Acprof 9780198719274 Appendix 1

Extracts from Gaius’s and
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Justinian’s Institutes
Translated by the author
Gaius
Institutes, book 
. Now let us move on to obligations. Of these the main division distinguishes
two species. For every obligation is born either from a contract (ex contractu) or from
a delict (ex delicto).
. And first let us look into those which are born ex contractu. This time the
division is into four genera. For the obligation is contracted either re or verbis or litteris
or consensu.
. An obligation is contracted re as, for example, by the giving of a mutuum. The
giving of a mutuum happens, properly speaking in relation to the sort of things which
are dealt in by weight, by number or by measure. Coined money is of this kind, as
also oil, corn, bronze, silver and gold. With such things, when we either count or
measure or weigh them out, we give them with the intent that they should vest in
the receiver and that any later render back to ourselves should be, not of the very
same things, but of others of the same kind. This is how mutuum gets its name,
because what is given by me to you in this way does become ex meo tuum.
. An obligation re is also incurred by one who has received something not due
from one who has paid by mistake. In fact he can be sued by the condictio, with its
pleading which says ‘if it appears that he ought at civil law to convey (si paret eum dare
oportere)’, just as though he had received a mutuum. For this reason some hold that a
pupillus or a woman to whom, without the guardian’s authority, something not due
has been given by mistake is not bound by the condictio, no more than by reason of
the giving of a mutuum. But this species of obligation does not seem to exist by
virtue of contract because he who gives with the intention of paying off a debt
(solvendi animo) has it in mind rather to undo a deal than to do one up (magis distrahere
uult negotium quam contrahere).
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
. An obligation verbis is created by question and answer, as in this way:
Dari spondes? Spondeo.
Dabis? Dabo.
Promittis? Promitto.
Fidepromittis? Fidepromitto.
Fideiubes? Fideiubeo.
Facies? Faciam.
. But this obligation verbis in the form Dari spondes? Spondeo is confined to
Roman citizens. Yet the others are ius gentium. As such they are valid between all
men, whether Roman citizens or aliens, and even if put into Greek, as in this
manner:
Doseis? Doso.
Homologeis? Homologo.
Pistei keleueis? Pistei keleuo.
Poieseis? Poieso.
These are also valid however even between Roman citizens, provided only that
they are able to understand Greek. And, vice versa, even if Latin is used the
obligations are nonetheless valid between aliens, so long as they understand Latin.
But that obligation verbis in the form Dari spondes? Spondeo is so restricted to Roman
citizens that it cannot properly be found an equivalent in Greek, even though the
verb is said to be derived from Greek.
. In this connexion it is said that in one case it is possible even for an alien to be
put under an obligation by this word, as where our emperor questions the leader of
an alien people about peace, thus: Pacem futuram spondes? Or where the question is
put to him in the same form. But this example is too clever by half since if anything
is done against the peace treaty no action ex stipulatu arises but the matter is pursued
by the law of war.
. There is a doubtful question whether, if someone . . . [Illegible lines create a
gap, and then the text relies on somewhat conjectural reconstruction through a
and part of ].
a. There are also other obligations which can be contracted by words spoken
without any question being put beforehand, as where a woman declares a dowry
either to her fiancé as a wife to be or to her husband after marriage. This applies as
much to movables as to land. And in this obligation not only can the woman herself
be bound but also her father and her debtor if at her behest he declares as dowry the
debt he owes to her. Nobody else can incur an obligation in this way. Therefore, if
anyone else does want to promise a dowry for a woman he must bind himself
according to the ordinary law. That is, he must promise in response to a stipulation
by the man.
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
. Again an obligation is contracted by unilateral speech, with a promise made to

