Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/717

Rh JUS CIVILE.] ROMAN LAW 693 any other form than that of vadimonium ? One can have no hesitation in answering that, as transactions of daily life, they must all have been more or less familiar. It does not follow, how- ever, that they were already regulated by law and protected by the ordinary tribunals. The historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commodatum), deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet very barely recognized by law. Sale was the offspring of barter, of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side, even when the ware (merx) given by one of the parties was so much rough copper weighed in the scales. The substitution of coined money for the raw metal can hardly have effected any radical change : the ordinary practice of those early times must still have been ready-money transaction, an instant exchange of ware for price ; and it can only have been when, for some reason or other, the arrangement was exceptionally for delivery or pay- ment at a future date, say next market day, that obligation was held to have been created. Was that obligation enforcible by the civil tribunals ? Some jurists hold that it was, that at no time were the jus gentium contracts outside the protection of judicial remedies, although by a simpler procedure than that resorted to for enforcement of the contracts of the jus civile. But two provisions in the XII. Tables seem to prove very clearly that it was not so enforcible. The first is one recorded by Justinian, that, where a thing was sold and delivered, the property, nevertheless, was not to pass until the price had been paid or sureties (vades) for it accepted by the vendor. Far from being a recognition of the obligatory nature of the transaction, this provision is really a recognition of the inability of the law to enforce payment of the price by the vendee ; it is a declaration that, on the latter's failure to pay, the vendor, unprotected by any personal action, should be entitled to get back the thing sold as still his own, no matter in whose hands he found it. The second related to the case of a person who had bought a victim for sacrifice, but had failed to pay for it. A real action for its revindication by the seller after it had been consumed on the altar was out of the question ; so he was authorized by the Tables, by the process of pignoris capio (supra, p. 686), at his own hand to appropriate in satisfaction a sufficient equivalent out of the belong- ings of the purchaser, against whom he had no personal action, iqui- It was a principle of the law of Rome through the ntract an ^ ncreas ^ n o number of exceptions, that mere agreement ' between two persons did not give him in whose favour it was conceived a right to demand its enforcement. To entitle a man to claim the intervention of the civil tri- bunals to compel implement of an engagement under- taken by another, it was necessary (subject to those ex- ceptions) either that it should be clothed in some form prescribed or recognized by the law, or that it should be accompanied or followed by some relative act which ren- dered it something more than a mere interchange of consent. Under the jurisprudence of the XII. Tables the formalities required to elevate an agreement to the rank of contract and make it civilly obligatory sometimes combined cere- monial act and words of style, sometimes did not go beyond words of style, but in all cases took place before witnesses. Dotis dictio, the undertaking of a parent to provide a dowry with his daughter whom he was giving in marriage, and vadimonium, the guarantee of a surety for the due fulfilment of the undertaking either of a party to a con- tract or a party to a litigation, probably required nothing more than words of style before persons who could if necessary bear witness to them ; whereas an engagement incident to a mancipation, or an undertaking to repay borrowed money, required in addition a ceremony with the copper and the scales. This undertaking to repay arose from the contract of nexum, which was older than the Tables ; both it and the verbal contract by sponsio or stipulation, which was younger, merit further consideration. The Nexal Contract. 1 The tumults and seditions so 1 Literature: Savigny, "Ueberd.altrdm.Schuldrecht,"inhis Verm. Schriften, vol. ii. p. 396 sq. ; Scheurl, Vom Nexum, Erlangen, 1839 ; C. Bell, De juris Rom. nexo et mancipio, Brunswick, 1840 ; Van Heusde, De Leye Poetilia Papiria, Utrecht, 1842 ; Bachofen, Das Nexum, &c. ( Basel, 1843 ; Huschke, Ueber d. Recht des Nexum, Leipsic, 1846 ; Giraud, Des Nexi ou de la condition des deUteurs chez les Romains, Paris, 1847 ; Bekker, Die Aktionen des riim. Privatrechts, vol. i., frequent in Rome during the first two centuries of the Causes o republic are more frequently attributed by the historians plebeian to the abuses of the law of debt than to any other cause, ^ row " social or political. The circumstances of the poorer ple- beians were such as to make it almost impossible to avoid borrowing. Their scanty means were dependent on the regular cultivation of their little acres, and on each opera- tion of the agricultural year being performed in proper rotation and at the proper season. But this was every now and again interfered with by wars which detained them from home at seed-time or harvest, practically render- ing their farms unproductive and leaving them and their families in straits for the commonest necessaries of life. A poor peasant, in such a case, had no alternative but to apply to a capitalist for a loan. But it was not to be had without security, and rarely without interest. It was not that the lender doubted the borrower's honesty and willing- ness to repay his debt ; it was rather that there was every chance that next year a fresh war might again interfere with the latter's agricultural operations, leave him again without a crop, and thus render repayment impossible. And so, while interest accumulated and was periodically added to capital, new loans had year after year to be con- tracted as long as any acres remained that could serve as a security ; failing all things, the debtor had to impledge or hypothecate himself; 2 for, phrase it how we may, this was substantially the result of the contract of nexum. The practice of lending per libram was doubtless of Nexal great antiquity, indeed the intervention of the scales was contract, a necessity when money or what passed for it had to be weighed instead of counted; and not improbably old custom conceded to a lender who had thus made an advance in the presence of witnesses some very summary and stringent remedy against a borrower who failed in repayment. How Servius subjected it to much the same formalities as he appointed for mancipation the state scales, the official libripens, the five witnesses representing the nation has been shown already. With the introduction of a coinage the transaction, instead of being per libram simply, became one per aes et libram ; the scales were touched with a single piece, representing the money which had already been or was about to be paid, a formula recited whereby the obliga- tion of repayment was imposed on the borrower, and an appeal made to the witnesses for their testimony. Unfortu- nately this formula is nowhere preserved. Huschke and Giraud, assuming that the lender was the only speaker, formulate it thus "quod ego tibi mille libras hoc aere aeneaque libra nexas dedi, eas tu mihi post annum jure nexi dare damnas esto" "whereas with this coin and these copper scales I have given thee a thousand asses, be thou therefore bound jure nexi to repay them to me a year hence." The phrase damnas esto, like the rest of the formula, is unsupported by any conclusive authority ; but, as it was that most frequently employed in the republic for imposing by a public act liability to pay a fixed and definite sum, it may not be wide of the mark. What was the effect of this procedure ? The question is one not easily answered. Brinz has expressed the opinion that the creditor was entitled in virtue of the nexum to take his debtor into custody at any time when he considered such a course necessary for his own Berlin, 1871, cap. 2 ; Vainberg, Le Nexum. . . en droit Remain, Paris, 1874 ; Brinz, " Der Begriff dbligatio," in Griinhut's Zeitschr., vol. i. (1874), p. 11 sq. ; and Voigt, XII. Tafeln, vol. i. 63-65. There is a resume of the principal theories (down to 1870) in Danz, Gesch. d. rom. Rechts, vol. ii., 2d ed., Leipsic, 1873, 146. 2 "He told them how he had been obliged to borrow money, be- cause, when he had been away fighting against the Sabines, his farm had remained uncropped, his house had been burned, his cattle driven off, everything plundered, and at the same time, unhappily for him, a tribute imposed ; how first his ancestral lands had gone, then his other property, and at last, like a wasting disease, it had come to his body ; how his creditor, instead of putting him to work (in servitium], had thrown him into a dungeon and a torture-chamber " (Liv., ii. 23).
 * es of whole of its history, though in course of time subject to