Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

3?-6 PARTICULAR CONTRACTS

held but at least more doubtful, vice versa.1 Under Justinian, suing one of these parties no longer had any effect on the liability of any other, though of course satisfaction had. It is indeed very widely held that since, if there is no debtor, there can be no debt, and the surety is liable only for a debt, the deportation', involving civil extinction, of the debtor, or his death without successors, released the surety. As it is usually an insolvent man who dies without successors and it is only in insolvency that suretyship is really important, this rule is startling, if it existed. But it rests only on a far from irresistible logic and is contrary to the texts. It is alleged that these have been altered; in any case the alleged doctrine is not true for Justinian's law.2

In classical law, as with us, a creditor might proceed against the surety even though he had not sued the defaulting debtor ;3 indeed, it was only in that event that in classical law he could sue the surety at all. But there was an important practical restriction on this: to sue the surety when the principal debtor was ready to pay was an actionable iniuria.* Under Justinian, however, after the Digest was published, elaborate rules were laid down under which in general no action could be brought against the surety until the debtor had been sued.5 As with us, a contract of indemnity was distinct from one of suretyship,6 though under Justinian they tend to become confused.

In our law the fact that the principal debt is time-barred does not release the surety.? In Rome the point was less important since most contractual actions could not be time-barred in classical law (the actions were perpetuae), and when in the fifth century a time limit was imposed this was very long, normally thirty years; so far, however, as can be made out the rule there was the same.8

There was frequently more than one guarantee, and, as they were not necessarily taken at the same time or with each other, there was no privity between the sureties. The result was that while one surety who had paid the debt had his claim under mandate against the principal debtor, this would commonly be illusory against him, for he was probably not able to pay, and the surety had in principle no claim at all against his co-sureties. This was early remedied as to the most ancient forms of adpromissio by legislation which in effect limited his liability to his proportion of the debt. The rule did not apply to what became the most usual form of adpromissioy i.e.fideiussio; but this defect was later remedied first by entitling the surety, as in our law, to claim a transfer from the creditor of all securities he held,1 and secondly, under Hadrian, by limiting the liability of thefideiussorto his proportion in a way analogous to, but differing in detail from, the protection given by the earlier legislation {beneficium divisionis). In particular the debt was divided only by the number of solvent sureties. In our law the sureties, whether they had contracted the obligation together, in any way, or not, seem, always to have had the right to call on the others for contribution and even to have them joined in the action, if any. And under the Judicature Act, 1873, the division is on the lines of Hadrian's beneficium divisionis: only the solvent sureties are counted, as had been the previous rule in equity, though not at common law.2

Under our law, so soon as an ascertained sum is due from the debtor to the creditor, a surety for the debtor can obtain an order directing the debtor to pay, whether demand has yet been made on the surety or not.3 The Roman law had no such machinery. On the other hand,

1 Beneficium cedendarum actionum, D. 46. 1. 17, etc.; Mercantile Law Amendment Act, 1856, sect. 5.

2See now Judicature Act, 1925, sect. 44.

3Rowlatt, Law of Principal and Surety, 3rd ed. p. 188 and the cases there cited, n. u.

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with minor exceptions which do not affect the principle, all types of surety known to the later Roman law were released by any act of the creditor which absolutely destroyed the principal debt, the doctrine being that a surety could not owe where there was no principal debt.1 Thus a formal release, an acceptilatio, absolutely released the sureties.2 But an informal release by a pact not to sue the debtor, though enforceable, did not necessarily release sureties, since the debt still existed, though it could not be enforced against the debtor. It did so, however, if it was expressed in rem, i.e. not limited to the debtor; this is an exception to the rule that an agreement cannot bind or benefit third persons, justified on the ground that apart from this effect the pact would be useless, since the surety if called on to pay could then sue the principal debtor. The corollary followed from this reasoning that if from any cause the surety was barred from claiming from the principal debtor, the pact with the latter did not release the surety.3 In our law it is possible to reserve rights against the surety where the transaction with the principal debtor is anything short of an absolute release. The normal surety, thefideiussor, was not released by concessions made to the debtor, such as giving him time, which left the debt intact, though these release him in our law.4 But where the suretyship took the indirect form of a mandate to lend money to a third party, so that the lender was a mandatary, and owed duties to his surety, the mandator, it was a breach of these duties for him to do anything which lessened his rights against the debtor, and any such conduct released the mandator.5