the other without any question put, where a freedman has sworn that he will render
his patron a gift or service or labour. This, however, is the single case in which an
obligation is contracted by means of an oath. Certainly there is no other case in
which men incur obligations through oath-taking, at least so long as the inquiry is
confined to the law of the Romans. As for the question as to the law applicable
among aliens, we will find, if we look into the laws of different citizenships, that
different rules prevail from one to another.
. Suppose that the thing which we stipulate to be given (dari) is such that it
cannot be given. The stipulation is then ineffective. Examples are where one
stipulates for the giving of a free man in the belief that he is a slave or for the giving
of a dead man in the belief that he is alive or for sacred or religious land in the belief
that it is governed by human law.
a. Again, if someone stipulates for a thing which in the nature of things cannot
exist, as for instance a hippocentaur, the stipulation is equally ineffective.
. Again, if someone stipulates subject to a condition which cannot be fulfilled, as
for instance ‘on condition that he touches the sky’, the stipulation is ineffective. Yet
in the case of a legacy left under an impossible condition, our teachers hold it to be
due exactly as though left unconditionally. The supporters of the other school think
the legacy ineffective, just as with the stipulation. And it is certainly true that a
satisfactory reason can hardly be given for any distinction.
. Besides these, a stipulation is also ineffective where someone stipulates for a
thing to be given to him which, unknown to him, is his already. This is because
what belongs to a man cannot be given to him.
. Next, the stipulation is ineffective if someone stipulates for a giving in this
way: Post mortem meam dari spondes? Or in this way: Post mortem tuam dari spondes? Yet
this form of stipulation is valid: Cum moriar (when I am dying) dari spondes? So also
this: Cum morieris (when you are dying) dari spondes? The point is that these forms
have the effect of triggering the obligation during the last moments of the life of the
stipulator or promissor. For it was perceived as awkward (inelegans) to have an
obligation come first into being with the person of the heir. Moreover, we cannot
stipulate thus: Pridie quam moriar (the day before I die) or Pridie quam morieris (the day
before you die) dari spondes? For there is no way of discovering ‘the day before
someone dies’ other than by waiting for him to be dead. And then, once the death
has happened, the stipulation is pushed back into the time before. It is tantamount
to saying: Heredi meo dari spondes (Do you promise a giving to my heir)? And there is
no doubt that that is ineffective.
. What we have said of death must be taken to apply also to capitis deminutio
(status-loss).
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
. The stipulation is also ineffective where someone fails to answer to the
question put, as where I stipulate for , sesterces to be given by you and you
promise ,. Or where I stipulate absolutely, and you promise conditionally.
. Again, the stipulation is ineffective if we stipulate for a giving to someone to
whose rule we are not subject. Suppose therefore that someone stipulates for a
giving both to himself and to someone to whose rule he is not subject. There is a
question then to what extent the stipulation is valid. Our teachers hold it wholly
valid and say that the full amount is due to the stipulator alone, just as though the
outsider’s name had not been mentioned. But the supporters of the other school
think that half is due to him, and that the stipulation is ineffective so far as concerns
the other half.
a. It is a different case if I have stipulated thus: Mihi aut Titio dari spondes (Do you
promise a giving to me or Titius)? Here it is agreed that the full sum is due to me and
that I alone can bring an action on that stipulation. Yet you can discharge yourself
by paying Titius.
. Again, the stipulation is ineffective if I stipulate from one who is subject to my
rule, or he from me. In fact a slave, a person in mancipio, a daughter in power, and a
woman in manu, cannot be put under an obligation to anyone at all, let alone to a
person to whose rule they are subject.
. It is obvious that a mute cannot stipulate or promise. The same has been
accepted for the deaf, since the stipulator and the promissor ought to hear each
other’s words.
. A madman ( furiosus) cannot transact any deal at all, because he does not
understand what he is doing.
. A pupillus can properly transact every deal, subject however to his getting his
guardian’s authority where necessary, as where he himself is put under an obliga-
tion; for he can put someone else under an obligation to himself even without his
guardian’s authority.
. The law is the same for women who are under guardianship.
. But what we have said about a pupillus is properly speaking only true of one
who already has some understanding. In fact infants and those very close to infancy
scarcely differ from madmen in that pupils of that age have no understanding. But
for the sake of convenience the law in relation to such pupilli has been less drastically
interpreted.
. But we can join another person to a stipulation made by ourselves. He then
stipulates for the same performance. The common name for such a party is
‘adstipulator’.
. The action then lies for him just as well as for ourselves. And payment can as
well be made to him as to us. But he will be compelled to make over to us whatever
he obtains, this duty being enforced by the actio mandati.
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
. Moreover, the adstipulator can use words other than those which we ourselves
have used. Thus if, for example, I have put the stipulatory question in the form,
‘DARI SPONDES?’, the adstipulator can still say, ‘IDEM FIDE TUA PROMIT-
TIS?’ or ‘IDEM FIDEIUBES?’ Or vice versa.
. Again the adstipulator can demand a lesser performance. He cannot demand a
greater. Hence, if I stipulate for , sestertii he can demand ,, but he cannot
ask for more than that. Again, if I make an absolute demand, he can demand
conditionally. But not the other way about. Here ‘more’ and ‘less’ are applied not
only to quantity but also to time; for it is ‘more’ to give immediately, ‘less’ to give
after an interval of time.
. This area of law reveals some legal oddities. For the adstipulator’s heir acquires
no action. Again a slave’s adstipulation achieves nothing whereas in all other cases he
acquires a right for his owner through his stipulation. The same view has prevailed
of persons in mancipio, who are in a position equivalent to that of a slave. He who is
in the power of his father does achieve something acting as adstipulator, but he
acquires nothing for his parent even though in other cases he does acquire for him
by making a stipulation. Yet even in his own case, no action lies for him unless he
leaves his father’s power without suffering a capitis deminutio (status-loss), as by the
father’s death or by himself becoming a flamen Dialis. The same results must be taken
to apply in the case of a daughter in power or woman in manu.
. On the other side it is also usual for extra people to be obligated on behalf of
the promissor. These we call either sponsors or fidepromissors or fideiussors.
. The question to a sponsor is, Idem dari spondes? To a fidepromissor it is, Idem
fidepromittis? To a fideiussor it is, Idem fide tua esse iubes? There is a question what name
can be given to people who answer to, Idem dabis? or Idem promittis? or Idem facies?
. We often take sponsors, fidepromissors or fideiussors as a means of making sure
that we are provided with better security. On the other hand almost the only case
for using an adstipulator is where we stipulate for something to be given after our
death. For since by making such a stipulation we ourselves achieve nothing, an
adstipulator is attached so that he can sue after our death. Then, if he obtains
anything, the trial for mandatum (commission) binds him to restore it to my heir.
. The legal positions of sponsors and fidepromissors are similar; but fideiussors stand
markedly apart.
. For the first two cannot be attached to any obligations other than those verbis.
The qualification is that the obligation verbis sometimes is not binding on the actual
promissor, as where a woman or pupillus promises without the guardian’s authority
or where someone promises a giving after his own death. It is debated, however,
whether a sponsor or fidepromissor is bound if a slave or alien is principal promissor by
the word spondere.
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
a. A fideiussor, by contrast, can be added to all sorts of obligations, that is to say
whether the obligation is contracted re, verbis, litteris or consensu. Nor does it even
matter whether the principal obligation is civil or natural. It can even be a slave for
whom the guarantor by fideiussio becomes liable, and the stipulator who takes the
guarantor for the slave can be an outsider or even the slave’s own owner seeking a
guarantee of what is owed to himself.
. Next, the heir of a sponsor or fidepromissor is not bound (unless we think of an
alien fidepromissor whose civitas uses a different rule). But in the case of a fideiussor, the
heir is bound.
. Next, sponsors and fidepromissors are discharged after two years by the lex Furia;
and, whatever their number shall be at the time when it becomes possible to sue for
the money, in that many parts the obligation is shared between them and each will
be called for his share only. By contrast, fideiussors are liable without limit of time
and, whatever their number, each is obligated for the full amount. Hence, it is up to
the creditor to sue whichever he wants. However, a letter (epistula) of the deified
Hadrian now compels the creditor to sue for a share from each of them who is
solvent. The rule of this letter differs from that of the lex Furia in this: if any sponsor
or fidepromissor is insolvent his burden does not accrue to the others; with fideiussors,
however, even if only one is solvent he must carry the burden of all the others.
a. But the lex Furia applies only in Italy and the effect of this is that in other
provinces sponsors and fidepromissors are, in the same way as fideiussors, bound without
limit of time and are each under an obligation for the full amount, unless they too
derive assistance as to part from the letter of the deified Hadrian.
. The next aspect of the matter this: the lex Appuleia introduced a kind of
partnership (societas) between sponsors and fidepromissors. In fact if one of them paid
more than his share the lex established an action for him against the others in respect
of the overpayment. This lex was passed before the lex Furia, when each was under
an obligation for the full amount. The question thus arises whether the right
(beneficium) given by the lex Appuleia survives the passing of the lex Furia. There is
no doubt that outside Italy it does survive. For the lex Furia only applies in Italy,
while the lex Appuleia applies also in other provinces. But there really is room for
debate whether the Appuleian right survives in Italy too. On the other hand, to
fideiussors the lex Appuleia does not apply. Hence if a creditor obtains the whole sum
from one fideiussor the loss is his alone, at least if the principal for whom he stood
surety is insolvent. However, as is clear from what was said above, one who is sued
for the whole sum by the creditor can now plead that under the terms of the letter of
the deified Hadrian the action should be given against him only for his share.
. Next, it was provided by the lex Cicereia that someone taking sponsors or
fidepromissors should openly say so in advance and declare both the matter in respect
of which he is taking security and the number of sponsors and fidepromissors he is
about to have. And if he does not make this announcement the sponsors and
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
fidepromissors are permitted to ask within thirty days for a declaratory judgement
(praeiudicium) to answer the question whether the statutory declaration was made.
And if it is declared that it was not made they are thereby discharged. Under this
statute no mention is made of fideiussors. However the practice is to give the
statutory notice even when we take fideiussors.
. The lex Cornelia, on the other hand, introduced a control (beneficium) common
to all guarantors. By this statute it is prohibited for any person to bind himself in any
one year to any one creditor on behalf of any one debtor for a sum of ‘credited
money (creditae pecuniae)’ greater than , sesterces. Then, even if the sponsors,
fidepromissors or fideiussors have bound themselves in a full sum of, say, ,,
nevertheless their liability is limited to a maximum of ,. We define ‘credited
money’ as including not only money which we give on credit (eam quam credendi
causa damus) but also every sum which is certain to be owed at the moment at which
an obligation is contracted—that is, money which is unconditionally subjected to an
obligation of payment. Hence, if we stipulate for money to be paid on a certain day,
that sum comes within the definition, because it is certain that the money will be
owed even though the suit is postponed. Moreover the term ‘money (pecunia)’ in
this statute includes all things (omnes res). Hence, if we stipulate for wine or corn or a
farm or a slave, the statute must be applied.
. The statute does however allow unlimited guarantees in some cases, as for
dowry or for what is owed to you under a will or a guarantee given by judicial order
(iussu iudicis). And, further, the lex on estate duty at  per cent provides that the lex
Cornelia shall not apply to guarantees required under its provisions.
. Another rule common to all, that is to sponsors and fidepromissors and fideiussors,
is that they cannot incur an obligation such that they owe more than is owed by the
person for whom they take on the guarantee. And, the other way round, they can
bind themselves to owe less, as we said in relation to adstipulators. For as in the case of
the adstipulator’s right, so here the obligation of these guarantors is an addition
(accessio) to the principal obligation. And it is impossible for there to be more in the
addition than in the principal matter.
. In this next rule too, all are in the same case, namely that if they pay anything
on the principal’s behalf they have an actio mandati against him for its recovery. And,
beyond this, sponsors have an action of their own under the lex Publilia for double
recovery (duplum). That is called the actio depensi.
. An obligation is created by writing (litteris) as for example in cross-written
debts (in nominibus transcripticiis). Now a cross-written debt is something which
happens in two ways. It happens either from a thing to a person (a re in personam)
or from one person to another (a persona in personam).
. A cross-entry is made from a thing to a person when, for example, I enter as
paid out to you that which you owe me as the result of a purchase or a hiring or a
partnership.
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
. A cross-entry is made from one person to another when, for example, I enter
as paid out to you, that which Titius owes to me. That is to say, so long as Titius has
offered you to me as a substitute debtor (te pro se delegaverit mihi).
. It is a different case with the debt-entries called ‘cash-box entries’. For with
them the obligation arises re, not litteris. The reason is that they only take effect if the
money is actually paid out. The paying out of the money makes an obligation re.
And we therefore rightly assert that cash-box entries (nomina arcaria) do not create
any obligation but rather provide evidence of an obligation already created.
. It follows that it cannot correctly be said even that aliens are put under
obligations by cash-box entries, since it is not by the entry itself (non ipso nomine)
but by the payment out of the money (numeratione pecuniae) that they are obligated.
And that kind of obligation belongs to the ius gentium.
. It is a good question, by contrast, whether aliens incur obligations by cross-
written debts. For that kind of obligation is arguably ius civile. Nerva so held. Sabinus
and Cassius took the view, however, that even aliens are bound by a cross-written
debt from a thing to a person but not by a cross-writing from one person to another.
. Beyond this, an obligation appears to arise litteris through the use of cheiro-
graphs and syngraphs. That is to say, where a person writes that he owes or that he
will give, in circumstances in which no stipulatio is made on that account. That kind
of obligation is peculiar to aliens.
. Obligations are created consensu (by agreement) in emptio-venditio (sale), locatio-
conductio (hire), societas (partnership) and mandatum (commission).
. The reason why we say that in those ways the obligation is contracted consensu
is that no formality of words or writing is required but, on the contrary, it suffices
that the parties to the transaction have come to an agreement. Hence such deals can
