Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

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earliest text on our subject, i.e. independent of Justinian, deals with deposit. It says that if A deposits with B and B redeposits with C, which may often be a proper thing to do, A has an actio against C1 This can hardly be contemplated as giving a right under the contract between B and C, for so far as appears A was not mentioned in it. Still less can we think of an obligation on C under the contract between A and B: here C was in no way contemplated.

But in fact, though the action is actio depositi utilis> it is not really thought of in terms of contract. Nor, in fact, can we think of the matter in terms of trust, for C can hardly be under a trust in favour of A^ of whom or of any interest of whom he has no knowledge whatever. It is, however, a rule somewhat late to develop, for in earlier law it does not seem that A would have had any action against C, though

he could claim a transfer of the action of B against C? Again Diocletian provided that if A deposited property with B or lent it to him on the terms that he was to redeliver it to C, C had an actio utilis against 5.3 This looks more like contract or trust, for C is expressly contemplated in the original contract. But in fact no attempt is made to rest it on any principle of law: the reason given in the text is propter aequitatis rationem. So too where A made a donatio to B on the terms that he was at a later date to hand the thing on to C, Diocletian says that earlier Emperors had enacted that C should have an actio utilis 'juxta donatoris voluntatem*\* and it has been shown that this had nothing to do with contract,^ but was a condictio for the recovery of property unjustly detained. It looks more like trust than contract, but it is in fact no more than a sporadic decision on general grounds of equity. There

1Coll. 10. 7. 8, from P. Sent.

2D. 16. 3. 16, which, as often, retains the older rule.

3C. Just. 3. 42. 8. 1.

4Vat. Fr. 286; C. Just. 8. 54. 3.

5Eisele, Beitrage, p. 83.

do not depend on representation. The son or slave cannot have been a very useful instrument in commerce so long as the civil law stood by itself, and the Praetor's rule makes him much more useful. So far as a juristic basis must be sought it may be found in the principle of taking risks: one who sets up a man with the means of trading with third persons (j>eculium)y and so induces them to deal with him, ought within limits to take the resulting risks. There was a further extension. If A set up an outsider to manage a business {institor) he was liable, again within certain limits, on all contracts in connexion with the business. But here too it is a question of taking risks, not of representation.1 There is no notion of 'extension of the personality* or the like, as is shown by the fact that in general the appointor does not acquire rights under the contracts made by the outsider and by the further fact that the actual contracting party (or his master, if he is a servus alienus) is both liable and entitled.2 The same result is ultimately reached where, apart from permanent appointment, A authorises B to make a contract on his behalf: i.e. A> the appointor, becomes liable under the contract so made but, apart from some rather doubtful cases, seems to depend for his rights against the third party on the not very satisfactory expedient of assignments

Outside the field of contract there was a little closer approximation to agency. There was indeed an overriding rule that, apart from certain exceptions within the family, no iuris civilis 'act in the law* could be done by a representative. The heres himself must make the act of entry on the hereditas. The parties themselves must make a mancipatio or a cessio in iure. But a power of alienation and acquisition through persons not members of the family, by

1 Actio institoria, D. 14. 3. See also the analogous actio exercitoria for shipmasters, D. 14. 1.

2 For details see Buckland, Text-book, p. 535.

3 Buckland, Text-book, p. 519. See pp. 309 - 310, post.

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the informal method of delivery, traditio^ was reached by a devious route which had nothing to do with the conception of agency. It had always been possible to use an intermediary for the piirely ministerial act of delivery or receipt, a nuntitiS) and it did not matter who he was. But, for the actual negotiation, the actual intent to transfer or to receive ownership (we need not here consider whether this is the exact way in which to describe the necessary intent), it was long inconceivable for this to be in some person other than the real transferor or transferee. Possession or non-posses- sion was thought of as matter of fact. If my employee held a thing of mine, he had not possession of it but only, as we should say, custody; he dettnet the thing. But if he gives the thing away and so loses control, then, whatever happens to the ownership, at any rate I lose possession. The same would be true if I told him to hand over the thing to someone else, e.g. a buyer. Thus if the owner had the necessary intent the ownership would pass with the possession. In the first century jurists began to ask whether, if the owner had manifested his willingness that ownership should pass at the discretion of the representative, it should not be possible for him to negotiate transfers and deal with the thing as if he were owner; and by the second century we get the clear rule that a procurator or general business manager, having a general authority to alienate, could validly transfer ownership. It was not quite so simple in acquisition, for possession by the procurator was not necessarily possession by the principal. But this step also was taken, and where a duly authorised procurator took possession, e.g. of a thing he had bought for his principal, both the ownership and the possession were regarded as vesting in the employer. At some later time the obvious corollary was drawn that the same principle would apply to other than general procurators and the rule appeared that an alienation or acquisition could be effected for me by anyone whom I authorised to act even for one transaction only. If

I instructed B to sell or buy a horse for me, he could carry out the negotiations and the receipt or delivery of the horse by him would complete the transaction and create or determine my ownership. This is no doubt agency, but does not express any principle of agency. There was no such principle; the rule was brought about without any theorising, even subconscious, about representation. This is shown by the very limited effect of the rule. It dealt only with the passing of property and possession: the rights and liabilities under the contract remained with the intermediary and would need to be expressly transferred. Except to the extent that we have seen, there was no agency in the law of contract.

