There is a doubt whether even this condiction can be employed when the relation between the parties is founded neither on contract nor quasi-contract.

I. 32.

12. 6. 33.

As to the condictio furtiva, which is treated of in D. 13. 1, remarks will be found above under the heading (H) p. xiv.; and it needs only to be added here that whereas all other condictiones are brought on the ground that an owner has been deprived of property, of which he ought not to have been deprived, and that a vindicatio is inapplicable; this condiction is allowed, odio furum, Just. Inst. 4. 6. 14, even when a vindication is possible, and is brought by a person who is still owner of that for which he sues.

The contents of D. 13. 1 may be thus tabulated.

The condictio furtiva arises when a theft has been committed.

It is brought, in its proper form, only by him who
was owner of the stolen thing at the time it was
stolen ;

or by the general successor of that owner; not by
a special successor;

13. I. I: 13.

I. 12. pr.: 13. 1. 18:

13. 3. I. I:

13. 3. 2: 13. I. II: 13.

I. 14. pr.

but not by an owner, who, after the theft, has
voluntarily parted with ownership.

But a condictio furtiva incerti can be brought by
a person robbed merely of possession.
The condictio furtiva is brought against the thief
(or bonorum raptor) or his heir;

but cannot be brought against a mere accomplice
(although the actio furti can).

It can be brought against one who has potestas over
a thief, to the amount of his profit ;

but not against a slave himself, if subsequently
manumitted (though the actio furti can).

It is brought for the thing, if still existent,

or for any part of it existent;

or, if it is non-existent, for its best value since the
time of theft, however its value may have been
diminished or augmented;

but not if the owner has recovered the article, had
it tendered to him, or compromised for it.

Fruits and profits are included in the value.

The condictio furtiva can be brought, even though
the actio furti has been compromised.

The condictio ex lege and the condictio triticaria are treated very briefly in D. 13. 2 and D. 13. 3: and the doctrines contained in the few excerpts which these Titles comprise have been already discussed and tabulated; with the exception of the regulations as to the time at which the value of an article is to be estimated when claimed in a condictio triticaria. 12. 3. 3: 12. 3. 4.

DE REBUS CREDITIS SI CERTUM PETETUR

ET DE CONDICTIONE.

D. 12. I.

1. ULPIANUS libro uicensimo sexto ad edictum. E re est, priusquam ad uerborum interpretationem perueniamus, pauca de significatione ipsius tituli referre. (1.) Quoniam igitur multa ad contractus uarios pertinentia iura sub hoc titulo praetor inseruit, ideo rerum creditarum titulum praemisit: omnes enim contractus, quos alienam fidem secuti instituimus, conplectitur: nam, ut libro primo quaestionum Celsus ait, credendi generalis appellatio est: ideo sub hoc titulo praetor et de commodato et

1. Papinian. It is proper to say a few words about the meaning of this Title itself, before proceeding to explain the statements contained therein. I. The Praetor, then, affixed to it the name "Rerum Creditarum," because he inserted in it many rules relating to a variety of contracts; for it includes all the contracts into which we enter in dependence upon another's good faith'; since, as Celsus states in the first book of his Quaestiones, credere is a general expression: and so the Praetor also included rules about loan and pledge

1 Dependence on another's good faith is characteristic of all contracts; but the phrase "alienam fidem sequi" is specially applied to those contracts wherein we part with property to another in consideration of his engagement, voluntary or imposed by law, to give or do something, or to abstain from something in return. See Savigny, Röm. Recht. § 219.

2 Papinian does not mean that the Praetor included the topics of commodatum and pignus under the title "De Rebus Creditis," merely because they involve a certain amount of dependence on another's good faith, in the fact that we entrust him with the possession of our property. This interpretation would not accord with what we have just stated, in the preceding note, as to

de pignore edixit. nam cuicumque rei adsentiamur alienam fidem secuti mox recepturi quid ex hoc contractu, credere dicimur. rei quoque uerbum ut generale praetor elegit.

