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the proof, here barely indicated, is worked out with the utmost elaboration and detail by Savigny'. With his view accords the well-known passage where Justinian speaks of "actiones in personam, per quas intendit adversarium ei dare facere oportere et aliis quibusdam modis," the first words, “dare facere oportere,” referring to the condictiones, the final words to all other personal actions; viz. delict actions, with the intentio cast in the form“ damnum decidere oportere,” the honorary actions, which had an intentio in factum concepta, and were therefore without the words “dare facere oportere,” and the other class of civil actions on contract, viz. the bonae fidei actiones, wherein the words “ ex fide bona” were superadded to the “dare facere oportere."
1 Röm. Recht. App. XIV. $S 25, 26. 2 Just. Inst. 4. 6. 1.
Gaius uses the word praestare to denote the same thing.
3 Savigny also points out (Röm. Recht. § 218 and App. XIII, XIV), that although every action must in its essence be stricti juris or bonae fidei, yet the actual appellations are never used except in reference to personal actions on contract. All civil actions in rem, he says, are essentially bonae fidei, and so also are all honorary actions, whether in rem or in personam; civil actions on delict are as uniformly and essentially stricti juris: but actions on contract may be either the one or the other, prior to positive enactment on the subject; and, no doubt because of this inherent possibility, such actions are carefully classified in the Sources into the stricti juris actiones, more commonly styled condictiones, and the bonae fidei actiones (Just. Inst. 4. 6. pr., with which compare D. 12. 3. 5. 4, Inst.
6. 30). In the former variety of actions on contract, as in all other actions which are essentially stricti juris, the judex, under the formulary system, had a very limited power; in the other variety he had a larger discretion, to decide according to equity. This division of all actions,
into those which are in their nature stricti juris and those which are in their nature bonae fidei, corresponds with Cicero's classification of judicia and arbitria, mentioned in Pro Rosc. Com. 5 and De Off. III. 15 and 17; for although, if the passage first cited stood alone, we might imagine that all actions on the Civil Law were termed judicia, and all actions on the Edict arbitria, yet, reading the three extracts together, we perceive that a judicium was a proceeding under some lex or senatus consultum, and therefore of necessity a Civil Suit, in which the judex was tied down to the letter of his formula; whereas an arbitrium was a proceeding which might be either on a lex, or a senatusconsultum or on the Edict, wherein the judex, called in such cases the arbiter, had greater latitude, his formula empowering him to decide ex fide bona, ut inter bonos bene agier oportet, quod aequius melius (Cic. Top. 17). This also appears from a passage in Seneca (De Benef. 111. 7), where we are further informed that only citizens registered on the album could be judices, whilst any citizen whatever might be appointed arbiter. Hence, actions may be thus classified with reference to the extent of the power possessed by the judex :
Savigny has also fully discussed the origin and nature of Condictiones, and investigated the reason for their being stricti juris. He thinks that the Roman Law began, first of all, to protect property and rights inseparably connected with property, i.e. rights correlating to duties mainly negative, by allowing an actio in rem; and next proceeded to protect rights strikingly analogous to property rights, though originating from contract or quasi-contract. This it did by means of the Condiction ; extending the same remedy afterwards to injuries to rights of a kind akin to property-rights, in cases of delict or mistake, and on other grounds of obligation. For, he says, when the Law recognizes contracts or quasi-contracts, from that moment it takes on itself the duty of protecting certain rights of each contractor against the other contractor ; which rights usually correspond to positive duties; whereas proprietary rights generally correlate with negative duties. If, for example, in a contract or quasi-contract detention is parted with, but property retained, the Law can afford protection to some extent by simply allowing a real action, as when a lessee detains beyond the proper time land which has been let to him, and so violates his negative duty to abstain from interference with
Per formulam petitoriam ......Arbitrium In rem
LPer sponsionem (i.e. by con
version into an actio in per-
Bonae fidei .....Arbitrium
another's property. But there are many possible and intended consequences, even of transactions with regard to property, which a real action cannot protect; in a lease, for example, the rent, if unpaid, must be recovered by some other process, for payment of rent is a positive duty, and incumbent on a definite person, not on the whole community. The Law, therefore, in this and all other cases where there is a manifest wrong for which the real action is useless, has in course of time granted a personal action, on the ground that good faith must be observed, or, in other words, that he who causes a lawful expectation shall not be allowed to disappoint it; for such an expectation is in some degree property, or is analogous to property. When property has been retained in a contract, and only detention parted with, we have a partial remedy in the real action; but this, as already noticed, is not always sufficient to give complete redress in case of wrong. There are, however, two other classes of cases, of even greater frequency, where a reasonable expectation is raised, and the real action is entirely inapplicable, viz. (1) when there is no giving up of any property or detention at all, (2) when both