be contracted even inter absentes, as by letter or messenger, whereas by contrast an
obligation verbis cannot be created inter absentes.
. Again, in these contracts the parties come under obligations to each other on
the basis of that which each ought to make good for the other in decency and
fairness (ex bono et aequo), whereas by contrast in obligations verbis one party
stipulates and the other party promises, and in cross-entries by the entry of the
payment out one party binds and the other is bound.
. Yet, even though an obligation verbis cannot be contracted with a person who
is absent, the entry of a payment out can be effected with a party not present.
. Emptio-venditio (sale) is contracted when agreement is reached on price. This is
so notwithstanding the fact that the price may not yet have been paid and not even
any arra may have been given. For what is given by way of arra is evidence of an
emptio-venditio already contracted.1
1
An alternative translation reads: ‘Emptio-venditio is contracted when agreement is reached
on the price. It does not matter that the price has not been paid or that no arra has even been
given. For what is given by way of arra is evidence of an emptio-venditio already contracted.’
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
. The price must, however, be definite (pretium autem certum esse debet). For, on
the other side of the line, if we come to an agreement that a thing be bought at
Titius’s valuation (ut quanti Titius rem aestimaverit, tanti sit empta), Labeo held that the
deal had no effect whatever. And Cassius approves Labeo’s opinion. Ofilius thought
that even that was emptio-venditio. And Proculus followed Ofilius’s opinion.
. Next, the price must consist in counted money ( pretium in numerata pecunia
consistere debet). There is, to be sure, a hot debate whether the price can consist in
other things, as for example whether the price of something can be a slave or a toga
or a parcel of land. Our teachers think that the price can consist in something other
than money. Hence follows their regular tenet that an exchange of things makes a
contract of emptio-venditio and is indeed the oldest form of emptio-venditio. By way of
evidence they cite the Greek poet Homer, who at one place says this:
There the long-haired Achaeans bought wine,
Some with bronze, and some with shining steel,
Some with ox-hides, some with the very oxen,
And some with slaves [Iliad, .–].
The masters of the other school disagree. They say that permutatio (barter) is one
thing and emptio-venditio is another and that it is not otherwise possible to settle the
issue, when things have been exchanged, which thing should be seen as sold and
which as given by way of price. Then, following on from there, they hold it absurd
to count each thing as both sold and given by way of price. However, Caelius
Sabinus says that if you have something on offer for sale, as for instance a farm, and
I give say a slave as its price, the farm has clearly enough been sold and the slave
given as price for the purpose of acquiring the farm.
. Locatio-conductio is formed on similar principles. Thus, if no fixed reward (certa
merces) is determined, no contract of locatio-conductio is made.
. And from this arises the question whether locatio-conductio is formed when the
reward is left to the decision of a third party, as where it is set at ‘as much as Titius’
valuation comes to’. For this reason it is a question whether a contract of locatio-
conductio comes into existence where I give clothes to a cleaner to be cleaned or
treated or to tailor for mending and I do not immediately fix any reward but instead
intend to give whatever we later agree.
. Again if I give something to you to use and in return receive from you another
thing to use, there is a question whether that amounts to a contract of locatio-
conductio.
. The closeness between emptio-venditio and locatio-conductio is such that in some
cases there is a standing debate as to which of the two contracts is made. For
example, suppose a thing is located without limit of time (in perpetuum) which
happens in relation to municipal estates, which are located on the express terms that
so long as the public ground-rent (vectigal ) is paid they will not be taken away from
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
either the conductor himself or from his heir. The prevailing view does make this
locatio-conductio.
. Next, suppose I deliver gladiators to you on the express terms that I will get 
denarii for the sweat of each one who comes off harmless but  denarii for each
one killed or maimed. Is that emptio-venditio or locatio-conductio? The prevailing view
is that there seems to be locatio-conductio of the ones who come off harmless but
emptio-venditio for those killed or maimed. Events determine one classification, as
though there is a conditional sale or hire of each one. For there is no longer any
doubt that things can be sold and hired subject to conditions.
. Again there is a question whether emptio-venditio is contracted, or rather locatio-
conductio, where I agree with a goldsmith that he will make for me from his gold
some rings of specified form and weight in return for, say,  denarii. Cassius holds
that on the one hand there is emptio-venditio of the material while on the other there
is locatio-conductio of the labour (operarum). But the view of very many jurists is that
the contract is emptio-venditio. By contrast, if I give him my gold and a reward is fixed
for the work, it is agreed that there is a contract of locatio-conductio.
. It is usual to enter partnerships either of ‘all wealth (totorum bonorum)’ or of one
line of business (alicuius negotii), as for instance in buying or selling slaves.
. There was a great question whether societas could be formed on such terms
that one party would take a larger share of the profit but a smaller share of loss.
Quintus Mucius thought that that was contrary to the nature of societas. But Servius
Sulpicius, whose view has prevailed, thought that such a partnership could be made,
even to the extreme that, in his opinion, the contract could be entered on the term
that one party should make no contribution at all to a loss but should take a share in
profit, so long as his assistance seems so valuable that it is reasonable (aequum) for him
to be admitted to the partnership subject to this agreement (hac pactione). In fact
societas can also be entered, as is now accepted, on the term that one shall and the
other shall not bring in capital, the profit nonetheless being shared. For often some
person’s support (opera) is as valuable as money.
. And this is certain, that, if nothing is agreed about the shares of profit and loss,
then both plus and minus must be shared equally. But if shares are specified in one
or other, as for example in profit, while there is silence as to the other, then the
shares on the omitted side will be the same as specified on the other.
. The societas continues to exist just so long as the parties remain of the same
mind. But if one party renounces, the partnership is dissolved. Yet it is clear that if
the renunciation is made in order to secure some approaching profit exclusively for
himself, the party will be compelled to share that profit. Take, for example, the case
where my partner of ‘all wealth’ is left heir to some other person and then renounces
the partnership to take the profit of the inheritance solely for himself. On the other
hand, if some profit comes to him other than the one which he snatched at then that
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
goes to him alone. On my side, though, anything at all acquired after his renunci-
ation of the partnership is attributed to me.
. Societas is also dissolved by the death of a partner, because one who makes a
contract of partnership chooses for himself a particular person (certam personam).
. It is said that societas is also dissolved by status-loss (capitis deminutio), on the
ground that according to the reason of the civil law (civili ratione) status-loss is made
equivalent to death. Yet the truth is that, if the parties still maintain the intention to
be partners, a new partnership is understood to be set in train.
. Again, if the goods of a partner are sold up by the state or by ordinary creditors,
the partnership is dissolved. Yet this societas of which we are speaking (i.e. that which
is contracted by mere agreement) is part of the ius gentium. It operates by virtue of
common sense (naturali ratione) among all men.
a. There is, however, another genus of societas peculiar to Roman citizens. For
in former times it was the case that when a paterfamilias died there arose among his
immediate heirs (sui heredes) a kind of partnership which was at once statutory and
natural. This was called ercto non cito, which is ‘ownership undivided’. For erctum
means ownership (dominium), whence erus is a word for ‘owner’. And ciere, on the
other hand, means ‘to divide’, whence also caedere (to strike) and secare (to cut).
b. Other people also, if they wanted to have this same societas, could achieve
it before the praetor by means of a set form of words (certa legis actio). In this part-
nership between brothers or between other people entering a partnership in
imitation of brothers (ad exemplum fratrum suorum), a special feature was that even
one of the partners could by manumission free a jointly-owned slave and acquire
him as a freedman of all of them, or again that one partner by mancipating a jointly
owned asset could transfer the property in it to the person taking through mancipatio.
. Mandatum occurs when we give a commission, whether in our own interest or
in the interest of another (sive nostra gratia . . . sive aliena). And, so, whether I commis-
sion you to do my business or someone else’s business the obligation of mandate is
contracted, and we will be bound to one another in that which in good faith I ought
to do for you or you for me.
. Now if I give you a commission on your own account (tua gratia) the mandate
is quite without effect (supervacuum). For in respect of anything you are inclined to
do on your own account you should rely on your own decision and not on my
commission. And so if you have idle money at home and I exhort you to lend it out
you will not have an action of mandate against me even if you lend it out as a
mutuum to someone from whom you cannot get it back. Again, if I have encouraged
you to buy something I will not be liable in an actio mandati even if it turns out to
have been a bad bargain for you. This is carried to the length of raising a question
whether a man is liable to the action of mandate if he commissions you to lend to
Titius. Servius said not. In his view no obligation could arise in this case any more
than in the case of a general mandate to lend out money. But we follow Sabinus’s
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
contrary opinion based on the fact that you would not have selected Titius to give
credit to, had it not been for the mandate given to you.
. It is agreed that if someone gives a mandate for a performance which is contra
bonos mores (against good standards of behaviour), no obligation is contracted, as for
example if I commissioned you to commit a theft or a wrongful contempt (iniuria).
. Again, if someone gives a mandate to me for something to be done after my
death, the mandate is ineffective, on the ground of the general rule laid down that
an obligation cannot begin in the person of the heir.
. Also, even a mandate properly contracted dissolves if revoked before there has
been any action in reliance about it.
. Again, if one of the parties, whether the one who gave the mandate or the one
who accepted it, dies before the mandate has been acted upon, the contract is
dissolved. But for policy reasons (utilitatis causa) it has been accepted that if the
person who gives me a mandate dies and I nevertheless perform the mandate in
ignorance of his death, I can bring the actio mandati. Otherwise a just and demon-
strable want of knowledge would cause me loss. This conclusion is similar to that in
which, as many hold, a debtor is discharged by paying my cashier after and in
ignorance of the latter’s manumission. There, the strict logic of the law cannot
explain this discharge since he has paid someone other than the person whom he
was bound to pay.
. If I give a mandate to someone and he exceeds the terms of the commission,
I have an action of mandate against him to the extent that I have an interest in his
performance of the commission, provided only that it was possible for him to fulfil
it. But he cannot bring any action against me. Thus, if I have mandated you to, say,
buy a farm for me for , sesterces and you have bought it for ,, you will
have no action of mandate against me, even though you are willing to let me have
the farm at the sum at which I mandated you to buy. Sabinus and Cassius were very
strongly of that opinion. On the other hand, if you have bought for a lesser sum you
will certainly have an action against me because one who commissions a purchase at
, is obviously understood to commission a purchase for less if it be possible.
. In conclusion we should note that whenever I give something to be done gratis
in circumstances in which if I had fixed a reward a contract of locatio-conductio would
have been made, then in those circumstances the action of mandate lies. Take, for
example, the case in which I have given clothes to a cleaner for cleaning or some
other treatment or to a tailor for mending.
. That completes the exposition of the genera of obligation which arise from
contract (quae ex contractu nascuntur). We must now take note that there is acquisition
for us (adquiri nobis) not only through our own selves but also through those persons
in our potestas (paternal power), manus (matrimonial power), or mancipium (patri-
monial power).
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
. There is also acquisition for us through free men and through slaves belonging
to other people when possessed in good faith by us. But this occurs only in two
cases. Those are, where they acquire ex operis suis (through their own labour) or ex re
nostra (through our capital).
. There is acquisition for us under the same two heads in the case in which we
have a usufruct in a slave.
. Now take the case of one who has the nudum ius Quiritium (bare Quiritary
title, empty Quiritary title) in a slave. Even though he is ‘owner’ (dominus), yet he is
understood as having less right in the thing even than the usufructuary or bona fide
possessor. For it is the rule that there is no case in which the rights accrue to him. To
such a length is this taken that some hold that, even if a slave expressly names him as
the beneficiary of a stipulation or mancipation, still nothing is acquired for him.
. There is no doubt that a slave in joint ownership acquires for his owners in the
proportions of their ownership. The exception is that if he names one owner as the
beneficiary of the stipulation or the mancipation he acquires solely for that named
owner. As where he stipulates in these words: ‘Do you promise (spondes) convey-
ance to Titius my owner (dominus)?’ or takes my mancipation with this declaration:
‘I say that this res belongs by Quiritary title to Lucius Titius, my dominus, and let it be
bought for him with this bronze and these bronze scales (Hanc rem ex iure Quiritium
Lucii Titii domini mei esse aio, eaque ei empta esto hoc aere aeneaque libra)’.
a. This is a question: does the consequence which flows from naming one
dominus also flow from a iussum (authority) given by one of the domini? Our teachers
hold that an owner who gives a iussum becomes entitled exclusively in exactly the
same way as where an owner is expressly named as the beneficiary of a stipulation by
the slave or a mancipation to the slave. But the authorities of the other school hold
that the entitlement accrues to each of them exactly as though no iussum had been
given by any one of them.
. An obligation is discharged immediately by the performance (solutione) of that
which is owed. From this there arises a question. If something else is given instead
with the consent of the creditor, is the debtor freed by automatic operation of law
(ipso iure) as our authorities hold? Or, does he remain technically subject to the
obligation at law with the effect that he must defend himself by an exceptio doli mali
(defence of fraud) in the event of his being sued, which is the analysis of the
authorities of the other school.
. An obligation is also discharged by ‘verbal release (acceptilatio)’. ‘Verbal release’
is essentially an imaginary performance (solutio). Suppose that I owe you something
under an obligation verbis, and you want to let me off. It can be done by your
allowing me to make this declaration: ‘That which I promised to you, do you hold
it in receipt (habesne acceptum)?’ And then your answering, ‘I do so hold it.’
. By this means, as we have said, obligations verbis are discharged. But the rest
are not. For there seemed to be a proper congruency in the rule that an obligation
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
created verbis should be capable of being dissolved verbis. However, it is possible to

