Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

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mei socius meus socius non est'.1 If he intermeddles in the administration of what is firm business he makes the actual socius responsible for what he does.2 This would probably be true in our law, though there seems to be no authority.

In both Roman and common law the rule applies that the partners must show the utmost good faith in their dealing with the firm's affairs. Thus both systems have the rule that the partner must bring into account profits made by him in private dealings in matters in which the societas deals, but not those obtained in non-competing businesses.3 It does not seem clear that a contract of partnership in our law is a contract uberrimaefideiin the technical sense in which that term is applied to theformation of certain contracts, and it is difficult to compare Roman law because the treatment of non-fraudulent misrepresentation was quite different. But the notion of fraternitas and the fact that

condemnation of any socius in the actio pro socio involved infamia> with serious resulting civil disabilities, indicate that, if there had been a scheme of contracts in order of their confidential character, societas would have been near the top of the list.

It will be noticed that in the absence of any doctrine of mutual agency it was still more true in Roman law than it is in our law that there is 'no such thing as a firm known to the law'.4 There could be no such thing as an action against the societas^ as such, and therefore no question of being paid first out of firm assets, so far as they would go,5 before attacking the private property of individual partners. The creditor could look only to the socius with whom he had contracted, and those who had authorised him to con-

1 D. 17. 2. 20; Ex pane Barrow (1815), 2 Rose, 252.

2D. 17. 2. 21.

3D. 17. 2. 52. 5; Trimble v. Goldberg, [1906] A.C. 494.

4Though under the Rules of the Supreme Court partners may sue and be sued in the firm-name.

5As in Scots law.

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undertakes to do it, then, subject to certain rights of revocation and renunciation in both parties, A has an action against B if he fails to carry out the service properly and, on the other hand, B has against A an action for reimbursement of expenses and indemnification. It was originally nothing more than a friendly service, but out of it grew a very flexible and all-pervading institution. We have already noted that it was in connexion with mandate that Roman law got nearest to the conception, or at least, the practice, of agency; though the provision of remedies to the third party against the principal was not due to any development or application of ideas inherent in mandatum^ but to express praetorian legislation, introducing the actio institoria^ and the juristic construction of the actio quasi institoria^ which gives the third party an action against the mandator. But the rules of mandate itself made it useful in all manner of fields. In the formal manumission of a slave, per vindictam^ the necessary adsertor libertatis acted under mandate. In the adoption or emancipation of a child, the person to whom the child was collusively sold1 was in fact a mandatary, though, since an action for damages would not serve the purpose where the intent was to create or destroy

a patria potestas, other and more effectual remedies were devised.2 If a man at my request became surety for me, his means of recovery of money he was compelled to pay was an actio mandati. An adstipulator acted under mandate. Representatives in litigation acted under mandate.3 But there were more ingenious applications. If I asked A to lend money to B and he did so, and B failed to repay him, A could call on me to make good his loss, since a mandator is bound to reimburse his mandatary; thus I was in effect surety for B to A> and this in fact became a usual form of

1Buckland, Text-book, pp. 121, 131.

2The Praetor used his power oicoercitio to enforce \hefiducia involved. See Buckland, Text-book, p. 432.

3G. 4. 84.

suretyship, having some advantages over the more direct forms.. Again, as in the common law, rights under contract were unassignable and the device was hit upon of appointing the intended assignee my representative (mandatary) to sue on my behalf, with exemption from any obligation to account, procuratio in rem suam.1 It was an imperfect method, for a mandate could be revoked and was ipsofacto revoked by the death of either party, and further, since the debtor was no party to the transaction, there was nothing to prevent him from paying the original creditor and so discharging himself. All this was gradually amended, and, by the time of Justinian, if notice had been given to the debtor or if he had already made a part payment to the assignee, the assignment was thoroughly effective, though, to the end, as in our equitable assignments, the form still remained that of an authority to sue on behalf of the original creditor.

In our law the development has been similar, though retarded by scruples unknown to the Romans and arising from the rules against maintenance.2 The common law would allow a creditor to give his assignee a power of attorney to sue the debtor in the creditor's name. Equity permits assignments, even when informal, and requires notice (not necessarily written) only in order to bind the debtor. Finally, the Judicature Act, 1873,3 introduced in addition a direct written assignment, in which express written notice to the debtor is essential to the validity of the assignment itself.

Roma'n law never got so far as direct assignment, though it got very near it, for the actio utilis in his own name, which classical law gave to, the assignee where the mandate had been revoked, was given in an increasing number of cases

1 The expression 'for his own profit' in our early letters of attorney may be reminiscent of this: see Ames, Lectures on Legal History, p. 213, n. 2.

2Holdsworth, vii. pp. 535, 536.