1 This was the reasoning in Coutts and Co. v. Browne-Lecky, [1947] K.B. 104, where a guarantee of an infant's overdraft was declared void. But, as Cheshire and Fifoot point out, it would seem that on its proper construction the contract was one of indemnity, not of guarantee: Law of Contract, 5th ed. p. 343, n. 2.

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exactly a negotium.1 Elsewhere, however, we are told by Julian that one who pays money when it is not due ' hoc ipso aliquid negotii gerit', and the same text2 refuses the action in a case where justice obviously requires it, on the ground that 'nullum negotium inter eos contraheretur'. With them, however, as with us, the verb is used more widely than the noun: a man can contract an obligation in many ways besides contract. It is true that condictiofurtiva, the action to recover the value of things stolen, apart from the penalty, which is quasi-contractual, does not rest on any sort of negotium^ but condictiofurtiva is an exception to all rules. The great classical lawyers of the second century always limit the noun contractus to an agreement with a civil action. It is only after this has become settled practice that the name quasi-contract comes to be applied to those relations which do not rest on agreement or presuppose any wrongdoing. It may be noted, however, that under Justinian the wider signification of the word contractus recurs. Thus he calls legacy and donatio contracts.3 The notion of contract (in the sense of agreement) implied in the law, which according to Holdsworth4 underlies the common law of quasi-contract and according to Winfield* has at least played a large part in it, has thus no place in the Roman law of the matter: the texts repeatedly emphasise the fact that there is no agreement.6 It seems in our law no more than a survival of the notion to be found in our older books that there was no conceivable source of obligation in the common law, except tort or agreement, so that if there was clearly no tort the thing had to be linked with agreement ;7 though what the holders of this view would do about obligations arising from status it is not easy to see.

When we compare Winfield's list with those in books

7 'The fact is the covenant or agreement, or the offence, which two are the only way [of] making obligations': West's Symboieograpkie, pt. i, sect. 3.

on Roman law, or the list given by Justinian, we find that though they have much in common they are far from coinciding. The action for money had and received covers largely the same ground as the Roman condictiones for recovery of unlawful enrichment (we need not here consider whether enrichment is exactly the right word), but not exactly. And quantum meruit on discharge by breach could not occur, since breach is never of itself a ground of discharge in Roman law.1 Quantum meruit 'as a mode of redress on a new contract which has replaced an earlier one'2 was always treated in Roman law as substituted contract. Quantum valebafi could not arise, for there was no such thing as sale at a reasonable price. The case of the stakeholder is represented in Roman law by the sequester^ who receives a thing from more than one party, to be given to the winner of the dispute; and this is always treated as contract. Though, so far as the texts go, no one but the parties to the deposit has an action, there seems no reason why, if the agreement was that it was to be given in a certain event to a third party, the case put by Win field,* the actio utilis which we saw 5 to be given to the third party, should not apply here. But it would be pro tanto contract for a third party: such a thing is not contemplated as quasicontract. Reimbursement of money paid on request is in Roman law pure contract; there is no doctrine of consideration, and the case is one of mandatum giving a claim to reimbursement. The same would be true of recovery of unauthorised gains made by an agent. Very few of Winfield's cases of compulsory payment6 could arise in Roman law. If A made a nuisance on 5's land to the detriment of C without BJs privity, B was bound only to allow C to abate the nuisance and to cede any action he had against AJ It was never thought of as quasi-contract; it is in fact