reduce anything owed on another basis into the form of a stipulation and then to
effect a verbal release.
. Though an acceptilatio is an imaginary performance (solutio) yet a woman
cannot effect an acceptilatio without her guardian’s authority, albeit she can accept
an actual performance without his authority.
. There is a question whether given that there can be partial discharge by partial
performance of what is owed, there can also be an acceptilatio limited to part.
. There is another species of imaginary performance. This is discharge per aes et
libram (by bronze and scales). This too has been recognised only for certain cases, as
where something is owing as a result of a transaction per aes et libram or under a
judgement.
. In the presence of no less than five witnesses and a libripens (scale-holder), the
person being freed must make this declaration: ‘Whereas I have been condemned to
pay you such and such a sum of sestertii, with this bronze and these scales I now loose
and free myself from you in that matter (me eo nomine a te solvo liberoque hoc aere
aeneaque libra). I weigh out this pound for you as first and last, in accordance with the
public statute.’ Next he strikes the scales with the bronze piece and gives it to the
person from whom he is obtaining the release, as though thereby making his
performance (veluti solvendi causa).
. In the same way a legatee releases an heir from payment of a legacy constituted
per damnationem. There is then this variation. Whereas the judgement-debtor
signifies that he has been condemned (condemnatus) the heir declares that he has
been ‘by will doomed’ (testamento damnatus). However, an heir can only be freed in
this way from legacies of things reckoned by weight or number and then only when
their quantum is fixed. Some hold that the same extends also to things handled by
measure.
. The next way in which an obligation is discharged is novation (novatio), as
where I take a stipulation from Titius for what you owe me. For with the inter-
vention of a new person a new obligation arises and the old is discharged, merged
into the new. This can go very far, as where it happens that the new stipulation is
ineffective but nevertheless discharges the old one by novation: for example, where
I stipulate from Titius that what you owe me will be given to me after his death or
where I take such a stipulation from a woman or pupillus without the authority of
their guardian. In such a case I lose out. The earlier debtor is released, and the later
obligation is void. A different legal conclusion follows if I take the stipulation from a
slave. Then the earlier obligation subsists just as though I had later taken a stipulation
from no person at all.
. Suppose it is the same person to whom I return with a later stipulation. In that
case a novation only happens if something new is added in the later stipulation, as
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
for instance where a condition or a time or a guarantor (sponsor) is either added or

