one secured by stipulation. In many cases that was done. But it was not necessary. The agreement was itself obligatory. Though sales were plainly the most important and must have been in some form known from the remotest antiquity, the develop 14 Torreblanca, Libri de Magis, (1613) quoted by Wächter, Die Hexenprozesse in Deutschland, Beiträge z. Deut. Gesch, p. 87. FUNDAMENTAL CONCEPTS OF THE ROMAN LAW 495 ment of the consensual element can best be seen in mandate, the least characteristic of all this group. Mandate consisted in instructions given by A to B to do some act wholly or partly on A's behalf, or at any rate, not wholly on B's behalf. We may call this agency, if we take care not to drag in the legal connotations of this term, and above all to remember that the contract created no relations whatever between the principal and third persons, except so far as general property rights permitted the third person to pursue his res into the hands of anyone enriched by it. In mandate, until B had acted, A might renounce or B might repudiate the transaction. The obligation consequently depended on the arbitrary will of either party. We should be tempted to call this no obligation at all, following excellent Roman authority. When we add to that that the transaction was gratuitous, that to accept money for the services, transformed the mandate into something wholly different, there seems the less reason for treating this transaction as different in type from the real contracts, although the res here, as in the Innominate contracts, was a facere. But there was an important qualification to the right of repudiation or of renunciation. Neither might be made unseasonably. If A, relying on B's expected services, can no longer get them done without additional expense; or if B has involved himself in such preparation for these services that he cannot countermand them. without loss, there was at least the obligation in good faith to make the loss good. This still makes the obligation depend upon an actual external act. But there was one special situation in which it was necessary to go further. Suppose, at the moment of repudiation, B had as yet taken no steps, but that his inaction had caused the loss to A of an opportunity that does not again present itself. Here is a form of damage that good faith may well wish to compensate, but if we seek a moment at which to attach the obligation, it can only be when the mandate was accepted, when the agreement was reached. Max Radin. School of Jurisprudence, (To be continued) California Law Review Published by the Faculty and Students of the School of Jurisprudence of the University of California, and issued Bi-monthly throughout the Year Y The fifteenth annual meeting of the California State Bar Association was held at Catalina, September 11-12-13. The meeting was noteworthy for its concentration on a few things of importance, the chief of which is the incorporation of the Bar. There was considerable debate over the constitutional amendments to be voted on at the next State election in November. Nearly all agreed that the Bar Association should neither approve nor disapprove constitutional amendments or legislation on matters of public policy. A lawyer may have decided views on the Water and Power Act or on taxation. It is not, however, the function of the Bar Association |