1Papinianus, Questions, Book VIII. It sometimes happens that existing and common actions will not lie, and we cannot find the proper name for the proceeding; so we readily have recourse to those designated in factum. In order that examples may not be wanting, I will give a few. 1Labeo states that a civil action in factum should be granted to the owner of merchandise against the master of a ship, where it is uncertain whether he leased the ship, or hired the services of the master, for the transportation of his goods. 2Likewise, where anyone delivers property to another for examination in order to establish the price of the same, a transaction which is neither a deposit nor a loan for use, and the party does not show good faith, a civil action in factum can be brought against him.

2Celsus, Digest, Book VIII. For when common and ordinary causes of action are lacking, proceedings must be instituted under that available for the explanation of the terms of the contract.

3Julianus, Digest, Book XIV. It is necessary to have recourse to this action wherever contracts exist, the names of which have not been stated by the Civil Law:

4Ulpianus, On Sabinus, Book XXX. For it arises from the nature of things, that there are more business transactions than terms to designate them.

5Paulus, Questions, Book V. My natural son is in your service, and your son is in mine. It is agreed between us that you shall manumit mine, and that I shall manumit yours. I did so, but you did not. The question arose as to under what action you will be liable to me. In the consideration of this point every kind of transaction relative to the delivery of property must be taken into account which is shown in the following example, namely: I either give to you that you may give to me, or I give to you that you may perform some act, or I perform some act that you may give to me, or I perform some act for you that you may perform another for me. In these cases it may be asked what obligation arises. 1If, in fact, I give money that I may receive some property in return, the transaction is one of purchase and sale. If, however, I give an article in order to receive another, for the reason that it is not held that an exchange of property is a purchase, there is no doubt that a civil obligation arises on account of which an action can be brought, not to compel you to return what you have received, but that you may indemnify me to the extent of my interest in receiving the article which was the subject of the contract; or if I prefer to receive my property, an action can be brought to recover what was given, because property was given on one side but not on the other. If, however, I gave you certain cups in order that you might give Stichus to me, Stichus will be at my risk, and you will be responsible only for negligence. This is the explanation of the agreement, “I give in order that you may give.” 2But where I give in order that you may perform some act, and the act is such that it can be hired; for example that you may paint a picture, and money is paid, it will be a hiring, just as a purchase was made in the former instance. Where the transaction is not a hiring, a civil action either arises with reference to my interest, or a suit for the recovery of the property will lie. But if the act is such that it cannot be the subject of a contract for hire, as, for instance, that you manumit a slave, whether a certain time is added within which he must be manumitted, and when he could have been manumitted the time elapsed during the lifetime of the slave; or whether the time had not elapsed, but a sufficient period had passed when he could and should have been manumitted, an action can be brought for his recovery, or one for the construction of the contract. What we have already stated is applicable to these cases. If, however, I gave you a slave in order that you might manumit your slave, and you did so, and the one that I gave you is lost through a better title; if I gave him to you knowing that he was the property of another, Julianus says that an action based on fraud should be granted against me. If I was ignorant of the fact, a civil action in factum can be brought against me. 3If I perform some act in order that you may give me something, and after I have performed the act, you refuse to give it; a civil action will not lie, and therefore one on the ground of bad faith will be granted. 4If I perform some act in order that you may perform another, this includes several transactions. For if you and I agree that you can collect a claim from my debtor at Carthage, and that I can collect one from yours at Rome, or, that you may build a house on my land, in order that I may build one on yours, and I build mine, you fail to build yours; it is held that, in the former example, a mandate is given, as it were, without which money cannot be collected in the name of another. For even though expenses should be incurred on both sides, still, we are each doing a service for one another, and a mandate founded on an agreement may extend beyond its natural limits. For I can direct you to be responsible for the safe-keeping of the property, and, order that, in collecting the debt, you shall not spend more than ten aurei. Where we both spend the same amount, there can be no cause for dispute, but if only one performs the act, so that in this instance a mandate seems to have been given, for example, that he should refund to one another the expenses incurred by each, I give you no mandate with reference to your own property. It will, however, be safer both in the construction of houses and in the collection of debts, to hold that an action should be granted for the interpretation of the contract, which resembles an action on mandate, just as in the former cases a resemblance exists between the action on hiring and the one on sale. 5Hence, if these things are true, where it has been agreed upon by both parties to perform reciprocal acts, the same can be said with reference to the question proposed; and it necessarily follows that judgment must be rendered against you to the extent of my interest in the slave that I manumitted. Should a deduction be made because I now have a freedman? This, however, cannot be taken into consideration.