We alsofindsomething like representation in connexion with procedure, but that will be more convehiently dealt with later.

5. CONSIDERATION

It is commonly said, and in a certain sense the statement is correct, that Roman law had no doctrine of consideration: there was in fact no rule that every promise must have, as a condition of its validity, consideration in the sense of a quid pro quo. If, by stipulation A promised B ioo aurei, it would be no reply to B's action that there was no consideration, that A had no benefit, or that B incurred no detriment. Something which looks much the same may be said of our law: if a man makes a promise in a certain form, i.e. under seal, the fact that there was no quid pro quo is no answer to an action. But in fact the situation is very different. Roman law had no general theory of contract, but a definite list of contracts, each with its own special rules; just as, according to one opinion, we have no general theory of tort but only a list of torts, each with its own special rules. The only contract which was flexible and capable of application to any purpose was stipulation and it did not require a quid pro quo: it was strictly unilateral. But consideration in its simple sense of quid pro quo plays a

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considerable part in various contracts, and indeed in all countries by far the greater number of contracts made from day to day are supported by consideration. In sale and hire a money price is an essential. In societas there must be a contribution from each side. In the innominate contracts there must be undertaking of service both ways. In loan of money or other fungibles (mutuum) it is obvious that consideration has been given by the lender, who alone can sue on what is essentially a unilateral contract. So too, although for the Romans commodatum and depositum were essentially gratuitous, and although we are now returning to the older common law habit of treating them generally as bailments, something which would satisfy our modern sophisticated notion of consideration may be found in them by men of good will: it is indeed obvious that the commodator and the depositee furnish consideration, but the depositor also parts with the physical possession of his goods, and even the commodatarius may be said to subject himself to a certain risk of damage in handling something, possibly dangerous, which he has borrowed. And something of the sort can be found in pledge, and in constttutum^ a formless promise to pay an existing debt, your own or another's. In the various cases in which consideration is required its character is obvious and does not in fact give rise to the questions which have arisen in our law on the matter. It might be possible to show from the texts that, where consideration is necessary, it must not be a past consideration, that it must move from the promisee and that it need not move to the promisor, but to do this is to falsify the institutions: the Romans did not think in terms of consideration. But it may be worth while to note that precisely because consideration was not a factor which had always to be found at all cost, the Romans could dispense with those subterfuges which disfigure our law. Since a debt could be released for nothing there was no need or temptation to hold that a canary was a good consideration

for a release of a debt of £500. On the other hand where consideration was required, it had to be a real consideration, not necessarily adequate but at any rate real. Each partner must make a substantial contribution. If the price or hire fixed under an alleged sale or hire was obviously derisory, or it was known that it was not meant to be paid, the transaction was not a sale or hire: it was a mere donatio and was governed by the very different rules of that institution.1

None of the modern systems based on Roman law has any theory of consideration and the German Biirgerliches Gesetzbuch, a highly eclectic system in which Roman and Germanic law are blended, has nothing of the kind. But some other systems have a principle which somewhat resembles consideration, and is called 'cause', which is supposed to originate in Roman law. The evidence for the conception of causa as a requisite in Roman law is twofold. There is a text, which may not be classical but is certainly in the Corpus Juris, which says that' cum nulla subest causa praeter conventionem' it is a nudum pactum, i.e. unenforceable.2 This text at least suggests that contract needed causa as well as consent. Further, there are texts which say that an agreement is void or voidable if it rests on an illicit or non-existent causa. The texts of the first group have been those mainly used to demonstrate the need of causa, but, explicit as they look, they are worthless for the purpose. The main difficulty to be faced in using these texts to support the dogma of causa is that there are four contracts in Roman law which are binding by mere consent, so that it is impossible to find a causa praeter conventionem. Various attempts have been made to surmount the difficulty, but the fact is that these contracts will not fitthe notion. What the language of the text cited means is that an agreement is not a contract unless the law has made it

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such; it is an expression of the distinction already mentioned between the Roman conception of contract and ours. As Bonfante has put it,1 the causa of the contract is the voluntas legis in antithesis to the voluntas of the parties. Merely to say that you owe money does not make you owe it.*

But there is another group of texts to be considered. We are told that an undertaking for no causa or a false causa is void and there is a condictio sine causa for recovering what is paid without causa, and an exceptio to resist payment where what was paid can be recovered. In all this the word causa is prominent.3 There is also condictio ex turpi causa for recovery of what is paid for illicit purposes where the payer was innocent. Causa is, however, a vague word and it does not seem to be used in either of these cases in the same sense as it is in the text with which we began.4 In that text, if we make it mean more than the fact that the law has attached obligation to the undertaking, it must mean any circumstance of any kind which has led the law to attach obligation. But in condictio sine causa and similar cases it means some economic advantage (not necessarily to the promisee) or detriment undertaken, in fact something

at first sight very like our doctrine of consideration in contract. This is entirely different and again it does not justify the view that causa was essential to contract. If I pay you money thinking I owe it when I do not, I can recover what I have paid {condictio indebiti). If I pay you money to constitute a wife's dos in a forthcoming marriage, and the marriage does not take place, I can recover the money {condictio sine causa).* If I give you money on the understanding that you will do something, and you fail to do it, I can recover the money {condictio ob rem dati, causa data causa non secuta).6 In our language this is failure of