Lease and hire. Partnership

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gave generally a claim for rescission whenever the price was less than half the real value. This ground of rescission was later called laesio enormis, and many attempts were made to extend its application.

The contract of LEASE AND HIRE is similar in many respects to that of purchase and sale. But the lessee, if evicted, has only his claim against the lessor on his covenant to guaranty quiet possession, and has no hold over the land, if sold by his lessor to another. In letting a farm the lessor was bound to put it in good repair and supply necessary stabling and plant: and, if landslip or earthquake or an army of locusts or other irresistible force does damage, the lessor has to remit proportionably the current rent. The like rules held of letting houses, except that plant was not provided. The lessee had a good claim on the lessor for any necessary or useful additions or improvements, and usually could recover his expenditure or remove them. He was bound to maintain the leased property whether farm or house, and to treat it in a proper manner, cultivating the farm in the usual way. He could underlet within the limits of his term; and the law of the fifth century allowed either lessor or lessee to throw up the contract within the first year, without any penalty, unless such had been agreed on. The usual term of lease was five years, at least in Italy and Africa; in Egypt one or three years.

Contracts for building a house, carriage of goods, training of a slave, etc., come under this head, where the locator supplied the site or other material. The conductor, who performed the service, was liable for negligence.

PARTNERSHIP is another contract founded on simple agreement, but also characterised, like the two last mentioned, by reciprocal services. It was in fact an agreement between two or more persons to carry on some business together for common account. The contributions of the members and their shares in the result were settled by agreement, and they were accountable to each other for gains and losses. Like other contracts it concerned only the partners: outsiders need know nothing of it; in any business with them only the acting partner or partners were responsible. A partner's heir did not become a partner, except by a new contract with common consent. A partnership came to an end by the death of a partner, or his retirement after due notice, or when the business or time agreed came to an end.

There was no free development of association into larger companies, without the express approval of the State. A company continues to exist irrespectively of the change or decease of the members, regulates its own membership and proceedings, has a common chest and a common representative, holds, acquires, and alienates its property as an individual. In Rome such corporate character and rights were only gradually granted and recognised, each particular privilege being conceded to this or that institution or class of institutions as occasion required.

Towns and other civil communities had common property and a

common chest, could manumit their slaves and take legacies and inheritances. They usually acted through a manager; their resolutions required a majority of the quorum, which was two-thirds of the whole number of councillors (decuriones). They are said corpus habere, "to be a body corporate."

Other associations for burials or for religious or charitable purposes, often combined with social festivities, were allowed to exist with statutes of their own making, if not contrary to the general law. But without express permission they could not have full corporate rights. Guilds or unions of the members of a trade, as bakers, are found with various privileges. Such authorised societies or clubs were often called collegia or sodalitates. They were modelled more or less on civic corporations : Marcus Aurelius first granted them permission to manumit there slaves.

The large companies for farming the taxes (publicani) or working gold or silver mines had the rights of a corporation, but probably not so far as to exclude individual liability for the debts, if the common chest did not suffice.

MANDATE differs from the three other contracts, which are based on simple agreement. There are no reciprocal services and no remuneration or common profits. It is gratuitous agency: not the agency of a paid man of business; that would come under the head of hiring. Nor is it like the agency of a slave; that is the use of a chattel by its owner. It is the agency of a friend whose good faith, as well as his credit, is at stake in the matter. The mandatee is liable to the mandator for due performance of the commission he had undertaken, and the mandator is liable to him only for the reimbursement of his expenses in the conduct of the matter.

Similar agency but unauthorised, without any contract, was not uncommon at Rome, when a friend took it upon himself to manage some business for another in the latter's absence and thereby saved him from some loss or even gained him some advantage. The swift process of the law courts in early days seems to have produced and justified friendly interference by third parties, which required and received legal recognition. The person whose affairs had thus been handled had a claim upon the interferer for anything thereby gained, and for compensation for any loss occasioned by such perhaps really ill-advised action or for negligence in the conduct of the business, and was liable to reimburse him for expenses, and relieve him of other burdens he might have incurred on the absentee's behalf. Such actions were said to be negotiorum gestorum, "for business done."

But in Rome the usual agent was a slave; for anything acquired by him was thereby ipso facto acquired for his master, and for any debt incurred by him his master was liable up to the amount of his slave's peculium; and if the business in question was really for the master's account or done on his order the master was liable in full. And though

Agency.

Equitable interpretation

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in general when the master was sued on account of his slave (de peculio) he had a right to deduct from the peculium the amount of any debt due to himself, he had no such right when he was cognisant of the slave's action and had not forbidden it; he could then only claim rateably with other creditors. A son or daughter under power was for these purposes in the same position as a slave.

It was rarely that the Romans allowed a third party who was a freeman and independent to be privy to a contract. The freeman acquired and became liable for himself, and the principals to the contract in case of such an agent had to obtain transfers from him of the rights acquired: they could not themselves sue or be sued on the agent's contract. But two cases were regarded by Roman Law as exceptional. When a person provided a ship and appointed a skipper in charge of it, he was held liable in full for the skipper's contracts in connexion with it, if the person contracting chose to sue him instead of the skipper. And the like liability was enforced, if a man had taken a shop and appointed a manager over it. In both cases the rule held, whether the person appointing or appointed was man or woman, slave or free, of age or under age. The restriction of the owner's liability to the amount of the slave's peculium disappeared, and the privity of contract was recognised against the appointer, although the skipper or manager who actually made the contract was a free person acting as mediary. But this recognition was one-sided: the principal did not acquire the right of suing on the skipper's or manager's contract, if the latter were free; he must, usually at least, obtain a transfer of the right of suit from him, the transfer being enforced by suing the skipper or manager as an employee or mandatee.

