IX.

The gestor must observe all due care in the per- CHAP. formance of the business in hand'. If it be a case in which he intermeddles without any urgent ne- Gestor, how cessity he will be bound ad diligentiam exactissi- liable. mam, and therefore is liable for culpa levissima; but if he be led to it by the extreme necessity of the case and the probable loss of the dominus negotiorum, he will only then be liable for dolus and culpa lata2; and if the gestor venture to do anything contrary to the usual custom and mode of business of the dominus, or involving more than ordinary risk, he will even be liable for casus3. The gestor must finally render an exact account to the dominus. On the other hand, the dominus negotiorum must repay the gestor all expenses with interest, and take upon himself all liabilities and costs where he has rightly conducted the negotium. If one should undertake the business of a madman, or even make a mistake as to the person whose affairs he was managing, the contract would nevertheless be valid; as if I suppose I am transacting the business of Titius, and it turns out to be that of Sempronius". If the business have been rightly commenced and carried on, the gestor will not be liable for casus".

The actions in this case are directa and con- Actions. traria. Directa, on behalf of the dominus negotiorum against the gestor and his heredes to compel them to render a full account, and to indemnify him for any loss occasioned by his negligence.

Contraria lay for the gestor against the dominus and his heredes, to indemnify him for all necessary costs and expenses, provided the affair has been utiliter gestum; but if he have expended more money than was necessary he could not recover the excess9.

BOOK

III.

Tutela.

Actions.

Rei com

munis ad

2. Tutela is a contract between tutor and pupil, by which the former is bound to administer faithfully the affairs of his pupil, and the latter to indemnify the tutor for all expenses incurred in the execution of his office. The office of tutor involves an implied contract, because the tutor is thereby bound faithfully to administer the affairs of the pupil', and the pupil, on the other hand, to indemnify the tutor for all necessary charges and expenses2. The relative duties of these parties have already been considered3. The actions are directa and contraria; the former against the tutor to compel him to deliver a statement of his account, and to indemnify the pupil for all losses occasioned by his negligence; the latter, to compel the pupil to reimburse the tutor for all expenses incurred on his behalf. A utilis actio lay also directa and contrariæ, as between minors and

curators.

3. Rei communis administratio involved a ministratio, quasi contract between two or more persons to whom the same thing had been given, or left by way of legacy, by which each was bound to divide the thing so possessed in common, and to allow for all extraordinary costs in the care or keeping of Actio com- its. To enforce this the actio communi dividundo dundo. was established.

muni divi

Hereditatis

tratio.

4. Hereditatis administratio was a quasi conadminis tract between coheirs to the same estate, by which each was bound to divide the inheritance, and to settle all accounts relating to it, in fair proportion"; and this was enforced by the actio familia Actio fami- erciscundæ, which lay for one coheir against anliæ ercis- others.

cundæ.

Hereditatis aditio.

5. Hereditatis aditio is a quasi contract quo is qui hereditatem adiit cum legatariis et fideicom

missariis contraxisse, seque ad legata et fideicom- CHAP. missa præstanda obligasse censetur1. The act of IX. accepting the inheritance made the heir bound to the legatees to pay them the legacies left by the testator2; but this implied contract existed only between the heres, and the legatarii, and fideicommissaria; for the creditors to whom the estate of the deceased was indebted could sue the heres as they could have done the deceased; upon whom devolved not only his rights, but all his liabilities. From this contract arose the actio personalis ex testamento against the heres who had administered to the estate, to enforce the delivery of the legata and fideicommissa, with any accessions that might have accrued to them, with interest for the period of his delay3.

6. Indebiti solutio was a contract by which he Indebiti who by mistake had been paid what was not due solutio. to him was bound to make restitution to the person who had paid him. Est quasi contractus quo Definition. quis ex errore facti1 id quod naturaliter indebitum erat solvendo, alterum, qui ex ignorantia accepit ad restitutionem obligasse censetur3. It is therefore necessary to constitute this contract, that the payment and receipt should be with the ignorance of the payer and payee, and that the thing paid was indebitum. If the payer knew he was paying what was not due he had no remedy, because he either intended it as a gift, or his intention was to vex the payer with an action, which the law would not countenance. If the payee receives with a knowledge it was not due, not only the condictio indebiti, but the actio furti, would lie against him. The condictio indebiti was an action stricti juris for the recovery of whatever had been paid per errorem, to compel the receiver and his heres to

1 Hein. El. 985.

2 I. III. 28. 5.

3 D. XXXI. 33.

4 Whether an error in law was sufficient to support an action is doubtful. Vid. Colq. 1786 et seq.

5 Hein. El. 987.

6 D. XII. 6. 1. 1,

BOOK refund with all accessions from the time of payIII. ment.

A payment to the wrong person per errorem would support the action. Also in the case of payment to minors, prodigals, and women. This action must be distinguished from the condictio causa data, causa non secuta, as in the case of do ut des; also from the condictio ob turpem causam, as where I give you money not to commit murder1; and from the condictio sine causa, as in the case of a dos given in consideration of an incestuous marriage, which may be recovered by that action from the want of consideration. It is obvious that we may be involved in the abovementioned contracts by those who act by our authority, and on our behalf, as a filiusfamilias, or a servus.

CHAPTER X.

Of the way by which Obligations arising from
Contracts are Dissolved.

X.

OBLIGATIONS arising from Contracts were dis- CHAP. solved either, I. Ope exceptionis, or 2. Ipso jure; in the former case, by the allegation and proof of Contracts some fact sufficient to defeat an action; in the solved. latter, where the law took away the right of action.

how dis

I. 1. Ope Exceptionis. Examples of this may be Ope excepseen in præscriptio, where the defendant pleads the tionis. fact that he has been the bona fide possessor of the thing sought to be recovered for that period whereby the law assigns it to him; or a res judicata, where he pleads the judgment of a court in his favour in a former action.

2. Ipso Jure. The ways in which obligations Ipso jure. were dissolved by the operation of law, were, 1. Common to all contracts. 2. Peculiar to some, and exclusive of others.

I. The ways common to all contracts were 1. Solutio. 2. Compensatio. 3. Confusio. 4. Oblatio. 5. Rei Interitus. 6. Novatio.

I.

1. Solutio, payment, the ordinary mode of Solutio. cancelling obligations, quæ est vera præstatio ejus quod in obligatione est; though the term solutio involves every satisfaction of a claim of whatever nature it may be2. One thing cannot be given in satisfaction for another3, nor can payment be made by instalments unless by consent of the creditor1. Nor can the payment be properly made at any other time and place than that agreed on. The effect of payment is to liberate the debtor and his