6Neratius, Opinions, Book I. I sold you a house on condition that you would repair another. The opinion was given that there was no sale, but that a civil action could be brought for an uncertain amount of damages.

7Ad Dig. 19,5,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3.Papinianus, Questions, Book II. If I gave you ten aurei in order that you might manumit Stichus, and you failed to do so; I can at once bring an action præscriptis verbis to force you to pay the amount of my interest; and if I have no interest, I can bring an action against you to compel you to restore the ten aurei.

8The Same, Questions, Book XXVII. Where a master, after having stated the value of his slave, delivered him up to be put to torture when he was accused of theft, and he was not found guilty, and he to whom he was delivered would not return him, a civil action can be brought against him on this ground; although, under certain circumstances, a party to whom a slave has been delivered can retain him. For he can retain a slave if the owner prefers to receive the money instead, or where he has been caught committing a crime; for then the amount at which he has been appraised must be paid by his master. But the question, however, arises, by what action the money can be recovered, if the master chooses to receive the appraised value of the slave? I stated that, although what was agreed among the parties was not prescribed by the terms of a stipulation, still, if the intention of the contract was not obscure, an action præscriptis verbis could in this case be brought, and that it should not be held that a mere agreement without consideration had been made, since it could be proved that the property was given under a certain condition.

9The Same, Opinions, Book XI. Where anyone is released from liability on condition that he will delegate his obligation to Titius, as debtor, and he does not comply with the condition of the contract, he will be liable to an action for an uncertain amount of damages. Hence it is the duty of the judge, not to see that the old obligation is restored, but that the promise shall be fulfilled, or judgment be rendered.

10Javolenus, Epistles, Book XIII. A certain man bequeathed the usufruct of a third of his estate. The property of his heir was sold by his creditors, and the woman to whom the bequest was made received, in the place of the usufruct, the amount of the appraisement of the third part of the estate, and, through ignorance, the ordinary stipulation was omitted. I ask whether suit can be brought by the heir of the woman for the money which was given her, instead of the enjoyment of the usufruct, and if so, what kind of a suit? I answered that an action in factum should be granted.

11Pomponius, On Quintus Mucius, Book XXXIX. For the reason that the number of actions is not sufficient in every instance, recourse, in general, is had to those in factum. So far as actions prescribed by the laws are concerned, where one is just and necessary, the Prætor supplies it, if no provision for the case has been made by legislation. This he does under the Lex Aquilia, by granting actions in factum adapted to the purpose, which the utility of said law requires.

12Proculus, Epistles, Book XI. Where a man sold certain lands to his wife, and an agreement was entered into at the time that, if the marriage was dissolved, the wife should transfer to her husband the said lands for the same price, if he desired her to do so, I think that an action in factum ought to be granted, and that this rule should also be observed with reference to other persons.