removed.
. Yet what we have said about a sponsor is doubtful, because the authorities of
the other school hold that the addition or removal of a sponsor does nothing to
work a novation.
. And what we have said about novation occurring if a condition is added is to
be understood as meaning that it happens if the condition is fulfilled. On the other
hand, if it fails the earlier obligation survives. But the question must be put whether
one who sues on it should not be defeated by a defence of fraud or of contrary
agreement (exceptione doli mali aut pacti conventi). For the parties’ intention would
seem to have been that the claim should arise only if the condition of the later
stipulation was fulfilled. The opinion of Servius Sulpicius was that there was an
immediate novation even while the condition remained unfulfilled and, further,
that if the condition failed no action could be brought on either ground, so that the
matter was in that way lost. Following the same line, he gave a responsum that
someone who stipulated from a slave for payment of what was owed to him by
Lucius Titius did effect a novation and thus incur a loss, since no action can be
brought against a slave. However, in both cases we employ a different rule; there is
no more a novation here than if I stipulate from an alien for that which you owe me
and, when he is outside the number of those people who share the word spondere,
I put the question in the form ‘spondes?’
. Next, an obligation is discharged by joinder of issue (litis contestatio), so long as
the suit was through a iudicium legitimum (statutory trial). For in such a case the
original obligation is discharged, and the defendant begins to be bound instead by
the litis contestatio. Then, if he is condemned the litis contestatio is displaced and he
begins to be bound on the basis of the judgement. This is the key to the writing of
the old jurists to the effect that before litis contestatio the debtor ought to give; after
litis contestatio he ought to be condemned; after condemnation he ought to satisfy the
judgement.
. It follows from this that, if I sue for what is owed to me through a iudicium
legitimum, thereafter automatically (ipso iure) I cannot sue again for that matter, since
my intentio will maintain in vain that he ought-at-civil-law to give. For with litis
contestatio he ceased to be under that duty. It is different if I sue through a iudicium
imperio continens (a trial based on magistral power). For there the obligation survives,
and I can as a matter of technical law maintain another action later. But then
I should be defeated by the defence that the matter has been decided or carried to
trial (exceptio rei iudicatae vel in iudicium deductae). The difference between iudicia
legitima and iudicia imperio continentia will be considered in the next book.
. Let us now cross over to the obligations which arise from delict, as where
someone has committed a theft, has seized goods, has inflicted a loss, or has been
guilty of a contempt-iniuria. There is only one genus of obligation arising from these
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
types of conduct. By contrast, as we have set out above, obligations from contract
divide into four genera.
. But within theft ( furtum) there are four genera according to Servius Sulpicius
and Masurius Sabinus, namely; manifest theft, non-manifest theft, theft by receiving
and theft by planting (manifestum, nec manifestum, conceptum, oblatum). According to
Labeo there are two genera, namely manifest and non-manifest, since the others,
receiving and planting, are really species of action emanating from theft rather than
genera of theft. That certainly seems nearer the truth as will appear from the
discussion below.
. Manifest theft is, some have said, that which happens when the thief is seized
while he is in the act (dum fit). Others, however, have gone further saying that it is
enough that he is seized in the place of the theft (ubi fit); as for instance, if there is a
theft of olives from a grove or grapes from a vineyard, the manifest stage would last
so long as the thief remains in that grove or that vineyard, or, in the case of theft
from a house, so long as he remains in that house. Others have gone even further
and have said that the manifest stage lasts even so long as the thief is carrying the
thing to the place to which he planned to take it (donec perferret). Yet others have
gone even beyond this, making the theft manifest if and whenever the thief is seen
carrying the thing (quandoque rem tenens). But this last opinion has been rejected.
And the opinion of those who thought the theft manifest if the thief was seized
while carrying the thing to the predetermined place (donec perferret) has also been
disapproved, for the reason that it admits of a great doubt whether the test applies
for only one day or for a number of days. This is an important issue since it is often
the case that thieves intend to carry stolen goods from the district (civitas) of the theft
to another district or province. Of the two other positions reported above each has
its supporters, but most authorities incline to the second (i.e. ubi fit).
. The definition of non-manifest theft can be inferred from what we have just
said, since that which does not qualify as manifest is non-manifest.
. Theft by receiving ( furtum conceptum) is said to happen where a stolen thing is
found with someone (apud aliquem) after a search in the presence of witnesses. For
against such a person a special action is provided even though he may not be a thief.
And the name of the action is actio furti concepti (action of theft-having-been-
received).
. Theft by planting ( furtum oblatum) is said to happen where a stolen res is
brought to you by someone and is received in by you, so long of course as there
is the intention that it be taken in by you rather than by him who gave it to you. For
a special action is provided for you, the receiver, against him, the planter, even
though he may not be the thief. And the name of the action is actio furti oblati (action
of theft-having-been-brought-in).
. There is also an actio furti prohibiti (action of theft-having-been-prohibited)
against a man who prevents one who wants to conduct a search from doing so.
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
[Note on translation of furtum conceptum. In this translation the verb concipere is taken
in the sense of ‘receive in’, ‘take in’. It is more usually (cf. Zulueta, .) made
to refer to the act of seizing done by the finder in his search, i.e. the con-capere is of
the finder not of the person made liable. It is certainly true that . is easier
to translate if the planter’s intention is that the res be ‘found on your premises’:
apud te . . . conciperetur. The translation above supposes that the planter must intend
to find the thing a home with the receiver rather than with himself, i.e. the focus of
the intention is his desire to keep his own premises clear.]
. The penalty for manifest theft was capital under the Twelve Tables; that is, a
free man was flogged and assigned to the victim of this theft—it was a question
among the old jurists whether he was made a slave by such assignment or was put in
the position of an adiudicatus (a judgement debtor)—while a slave was similarly
flogged and then despatched. But later the severity of this punishment was disap-
proved and an action for quadruple damages was set up by the praetor’s edict.
. For non-manifest theft the Twelve Tables appointed a penalty of double
damages, which the praetor also retains.
. The Twelve Tables had a threefold penalty for furtum conceptum and furtum
oblatum, and the praetor also retains those.
. For furtum prohibitum the praetor introduced a quadruple penalty. Statute
never provided any penalty under that head. It only provides that anyone wishing
to conduct a search should so do naked save for a licium and should hold a dish (lanx).
Under these conditions the statutory provision is that if the searcher finds something
the theft is manifest.
. There has been a question as to what a licium is. But the truth appears to be that
it is a species of clothing to cover the private parts. All of which is wholly ridiculous.
For anyone who wants to prevent a search will no less prevent a naked searcher than
one who keeps his clothes on, all the more so if finding by a naked searcher leads to
a higher penalty being imposed. Next, as between competing reasons for the lanx,
either to keep the hands occupied to prevent planting or to receive the res when
found, neither fits the case of a thing of such a kind or size as to be impossible either
to plant or to put in the dish. At least no question is raised whether to satisfy the
statute the lanx must be of some special material.
. As a result of this provision that the theft is manifest in such a case there are
writers who hold that there can be furtum manifestum either lege (by statute) or natura
(by nature), statutory manifestness consisting in this case, natural manifestness in the
case discussed earlier. But it is more true to say that there can only be natural
manifest theft. For statute cannot make a thief who is non-manifest into a thief
manifest, no more than it can make a person into a thief when he is not a thief at all
or can turn someone into an adulterer or a murderer who is not an adulterer and not
a murderer. What statute certainly can do is to make someone subject to the very
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
same penalty as if he had committed theft, adultery or murder even in a case in