property and detention are parted with, but for a special purpose and not as a free gift. For the former the Law provides bonae fidei actions, for the latter condictiones. As to the bonae fidei actions': —these have reference to a considerable number of possible dealings between man and man; for contracts in which neither detention nor property is parted with are obviously very numerous, and in many of them it may be disputable what is the precise expectation excited on either or on both sides. The Law can only lay down the simple rule, that each ought to do for the other what his words or actions would lead that other to expect, and this fidelity to engagements is the technical Bona Fides of Roman Law. Voet's description of bona fides is as follows: “in matters which lay an obligation on each party it is difficult, owing to the multiplicity of details, to state every point in the agreement, even when men of businesshabits are the parties; it is therefore the rule that anything unexpressed in the agreement shall be supplied by the judex in accordance with fairness and equity, over and above what has been clearly defined'.” Savigny's theory is very much to the same effect, for he lays down that in such instances each party may think his own view of bona fides the correct one, whilst admitting the possibility of error in his estimate: he is prepared therefore to submit the case to the decision of an umpire, and the Law provides the machinery for appointing one, who, from the nature of the case, can take into account all circumstances which on principles of good faith affect the rights and duties of the parties." This then is the origin of bonae fidei actions, or, as Cicero styles them, arbitria: which are applicable (inter alia) to those cases of breach of contract (1) where neither detention nor property has been parted with, (2) where detention has been parted with and not property, but restitution of detention is not the whole of the remedy needful to be provided. These remarks upon bonae fidei actions being introduced only to clear the ground for an explanation of Condictions, we may dismiss the first-named class, after briefly noticing that, so far as procedure is concerned, they range themselves into two subdivisions, namely (1) the class wherein a principal obligation is imposed on each contractor, and consequently a direct action granted to each (actiones utrimque directae), and (2) the other class where there is only on one side a principal obligation, and on the other a consequential obligation, the first enforceable by actio directa, the second by actio contraria.
1 It is Savigny's view, I think, that these actions were of later date than the condictions, for although he says (in § 220 Röm. Recht.) that condictions and bonae fidei actions grew up together; yet afterwards (in App. XIII. § 13) he seems to incline to the opinion, that since from very early times any agreement could be converted into a stipulation; in which case, as we shall presently see, it could be en
forced by condiction; therefore the early Law of Rome refused a remedy to those who had neglected an obvious safeguard. Other writers assert, what no doubt is true, that reference to arbitration is a primitive custom antecedent to law, and argue hence that early law would adopt it as a reasonable mode of settling dispute; and this seems the more probable view to take.
i Voet ad Pand. 12. 1. $ 6. See also D. 21. 1. 31. 20.
“Ea enim quae sunt moris et consuetudinis in bonae fidei judiciis debent venire." 2 See D. 21. 1. 31. 20.
The arbiter can,
for instance, give interest
ex mora to the plaintiff; D. 22. 1. 32. 2: D. 16. 3. 24; and entertain exceptions not specially pleaded before litis contestativ, especially the exceptio pacti, or exceptio doli; D. 18. 5. 3: D. 24. 3. 21, &c.
We pass now to the other case suggested above, where the Law ought to protect expectation, viz. when both property and detention have been parted with, but not to create a simple gift. Here one person divests himself of his proprietary rights in favour of another, on the understanding or in the expectation that this other shall in return give him a different thing, or perform for him some specific service'. It is clear that in this case again, a real action is useless, for the creditor, however much he may be deceived, has, of his own free will, parted with his property. And yet he is suffering a disappointment, strikingly analogous to that of a man whose property is kept from him; for his property, if he gave a mutuum, is diminished to the same extent exactly as the property of the other is increased; or if the res credita was that some different thing would be given or done in return for his alienation of property, the gain of the other party, if not what the donor loses in fact, is what he loses in expectation, and the two, if the contract was a reasonable one, may be presumed to be equivalent. Hence, he requires something akin to specific restitution, a return of equal value, at any rate; no circumstance requires to be considered beyond the fact of the agreement, and so the judex has no discretionary power, but must award either the whole of what is claimed or nothing at all. Hence arise the condictiones, or, at any rate, those afterwards designated condictio certi, or condictio si certum petatur, and condictio causa data causa non secuta. And it is most important to notice, that because one party alone can suffer disappointment of expectation, the other having received his inducement and expecting nothing further, therefore the condictiones are of necessity unilateral and stricti juris; which marks are characteristic not only of the two condictiones just named, but of all the other condictiones which
1 D. 12. I. I. I.
2 Called also actiones condictionis, C. 4. 5. 1; C. 4. 6. 2; condictitiae
actiones, Inst. 3. 14. I, Inst. 4. 6. 24; D. 12. 1. 24: D. 12. 4. 7: C. 8.
55. 3, &c.