13Ulpianus, On Sabinus, Book XXX. Ad Dig. 19,5,13 pr.ROHGE, Bd. 13 (1874), Nr. 102, S. 311: Wesen der Societät. Geschäftsunternehmung auf gemeinschaftlichen Gewinn und Verlust. Beiderseitiges Leisten.If I give you property to be sold for a certain price, with the understanding that if you sell it for more you can keep the surplus, it is held that neither an action on mandate, nor one on partnership will lie, but that one in factum should be brought, as in the case of voluntary agency; for the reason that a mandate should be gratuitous, and a partnership is not held to be formed with reference to a person who does not admit you as a partner in the sale, but reserves a certain portion of the proceeds for himself. 1Julianus states in the Eleventh Book of the Digest: “If I give to you the ownership of an unoccupied tract of land belonging to me, on condition that after having built a house thereon, you will convey to me a share in the same; this transaction is not a sale, because I receive a part of my own property instead of the price; nor is it a mandate, because it is not gratuitous, nor a partnership, for the reason that no one, in entering into a partnership, ceases to be the owner of his own property.” But if I give you said land for the purpose of instructing a boy, or to pasture a flock, or for the support of a boy with the understanding that if it should be sold after the lapse of a certain number of years, the purchase-money shall be divided between us; this is a very different transaction from that relative to the unoccupied land, because in this case he who formerly owned the property does not cease to be the proprietor of the same, and therefore an action on partnership will lie. If, however, I should transfer to you the ownership of a young slave, the same rule will apply, as in the case of the land, because the ownership ceases to vest in the former proprietor. What, then, is the rule? Julianus thinks that an action in factum should be granted, that is to say, one for the interpretation of the contract. Hence, if the party does not transfer the ownership of the land, but permits you to build upon it with the understanding that either the land, or the price of the same, if sold, shall be divided, this will be a partnership. The same principle applies where the proprietor transfers the ownership of a portion of the land, reserving that of the remainder, and permits a house to be built under the same condition.

14The Same, On Sabinus, Book XLI. Where anyone throws merchandise belonging to another into the sea for the purpose of saving his own, he will not be liable to any action. If, however, he does this without any reason, he will be liable to an action in factum; and if he should do so with malicious intent, he will be liable to an action on that ground. 1Ad Dig. 19,5,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 6.If anyone should strip a slave belonging to another, and he dies of cold, an action on the ground of the theft of his clothing as well as one in factum on account of the slave can be brought; the right to proceed criminally against the thief remaining unimpaired. 2If anyone should throw into the sea a silver cup belonging to another, Pomponius, in the Seventeenth Book on Sabinus, says that neither an action of theft, nor one on the ground of unlawful damage will lie, but that one in factum can be brought. 3Where acorns fall upon my land from a tree belonging to you, and I permit my cattle to feed upon them, Aristo says that he knows of no legal action whereby I can proceed, because suit with reference to the pasturage of the cattle cannot be brought under the Law of the Twelve Tables, as they did not pasture upon your premises, nor one for trespass, nor one for unlawful damage. Hence an action in factum should be brought.

15Ad Dig. 19,5,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 308, Note 3.The Same, On Sabinus, Book XLII. Persons who know where fugitive slaves are concealed should inform their masters, and this does not render them guilty of theft; for it is usual for them to receive a reward for doing so, if they disclose the hiding place of said slaves, and the gift in this instance is not deemed unlawful; therefore, the party who receives the reward need not fear a suit for its recovery, because he received it for a good reason, and not for one which is dishonorable. Where, however, nothing was paid, but an agreement was entered into with reference to the information, that is to say, that a certain sum should be given to the party if he disclosed the hiding-place of the slave, and the latter is apprehended, let us see whether an action can be brought. In fact, this is not an agreement without consideration, from which it may be held that an action will not arise, but it includes a certain transaction, and therefore can become the ground for a civil action; that is, one præscriptis verbis, unless someone may say that, in this case, a suit on the ground of fraud will lie, where bad faith can be established.

16Pomponius, On Sabinus, Book XXII. You permitted me to dig chalk on your land on condition that I would fill up the place from whence I took it. I took away the chalk, but did not fill up the excavation. The question arose, what action are you entitled to? It is certain that a civil action for an unascertained amount of damages will lie. Where, however, you sold me the chalk, you can proceed by an action on sale. If, after taking out the chalk, I should fill up the excavation, and you do not allow me to remove the chalk, I will then have a right of action for production against you, because it belongs to me, as I dug it with your consent. 1You gave me permission to sow grain on your land, and to remove the crop. I sowed it, but you did not allow me to remove the grain. Aristo says that a civil action will not lie, and it may be a question whether an action in factum should be granted, but that one on the ground of bad faith will certainly be available.