which in fact he committed none of these.
. Furtum is committed not only when someone takes away a res belonging to
another for the sake of having it for himself (non solum cum quis intercipiendi causa rem
alienam amovet) but, taking the matter at its full width (generaliter), when someone
handles something belonging to another without the owner’s consent (cum quis rem
alienam invito domino contrectat).
. And so if someone uses a thing which has been deposited with him he
commits furtum. Again if one borrows a thing for use and then transfers it to some
other use one incurs the obligation from theft, as where one borrows silver with a
view to entertaining friends to dinner and then takes it on a journey to another
place, or where one borrows a horse for riding and takes it further, a point made by
the old jurists in the case of one who took a borrowed horse into battle.
. It has been decided, however, that those who use borrowed things for
different purposes only commit theft if they know that they are doing it without
the owner’s consent and that he, if he knew, would not consent. But if they believe
he would consent, they are outside the scope of a charge of theft. And this is
certainly an excellent distinction because theft cannot be committed without
wicked intent ( furtum sine dolo malo non committitur).
. But even if someone does think he is handling goods without their owner’s
consent, when in fact the owner happens to want him to do so, it is said that no theft
is committed. Hence this problem: Titius approaches my slave to get him to remove
goods of mine and take them to him. The slave tells me. Wanting to catch Titius in
the very act of committing the delict, I permit the slave to take some things to him.
Is Titius liable for theft or servi corruptio (corruption of a slave) or neither? The
question has elicited this responsum: he is liable for neither, not for theft because it
was not without my consent that he handled the res and not for corruption of the
slave because the slave was not made worse.
. Sometimes there can be theft even of free people, as of our children in power,
a wife in manu, a judgement-debtor, or a bonded gladiator.
. And sometimes a man can steal his own goods, as where a debtor removes the
res given to a creditor as a pledge, or if I carry off from a bona fide possessor a thing of
mine which he is holding. Whence it is held to follow that if one’s own slave returns
to one from someone who was holding him as a bona fide possessor then, if one hides
him away, one commits theft.
. Then there is an opposite case, where it is allowed to seize and usucapt some-
one else’s goods without it being held that theft is committed, as for instance—but
only in a case where there is no heres necessarius (automatic heir)—by taking estate
goods of which the heir has not yet obtained. If there is a heres necessarius this usucapio
pro herede is excluded. Again, a debtor who has parted with a res through a fiduciary
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
mancipation or cession-at-law in the way discussed in our earlier book can possess
and usucapt it without committing theft.
. Sometimes someone comes under a liability to the actio furti without himself
committing theft. Such a person is one by whose ‘help or plan’ (ope consilio) a theft is
committed. In the number of such people fall: one who strikes coins from your
hand so that another can get then, or obstructs you so that another can remove
something from you, or one who chases off your sheep or cattle so that another may
take them. The example used by the older jurists in their writing was driving off a
herd with a red rag. But if something is done like this for fun and not to have a theft
committed ( per lasciviam et non data opera ut furtum committeretur) the question is
whether an actio utilis should be given since the lex Aquilia, which was passed to deal
with economic loss (de damno), penalises even non-intentional fault (culpa).
. The action of theft lies for someone with an interest in the safety of the thing
even though not necessarily its owner. By the same token it does not even lie to the
owner if he has no such interest.
. Whence it is agreed that a pledge-creditor can have the action of theft for a
pledge removed, even to the extent that if it is removed by the owner himself, that
is to say by the debtor, still the action of theft lies for the creditor.
. Again if a cleaner receives clothes for cleaning at a fixed price or giving them
some other treatment, or if a tailor takes in clothes to be mended, loss of them by
theft gives the cleaner or tailor the action of theft and not the dominus. The reason is
that here the owner has no interest in their not being lost, since the trial under locatio
(hire) will allow him to recover fully from the cleaner or the tailor, so long as the
cleaner or tailor have sufficient means to make good the value of his property. If
they are insolvent the owner, unable to recover from them, can maintain the actio
furti, since on these facts the owner again does have an interest in the safety of his res.
. What we have said about cleaners and tailors applies also to borrowers-for-use
(ad eum cui rem commodavimus). For as the former must guarantee safe-keeping
(custodiam praestare) by reason of receiving for a reward, so here the borrower must
do so by reason of the advantage which accrues to him in the user of the thing.
. But a depositee does not guarantee safe-keeping and is only liable if he himself
does something dolo malo (with wicked intent). Hence if the res is removed from
him, the actio depositi will not make him liable on such facts for restoration of it, with
the further consequence that the interest in the thing’s security does not attach to
him. It follows that the depositee cannot use the actio furti and the owner can.
. Finally we must notice that it has been a question whether a young person
(impubes) commits theft by removing another’s property. Most hold that, since theft
is based on intention, an impubes can only be under an obligation from this wrong if
he is very near to puberty and on that account able to understand that he is doing
wrong.
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
. Someone who seizes goods of another is also liable for theft. For who more
obviously handles another’s goods without his consent than one who seizes them
with force? Hence it is rightly said that such a man is disgraceful even among thieves
(improbum furem). But for this delict the praetor has introduced a special action
whose name is actio vi bonorum raptorum (action of goods violently seized). It lies
within a year for quadruple damages, thereafter for single damages. This action is
capable of being used even where one res is seized, however small.
. The action for wrongful loss is established by the lex Aquilia. That lex provides
by section  that, if someone wrongfully kills someone else’s slave, male or female,
or quadruped within the category of pecus (cattle), he is to be condemned to pay the
owner the value of that thing at its highest in the preceding year.
. A person is understood to kill wrongfully (iniuria = lit. ‘by a wrong’) when the
death happens by his evil intent (dolus) or fault (culpa). There is no other statute
which sanctions loss caused without wrongfulness (damnum quod sine iniuria datur).
Hence no liability is imposed on one who inflicts loss without fault (culpa) or evil
intent (dolus malus) but by some accident (casu).
. In the action under this lex the valuation is made not only of the body but also
of any extra loss which the owner suffers by the death of his slave over and above his
price, as where my slave, instituted heir by someone, is killed before he enters on the
inheritance with my authority. There the valuation is not only of his price but also
of the inheritance which has been lost. Again, suppose one of a pair of twins or of a
team of actors or musicians is killed. The valuation is made not only of the one who
has been killed but also, in addition, of the depreciation of the survivors. The same
applies where one of a pair of mules or a team of horses is killed.
. When someone’s slave is killed, the owner has a free choice whether to make
the killer the object of a criminal and capital charge or to pursue the remedy for loss
under this lex.
. When the lex says ‘the value of the thing at its highest in that year’, the effect is
that, if a lame or one-eyed slave is killed who in that year was once whole, the
valuation must proceed not as at the date of his death but as at the time in the year
when his value was highest. From him it happens that sometimes one recovers more
than one has suffered loss.
. The second section of the lex provides an action against an adstipulator who
discharges a debt in fraud of the stipulator, and it gives the action for the value in
money of that matter.
. It is obvious that this part of the lex is also about loss (damnum) and was
introduced on that account, but the provision was not necessary because the action
on mandate suffices for that purpose, unless one wants the doubling of damages
which the lex allows in case of one who denies liability.
. The third section provides for all other loss. Hence, if someone wounds a slave
or quadruped in the category of pecus (cattle), or if someone wounds or kills a non-
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
pecus quadruped, such as a dog or a wild beast like a lion, an action lies under this
section. In respect of all other animals and all inanimate things, loss wrongfully
caused is remedied under this section. For the section establishes a remedy for
anything ustum, fractum or ruptum (burnt, broken, burst). In fact the word rumpere
(ruptum) would have covered all these cases. For by ‘ruptum’ is understood any type
of corruption. Whence the word includes not only burning and breaking but also
tearing, bruising, spilling, and any kind of vitiation or destruction or deterioration.
. By this section the award is not the value in that year but the value in the
nearest thirty days (in diebus triginta proximis). That is what the person causing the loss
must pay. Note that the word ‘plurimi’ is not present. Some have therefore thought
that the judge was free to make his valuation at the time in the thirty days when the
res was at its highest value or when it stood lower. But Sabinus held that the word
plurimi was to be implied into that part just as though it had been expressly added,
the legislator having been content to make express mention of it only in the first
section.
. On the other hand it has been decided that the action on this statute lies only
where someone has caused loss by his own bodily force (‘corpore suo’). Hence where
loss is caused in another mode actiones utiles (policy-actions) are given, as where
someone shuts up a slave or beast and starves them to death; or drives a beast of
burden so hard as to cause it to damage itself; or, again, persuades another’s slave to
climb a tree to go down a well so that in going up or down he falls and is killed or
injured in some part of his body; or, again, if someone pushes another’s slave off a
bridge or river bank and he drowns (though here it would not be difficult to say that
he inflicts the loss corpore suo, in that he pushed).
. Contempt-iniuria is committed not only when someone is struck with a fist or,
say, a stick, or when he is even flogged; but also when a convicium (a verbal abuse) is
offered to someone; or where a person advertises someone’s goods for a debtor’s
selling up, knowing that he owes him nothing; or when someone writes a book or a
poem to bring infamy on another; or where someone hangs about after a lady or
a youth; and in short many other ways.
. We are understood to suffer contempt-iniuria not only in our own selves but
also through our children in our power and through our wives. Hence, if you
commit a contempt-iniuria to my daughter who is married to Titius you will be
exposed to actions for contempt-iniuria not only on her account but also on mine
and on his.
. No contempt-iniuria is understood to be committed to a slave, but only to his
dominus through him. However, the same things done to our children or wives
which cause us to suffer contempt-iniuria do not have that effect when done to
slaves, but only acts which are of an aggravated kind, which are clearly in contempt
of the owner as the law sees them, as where one man flogs another’s slave. And for
this case a formula is proposed in the edict. But if someone offers a slave a convicium
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
(verbal offence) or strikes him with a fist, no pattern formula is provided and none is
likely to be given to one who rashly seeks such a remedy.
. The penalty for iniuriae under the Twelve Tables was: for membrum ruptum,
retaliation; for os fractum aut collisum,  asses for a free man, and  asses for a slave;
for all other iniuriae,  asses was the penalty established. And it seemed in those
times of great poverty that those pecuniary penalties were sufficient.
. But now the law we use is different. The praetor allows us to put our own
value on the iniuria, and then the judge condemns either for the sum which we have
fixed or for less, as seems right to him. But since the praetor customarily sets the
value of aggravated iniuriae himself, if once he has set the sum for bail (vadimonium)
we then put the same sum in our formula as the taxatio [the clause specifying the
maximum], the iudex, though he can go lower, will generally out of respect for the
praetor’s authority not be so bold as to reduce the condemnation below that figure.
. Aggravated contempt-iniuria are so qualified either ex facto, as where someone
is wounded by someone or beaten up or struck with clubs, or ex loco, as where
the contempt-iniuria is committed in the theatre or in the forum, or ex persona, as
where a magistrate is the victim or a senator suffers a contempt-iniuria from a
commoner (ab humili persona).
Justinian
Institutes, ..
The next division puts obligations into four species: aut enim ex contractu sunt aut quasi
ex contractu aut ex maleficio aut quasi ex maleficio (for they are either from contract or
quasi from contract or from wrongdoing or quasi from wrongdoing).
Institutes, .: On Obligations Quasi ex Contractu