3See now Law of Property Act, 1925, sect. 136.

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where there had been no mandate to sue but one might be claimed, beginning with the case of the buyer oinhereditas, but never becoming a general rule.1 While it is probable that equity has always required consideration for an assignment ofa legal (though not of an equitable) chose in action, unless indeed the gift could be said to be complete,2 it is clear that the statutory method of assignments does not require consideration ;4 and in the Roman system of procedural mandate there was no question of consideration. Even the utilis action in his own name which was given where an assignment could be claimed, was given in later law in some cases where there was no consideration. But the Romans never reached the notion of negotiability. It is said that the partes in the State contracts passed by transfer from hand to hand with no form, but in reality very little is known of these. The tesserae frumentariae, which were in effect claims on the public stores, passed by delivery and were bought and sold.5 We have also texts which seem to contemplate the passing of obligations affecting property to subsequent holders of the property,6 but it is generally held that these refer only to Universal successors'. In any case there is no negotiability in the modern sense: all rights would pass subject to equities: 'nemo dat quod non habet'.

8. INNOMINATE CONTRACTS

As we have noted, stipulation contract by demand and promise, question and answer, was in one sense the most important of contracts, since it could be applied to any sort of bargain. It is true that it was unilateral, but it was usually only a part of the whole transaction. It was also largely

3Law of Property Act, 1925, sect. 136.

4Re Westerton [1919] 2 Ch. 104.

5See, e.g., Cuq, Manuel,. 2nd ed. p. 103, n. 7.

6E.g. D. 40. 12. 22. pr.; 8. 4. 13. pr.

this was done, but the creditor had the right to sue any one of the debtors for the whole sum. In classical law, however, the mere joinder of issue in this action barred any action against any other debtor: there was but one obligation and the same matter could not be sued on twice.1 Under Justinian this harsh rule no longer held and, so long as the claim was unsatisfied, any of the debtors could be sued. The resulting state of things was not unlike our joint and several liability. There is, however, a difference which is more apparent than real. With us any one ofjoint and several debtors who has paid can require contribution from the others. In Rome he had, as such, no such right. But this means little. Becoming correal debtors almost necessarily presupposes previous dealings between the persons rendering themselves so liable, and these will commonly have created an obligation to contribute. Thus, in the very wide conception of societas, correi will usually,

or often, be socii, if only in that transaction (societas unius rei)y and socii^ as such, were under an obligation of contribution.

There may be joint creditors as well as debtors. Roman law admitted of correi credendi as well as correi debendi^ and at least in classical law an action by one, reaching joinder of issue {litis contestation barred action by any other. But in fact very little indeed is said of this case; the other was obviously that which occurred in practice. The mutual agency of partners gives more room for it in our law, but even so it is not prominent; in practice the partnership sues as such.2

but only full satisfaction released the others (simple solidarity)—such cases appear to be equitable relaxations of the rule—or of the cases of penal joint liability in which the obligation was cumulative, i.e., each debtor had to pay the whole even if the others had paid. Much confusion is caused by the use of the term * solidarity' and the phrase 'in solidum' to designate both of these types of liability as well as that described above.

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10. SECURITY

Roman law, like our own, recognised both real and personal security. Real security took three forms,fiducia,involving transfer of ownership, resembling our old legal mortgage;1 pignuS) involving transfer of possession but not ownership as in our pledge or pawn; and hypothec, involving no transfer of actual possession or ownership, but giving a right to take possession, and particularly appropriate to land.

Thus there was an evolution somewhat like our own, but the development was by the introduction of new institutions, functioning side by side, rather than by such gradual modification as has altered the character of our mortgage, at one time a conveyance defeasible upon condition, and now, by recent legislation, recognised as being no more than a charge. No doubt there was in earliest Rome a sort of pledge; a thing could be handed over as a guarantee that an undertaking would be carried out, to be forfeited if it was not, but this was rather a conditional transfer than anything else. The real security of earlier Rome wzsjiducia, a conveyance of property with an agreement for reconveyance if money was paid by a certain time. This was much like Littleton's mortuum vadium? There was no equity of redemption, and the creditor, being owner, could at any time make a good title to a transferee, so that the debtor's only remedy would be against the creditor. Fiducia endured, with no material change, throughout the classical age, and, though something like an equity appears in later law, it is not very

1 Under the property legislation of 1925 the mortgagee of land, for conveyancing reasons, receives merely a term of three thousand years or, alternatively, a charge by way of legal mortgage having substantially the same effect. But in either case his powers do not greatly differ from those of the old legal mortgagee to whom the borrower transferred his whole interest. See Law of Property Act, 1925, ss. 85—120.

a See Co. Lit. 205 a.