17Ulpianus, On the Edict, Book XXVIII. If I give you a gratuitous lodging in my house, can I proceed against you on the ground of a loan for use? Vivianus says that I can; but it is safer to bring suit for the construction of the contract. 1If I give you a jewel the value of which has been appraised, on condition that you will restore it to me, or pay me the price of the same; and it should be destroyed before the sale was concluded, who must bear the loss? Labeo says, and Pomponius also holds that if I, as the vendor, ask you to dispose of it, the risk will be mine, but if you ask me to do so, it will be yours; and if neither one asks the other but we merely make an agreement, you will only be liable for fraud and negligence, and, in this instance, an action præscriptis verbis will certainly lie. 2Papinianus states in the Eighth Book of the Questions: “If I gave you an article for the purpose of examining it, and you allege that you have lost it, an action for the construction of the contract will lie only if I am ignorant where the article is. For if I know that it is in your possession, I can bring an action of theft, or one for the recovery of the property, or one for its production. Hence, if I have given the article to anyone to be examined, or for his own benefit, or for the benefit of both of us, I hold that he must be responsible to me for fraud and negligence, because of the advantage accruing to him; but not for its loss. Where, however, I have given the article to him for my own advantage, he will only be responsible for fraud, because this transaction closely resembles a deposit.” 3Where my neighbor and myself each have an ox, and it is agreed between us that I shall lend mine to him for ten days, and that he shall lend me his for the same space of time, for the purpose of doing our work; and either of the oxen should die while in possession of the other party, an action on loan for use will not lie, because the loan was not gratuitous, but proceedings for the construction of the contract can be instituted. 4Where, when you intended to sell me clothing, I requested you to leave it with me that I might show it to others more skilled in such matters than myself, and it was destroyed by fire, or by some other irresistible force; I will not be in the least responsible to you for its value. From which it is manifest that I am liable only for the want of ordinary care. 5Where anyone receives rings to be held as security for a wager, and does not surrender them to the one who wins it, an actio præscriptis verbis can be brought against him. The opinion of Sabinus, who thinks that, in this instance, an action for recovery, and one on the ground of theft, will lie, should not be adopted. For how can he bring an action on theft with reference to property whose possession or ownership he has never enjoyed? It is clear, however, that if the wager was dishonorable, the successful party can only recover his own ring.

18The Same, On the Edict, Book XXX. If I deposit a sum of money with you for you to give to Titius if he brings back my fugitive slave, and you do not give it to him because he did not restore said slave, and you fail to return me the money, the best method is to proceed by an action for the construction of the contract, since the pursuer of the fugitive slave and myself did not deposit said money, as is done in sequestration.

19The Same, On the Edict, Book XXXI. You asked me to loan you money, and as I did not have it, I gave you certain property to be sold that you might make use of the proceeds. If you did not sell said property, or you did sell it and did not take the price received as a loan, it is safer to proceed, as Labeo says, by an action for the interpretation of the contract, as if there had been a certain agreement entered into between us. 1If I should mortgage a tract of land for your benefit, and it should afterwards be agreed upon between us that you will furnish me a surety, and you do not do so; I say that the better plan will be to bring an action for the interpretation of the contract, unless some compensation is involved, for if it is, an action on lease will lie.

20The Same, On the Edict, Book XXXII. It is asked by Labeo, “If I give you horses that I have for sale to be tried, under the condition that you will return them within three days if they do not please you, and you, being a performer in the circus, ride said horses and win the prize, and then refuse to buy them; can an action on sale be brought against you?” I think the better opinion is that an action should be brought for the construction of the contract, for it was agreed upon between us that you should take said horses for the purpose of trying them gratuitously, and not that you should enter them in a race. 1The following question is asked by Mela: “If I let you have some mules for the purpose of trying them, with the understanding that if they please you you will buy them, but if they do not please you that you will pay me a certain sum for each day, and the mules are stolen by robbers within the time given for the trial; what must be made good, the money and the mules, or the mules alone?” Mela says that it makes a difference whether the purchase had already been concluded, or was to be concluded afterwards, for if the transaction was complete, suit can be brought for the price; but if not, it can only be brought for the mules. He does not mention, however, what actions are available, but I think that if the purchase was perfected, an action on sale will lie; but if this were not the case, that one can be brought like that granted against the circus-performer. 2If when you wish to purchase silver plate, and a silversmith brings some to you and leaves it, and, as it does not suit you, you give it to your servant to be returned, and it is lost without fraud or negligence on your part; the loss must be borne by the silversmith, because it was sent for his benefit as well as yours. Labeo says that it is certain that you are responsible for the negligence of those to whom the articles have been committed for safe-keeping and delivery; and I think that an action for the construction of the contract will lie in this instance.