We have finished examining the types of contract. Let us turn to those obligations
which cannot properly be said to arise from a contract but which can however, in
that they do not owe their substance to a delict, be understood as arising quasi ex
contractu.
. Thus, when someone intervenes in the affairs of another when he is away
(absentis negotia gesserit) actions arise in each direction between them called the
actiones negotiorum gestorum (the actions for intervention in another’s affairs). The
person to whom the affair belongs (dominus rei gestae) has the direct action, and the
intervener (gestor) has the counter action for intervention. It is obvious that these
actions do not properly arise from any contract. For they come into being in the
very case in which anyone puts himself forward to conduct another’s affairs without
being given any mandate to do it. It follows that those whose business is done come
under an obligation even when unaware of what is happening (etiam ignorantes). And
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
this was established as good public policy (utilitatis causa) to stop the affairs of the
absent running to ruin if some sudden urgency drove them to leave without entrus-
ting to someone the management of their interests. Certainly nobody would look
after them without an action to recover his outlay. But, just as an intervener who
has usefully conducted the business holds the other to whom it belongs under an
obligation to him, so vice versa he himself must also render an account of his
management. And for that case he is obliged to answer to the highest standard of
diligence (ad exactissimam diligentiam). And it is not enough for him to show such
attention as he usually shows in his own affairs if it happens that another more
attentive person would have conducted the intervention more successfully.
. Furthermore guardians made liable in the trial arising from guardianship also
cannot properly be understood as coming under an obligation by virtue of contract
(for there is no deal at all contracted between guardian and ward). But, since a
guardian’s liability is certainly not delictual, he is taken to become liable quasi ex
contractu. Here too the actions are reciprocal. For not only does a ward have the
action on guardianship (actio tutelae) against his guardian, but also the guardian from
the other side has the counter-action on guardianship against the ward for the case
in which he has spent anything in the ward’s interest or incurred an obligation for
him or charged his own property to the ward’s creditor.
. Again if some asset is shared between people who have not agreed to be partners
(sine societate), as where it is bequeathed or given to them both equally, each is liable
to the other in the action for division of shared property (actio communi dividundo) as,
say, because he alone took the fruits of the thing or because his socius bore the
burden of necessary expenditure upon it. This obligation cannot be understood as
properly deriving from contract in that no terms are agreed between them. Yet, in
that the liability does not come from delict, it seems to arise quasi ex contractu.
. The same legal analysis applies where someone comes under an obligation to a
co-heir on similar grounds in the action for division of an inheritance (actio familiae
erciscundae).
. An heir also cannot be understood as incurring a properly contractual obligation
to pay legacies. For the legatee cannot rightly be described as having concluded any
deal either with the heir or with the deceased. But because his obligation is not born
of wrongdoing his debt is understood to arise quasi ex contractu.
. Again the person to whom a payment which is not due is mistakenly made is
taken to incur a debt quasi ex contractu. To such an extent it is true that he does not
properly come under a contractual obligation that if we stuck to a more logical
analysis we might rather say, as was mentioned earlier, that his obligation arises
ex distractu, not ex contractu [from discharge rather than from contract—but the
word-play cannot be reproduced in English: ‘from un-contract rather than con-
tract’]. For one who gives money with the intention of performing a duty appears to
give it for this purpose, namely to untie rather than to tie up a transaction. Yet
EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES 
despite this the recipient comes under an obligation just as though a loan (mutuum)
had been given to him. Which is why the condictio lies against him.
. In some cases it is not possible to recover a payment mistakenly made when not
due. Thus the older jurists made it a maxim that wherever denial doubled liability
(ex quibus causis infitiando lis crescit) in those cases there would be no recovery of what
was paid when not owed, as for instance under the lex Aquilia and under legacy. But
those older jurists applied this to only those legacies which were left to someone in
exact certainty by the imposition of an obligation on the heir (quae certa constitute per
damnationem cuicumque fuerunt legata). However, our enactment has made all legacies
and trusts by will into one kind and has applied this increase of liability to all such
legacies and trusts but not in respect of all recipients. The rule now applies only
where the legacy or trust is to holy churches or other sacred places endowed for the
sake of religion and piety. Such gifts once paid cannot be recovered if they turn out
not to have been due.
Institutes, .: On Obligations Arising Quasi ex Delicto