2. PAULUS libro uicensimo octauo ad edictum. Mutuum damus recepturi non eandem speciem quam dedimus (alioquin commodatum erit aut depositum), sed idem genus: nam si aliud genus, ueluti ut pro tritico uinum recipiamus, non erit mutuum. (1.) Mutui datio consistit in his rebus, quae pondere numero mensura consistunt, quoniam eorum datione possumus in creditum ire, quia in genere suo functionem recipiunt per solutionem quam specie: nam in ceteris rebus ideo in creditum under this heading. For whenever we consent to anything in dependence on another's good faith and expecting hereafter to receive something under the contract, we are said "to trust” (credere). The Praetor also used the word res as being a comprehensive one,

:

2. Paulus. What we give is a mutuum, when we do not expect to receive back the identical thing which we gave, (if we do, it will be a commodatum or a depositum,) but the same kind for if we are to receive back another kind, as wine in return for wheat, it will not be a mutuum'. I. The giving of a mutuum is possible in the case of those things which can be weighed, counted or measured; since we can create ourselves creditors by the giving of such, inasmuch as they admit of discharge by payment in their kind rather than in identity; for the reason why we cannot become creditors as to different

the special character of the trust implied in creditum, viz. that it involves a parting with all proprietary rights. If a man does not deny our ownership of the deposit or pledge left in his hands, we can only proceed against him by a bonæ fidei action, actio commodati or actio pigneraticia. But if, after we have entrusted him with possession, he wrongfully assumes property, by consuming or alienating the article, he destroys our vindicatio; and to replace it we have a condictio, which we may, if we please, use instead of the bona fidei action. The commodatum or pignus has in fact by such

supervening event been converted into a creditum, and the usual remedy for a breach of creditum is applicable. See Introduction, under heading (C), and the notes thereon.

1 This will be permutatio, or do ut des, one of the so-called innominate contracts.

2 Creditum here has a restricted signification. In other passages it denotes an expectation of a return, but here an expectation of a return in genere. This being an arbitrary sense attached to the word, the reasoning in the concluding part of the paragraph is merely arguing in a circle.

ire non possumus, quia aliud pro alio inuito creditori solui non potest. (2.) Appellata est autem mutui datio ab eo, quod de meo tuum fit: et ideo, si non fiat tuum, non nascitur obligatio. (3.) Creditum ergo a mutuo differt qua genus a specie: nam creditum consistit extra eas res, quae pondere numero mensura continentur sic, ut, si eandem rem recepturi sumus, creditum est. item mutuum non potest esse, nisi proficiscatur pecunia, creditum autem interdum etiam si nihil proficiscatur, ueluti si post nuptias dos promittatur. (4.) In mutui datione oportet dominum esse dantem, nec obest, quod filius familias et seruus dantes peculiares nummos obligant: id enim tale est, quale si uoluntate mea tu des pecuniam: nam mihi actio adquiritur, licet mei nummi non fuerint. (5.) Verbis quoque credimus quodam actu ad obligationem comparandam interposito, ueluti stipulatione.

matters is that one thing cannot be paid for another without the creditor's consent. 2. Mutuum derives its name from the circumstance that a thing becomes yours from being mine; and therefore if it does not become yours, the obligation does not arise. 3. Hence creditum differs from mutuum as a class from a species; for there is creditum in matters which do not admit of weighing, counting or measuring, so that it is a creditum even when we are to receive back the same article. Again, there can be no mutuum unless value is parted with, but there is sometimes creditum even though nothing be parted with, as, for instance, when a portion is promised subsequently to marriage'. 4. When a mutuum is given, the donor must be owner; and it is not contrary to this statement that a filiusfamilias and a slave bind (the receiver) by giving money which is part of their peculium: since this is a case similar to your giving money at my request, for the right of action accrues to me, although the money was not mine. 5. We can also make ourselves creditors3 verbally, when some formal act, such as a stipulation, is employed to create the obligation.

1 Creditum is here used in a sense more sweeping than any previously employed, viz. an expectation which is not founded at all upon consideration given by ourselves, but is merely based on another's voluntary promise.

2 The agent is regarded as making it mine when he lends it on my account.

3 We can therefore have a condiction; but the obligation is not ex mutuo.