21The Same, Disputations, Book II. Wherever an ordinary action or exception will not lie, a prætorian action or exception will be available.

22Gaius, On the Provincial Edict, Book X. If I give you clothing to be cleaned or repaired, and you undertake to do the work gratuitously, an obligation on mandate arises; but if compensation has been given or agreed upon, the transaction is one of leasing and hiring. If, however, you did not undertake it gratuitously, and compensation was neither given at the time nor promised, but the transaction was entered into with the understanding that afterwards payment should be made to the amount agreed upon between us; it is settled that an action in factum should be granted, as in the case of a new transaction, that is to say a suit for the interpretation of the contract.

23Alfenus, Epitomes of the Digest of Paulus, Book III. Two persons were walking along the Tiber; one of them having asked the other to show him his ring, he did so, and, while he was examining it, it fell from his hands and rolled into the Tiber. The opinion was given that an action in factum was available.

24Africanus, Questions, Book VIII. Titius lent Sempronius thirty aurei, it being agreed upon between them that, on the return of the money, Sempronius should pay the taxes which Titius owed, the interest being computed at six per cent; and in case the interest amounted to more than the taxes, Sempronius should return the surplus of said interest to Titius, and where the taxes were more than the interest, the excess should be deducted from the principal; but if the amount of the taxes should exceed both principal and interest, Titius should make good the amount to Sempronius; and no formal stipulation with reference to the matter was made between the parties. Titius asked for an opinion as to what action he could bring in order to recover from Sempronius the remainder of the interest, after payment of the taxes. The answer was that interest on the money lent was not actually due unless a stipulation had been entered into concerning the same; but in the case stated it should be considered whether the transaction should not be held to be a mandate agreed upon between the parties, rather than a loan at interest, unless the interest collected exceeded six per cent. The action for the recovery of the principal would not, indeed, be based on money loaned; for if Sempronius had either lost the money without bad faith, or had kept it unemployed, it must be said that he would not be at all liable on that ground. Wherefore, it is the safer plan for an action in factum to be granted for the construction of the contract, especially where it is also agreed that if the amount of the taxes exceeds the interest it should be deducted from the principal, which goes beyond the provisions of the law and the terms of the contract for money loaned.

25Ad Dig. 19,5,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 421, Note 13.Marcianus, Rules, Book III. Where anyone furnishes the services of his slave, who is an artisan, to another, in exchange for those of a similar slave belonging to the latter, for the same length of time, proceedings can be instituted by an actio præscriptis verbis, just as in the case where a party gives cloaks in return for tunics. Nor is this inapplicable, if services which were not due should be rendered by mistake, as these cannot be recovered; for in giving one thing in return for another we contract an obligation under the Law of Nations, but where something is given which is not due, either restitution should be legally demanded, or an equal amount of the same thing should be returned, and by neither of these methods can the services above mentioned be recovered.

26Pomponius, On Sabinus, Book XXI. If I gave you some cups with the understanding that you were to return them to me, an action on loan for use will lie. If, however, I gave them to you on condition that you would deliver to me their weight in silver, whatever that might be; a demand for the recovery of this weight must be made by means of an action for the construction of the contract, as well as one for silver of the same fineness as that of which the cups were composed. But, if it was agreed that you should return the cups, or an amount of silver equal to their weight, the same rule will apply.

No translation given.