If a judge ‘makes a case his own’ (si iudex litem suam fecerit) he does not appear to
come under an obligation which is properly ex maleficio (from wrongdoing). But his
obligation is also not contractual and he is certainly seen to have incurred some
blame even though want of knowledge (et utique peccasse aliquid intellegitur licet per
imprudentiam). For those reasons he seems to become liable as though from wrong-
doing. And he will have to bear such penalty as the conscience of the court deems
fair on the facts of his case.
. Again if something is thrown down or poured down from a dwelling in such a
way as to harm someone, the person whose dwelling it is, whether he owns it, hires
it or lives there free, is taken to come under an obligation as though from wrong-
doing. And the reason why he is not properly said to incur an obligation as though
from wrongdoing is that frequently his liability arises from the fault (culpa) of
someone else, perhaps of a slave or a child. Similar to his case is that of the man
who, in a place where people commonly pass, has something placed or hung in such
a way that if it fell it could harm someone. For that case a penalty of ten aurei is laid
down. On the other hand for something thrown or poured an action is given for
double the value of the loss caused, while in the case of a freeman there is a penalty
of fifty aurei if he is killed and an action for as much as seems fair to the judge on the
facts if he survives but is injured. And the judge should take into account the fees
paid to a doctor and all the other expenses of the cure as well as the earnings lost or
to be lost because of the faculty which has been impaired.
. If a son in power lives separately from his paterfamilias and something is thrown or
poured from his dwelling or he has something placed or hung so as to be dangerous
if it falls, Julian held that there is no action maintainable against the father but that
the suit must be brought against the filiusfamilias himself. The same applies in the
case of a filius who is a judge and makes the case his own.
 EXTRACTS FROM GAIUS ’ S AND JUSTINIAN ’ S INSTITUTES
. Again where any fraud or theft is committed in a ship, inn or stable the owner
running the business (exercitor) comes under a liability quasi ex maleficio, so long as the
maleficium is in fact not his own but that of one of the people through whose labour
he manages the ship, inn or stable. The reason this is quasi ex maleficio is that the
action given against him for this case is not based on contract and yet he is to a
certain degree blameworthy in relying on the service of bad men. The action for
these cases is in factum and is available to the heir of the person to whom the claim
accrues but not against the heir of the person against whom it accrues.

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Extracts from Gaius’s and

. An obligation verbis is created by question and answer, as in this way:

. Again an obligation is contracted by unilateral speech, with a promise made to

created verbis should be capable of being dissolved verbis. However, it is possible to

for instance where a condition or a time or a guarantor (sponsor) is either added or

same penalty as if he had committed theft, adultery or murder even in a case in

Institutes, .: On Obligations Quasi ex Contractu

Institutes, .: On Obligations Arising Quasi ex Delicto

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