At one time there was a marked difference between the consensual contract along with most of those arising re on the one hand, and on the other hand stipulation and cash-loan (mutuum). In actions to enforce the former the judge had a large discretion, and the standard by which he had to guide his decisions or findings was what was fairly to be expected from business men dealing with one another in good faith. In actions to enforce the latter the terms of the bargain were to be observed strictly the contract was regulated by the words used: the loan was to be repaid punctually in full. Gradually these latter contracts came to be treated similarly to the former so far as their nature permitted, and by Justinian's time the prevalence of equity was assured: the intention of the parties was the universal rule for interpretation of all contracts, and reasonable allowance was made for accidental difficulties in their execution, when there was no evidence of fraud.

Two modes were adopted in classical times for dealing with the engagements or position of parties where the terms and characteristics of

C. MED. H. VOL. II. CH. III.

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Quasi-contracts. Transfer

a proper contract in due form were not found. One was to treat the matter on the analogy of some contract the incidents of which it appeared to resemble. Thus money paid on the supposition of a debt, which however proved not to have existed, was recoverable, as if it had been a loan. Money or anything transferred to another in view of some event which did not take place was recoverable, as if paid on a conditional contract, the condition of which had not been fulfilled.

Another mode was for the complainant, instead of pleading a contract, to set forth the facts of the case and invite judgment on the defendant according to the judge's view of what the equity of the case required. Thus barter was not within the legal conception of purchase and sale, for that must always imply a price in money, but it had all other characteristics of a valid contract and was enforced accordingly on a statement of the facts. If a work had to be executed for payment but the amount of payment was left to be settled afterwards, this was not ordinary hire, which is for a definite remuneration, but might well be enforced on reasonable terms.

TRANSFER OF OBLIGATIONS. Before leaving contracts, which are the largest and most important branch of obligations, it is as well to point out that the transfer of an obligation, whether an active obligation, i.e. the right to demand, or a passive obligation, i.e. the duty to pay or perform, is attended with difficulties not found in the transfer of a physical object, whether land or chattels. An obligation being a relation of two parties with one another only, it seems contrary to its nature for A, who has a claim on B, to insist on payment from C instead ; or for D to claim for himself B's payment due to A. With the consent of all parties, the substitution is possible and reasonable, but the arrangement for transfer must be such as to secure D in the payment by B, and to release B from the payment to A. Two methods were in use. At A's bidding D stipulates from B for the debt due to A: B is thereby freed from the debt due to A and becomes bound to D. This was called by the Romans a novation, i.e. a renewal of the old debt in another form. Similarly 4 would stipulate from C for the debt owed by B to A. This being expressly in lieu of the former debt frees B and binds C. These transfers being made by stipulation require the parties to meet. The other method was for A to appoint D to collect the debt from B and keep the proceeds, the suit being carried on in A's name, and the form of the judgment naming D as the person entitled to receive instead of A. Similarly in the other case C would make A his representative to get in B's debt. In practice no doubt matters would rarely come to an actual suit. The method by representation was till 1873 familiar enough in England, a debt being a chose in action and recoverable by transferee only by a suit in the name of the transferor.

Gradually from about the third century it became allowable for the agent in such cases to bring an analogous action in his own name.

DELICTS. The other important class of obligations besides contracts are delicts or torts. They arise from acts which without legal justification injure another's person or family or property or reputation. Such acts, if regarded as likely to be injurious not only to the individual but to the community, become subjects for criminal law: if not so regarded, are subject for private prosecution and compensation. In many cases the injured person had a choice of proceeding against the offender criminally or for private compensation. The tendency in imperial times was to treat criminally the graver cases, especially when accompanied with violence or sacrilege.

The principal classes of delicts were: theft, wrongful damage, and insult (injuriarum). Theft is taking or handling with a gainful intention any movable belonging to another without the owner's consent actual or honestly presumed. Usually the theft is secret: if done with violence it is treated with greater severity as robbery (rapina). Any use of another's thing other than he has authorised comes under this tort, and not only the thief but anyone giving aid or counsel for a theft, is liable for the same. Not only the owner, but anyone responsible for safekeeping can sue as well as the owner. The penalty was ordinarily twofold the value of the thing stolen, but, if the thief was caught on the spot, fourfold the value. If the offence was committed by a slave the master could avoid the penalty by surrendering the slave to the plaintiff. In early days such a surrender of a son or daughter in their father's power was possible, but probably rare. Robbery was subjected to a penalty of fourfold the value. Cattle-driving was usually punished criminally. Theft from a man by a son or slave under his power was a matter of domestic discipline, not of legal process. Theft by a wife was treated as theft, but the name of the suit was softened into an action for making away with things (rerum amotarum).

Wrongful damage rested even till Justinian's time on a statute (Lex Aquilia) of early republican date which received characteristic treatment from lawyers' interpretations extending and narrowing its scope. It embraced damage done whether intentionally or accidentally to any slave or animal belonging to another, or indeed to anything, crops, wine, nets, dress, etc., belonging to another, provided it was done by direct physical touch, not in self-defence nor under irresistible force. If the damage was caused by defendant but not by corporal touch, the Romans resorted to the device of allowing an analogous action by setting forth the facts of the case, or by express statement of the analogy. The penalty was in case of death assessed at the highest value which the slave or animal had within a year preceding the death; in case of damage only, the value to the plaintiff within the preceding thirty days. But condemnations under this head of wrongful damage did not involve the infamy which belonged to theft; that was purposed, this was often the result of mere misfortune. Surrender of a slave who had caused the