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praetorian and quasi-contract is civil. For convenience modern writers sometimes treat it as quasi-contractual, but this is rather bold. The fact that some unauthorised person had enabled a third person to acquire a lien over property was no answer in Roman law to the claim of the true owner, as we have seen.1 Account stated was always contract. The conception of delict was, as we shall shortly see, so different from that of tort that there was no such thing as waiver of tort. The surety's right to recoupment will almost always be contractual, since authorisation to pay was a mandate and that is a contract. An unauthorised person who voluntarily pays my debt has in general no claim in either system, but at least in Roman law he might have such a right under the rules of negotiorum gestio^ if his intervention was beneficial to the principal and reasonable in the circumstances. There seems to be no corresponding right in our law except when the payment was made under threat or pressure of legal proceedings or legal restraint of goods.2

But another difference is more striking: it is in the conception of the relation. With the possible exception of the stakeholder, all Winfield's cases are of what Austin calls ' sanctioning* rights. They are all cases in which the relation arises only when there is a right of action, when there exists, not perhaps a wrong done, but a financial maladjustment which needs correction. And they all seem to be cases of unilateral obligation. The Roman attitude was different. Having in their minds a negotium as the basis of the matter they include in their list a number of relations which set up obligations, in some cases reciprocal, where there is as yet no right of action.3 Thus it is that the condictiones, which correspond to the action for money had and received to my use, and the like, are not the most import-

rights are really rights at all—for the Romans they certainly were, though they do not speak in terms of right and duty.

ant, and are indeed the last to be mentioned by Justinian; while it seems clear that this action, with that for money paid, dominates the English view of the matter. Negotiorum gestioy of which we shall have more to say, may perhaps come within the English notion, for the relation does not exist till money is due, but not exactly, for it sets up reciprocal obligations. The obligations between tutor and ward, between common owners, between heres and legatee, are all cases in which there is a standing * quasi-contractual' relation, but not necessarily any immediate right of action. It may be mere historical accident which leads to the difference of conception. The relations of guardian and ward in modern English law are matter for equity: of common owners inter se the obligations seem to have attracted very little attention in our system. The relation of executor and beneficiary, first established in ecclesiastical Courts, is now matter for equity.

If the cases in the Institutes and Digest1 are examined, it will be seen that the writer is much put to it to explain why the obligation is quasi ex contractu. It is repeatedly said that there is no contract2 or no negotiumy sometimes treated as the same thing,3 and the passage often winds up with the absurd proposition that because there is no contract and no delict, the liability is quasi ex contractu.* The truth appears here and there in the proposition that the

action is given utilitatis causa> i.e. the schematic basis is renounced.5 But there is in all of them except negotiorum gestio a property relation arising by act of party which can reasonably be called a negotium.6 It is probable on the form of the texts that Gaius, who is the chief authority, nowhere called these obligations quasi ex contractor but,

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Institutes and Digest, called them obligationes ex variis cansarum figuris, renouncing any scientific general basis. But it is always possible that this name too is post-classical. Negotiorum gestio is an institution which is not recognised in our law with the generality it had under Justinian.1 The principle was that if A interfered in the affairs

of By without his authority, he must compensate for harm done, and account for profits received. On the other hand he could claim recoupment of any proper expenditure, and indemnification from liabilities, but only if, in the circumstances, his intervention was reasonable, i.e. the thing done was reasonable and it was, in the circumstances of urgency, reasonable for him to step in and do it. In the early Empire it was certainly much more limited, and it is generally held that only absence of the principal so justified his intervention as to give him a claim, though the counterclaim against him was of course not subject to this limitation. What was recoverable was the amount of the benefit or the cost, whichever was the less, and if the act was beneficial when it was done the fact that afterwards it came to nothing did not bar the claim.2 It was also essential, at least under Justinian, that the intervention be in the interest of the principal, i.e. not an act equally necessary for the protection of the doer's own interests, and that it should have been done in the expectation of recoupment and not donandi animo. But the history of these requirements is much controverted.

Our law contains no general rubric ofthis character.3 The governing principle is that no voluntary service can of itself give either a lien or a right of action for reimbursement.4

(1931), S.C.(H.L.)i28.

4 Falcke v. Scottish Imperial Insurance Co. (1886), 34 Ch.D. 234, 241, 248; Sorrellv. Paget, [1949] 2 All E.R. 609. If a person has, under constraint, paid money which another person was liable to pay, he can sue