1Ulpianus, On the Edict, Book X. The following edict is a necessary one, since it is of great advantage to parties who are absent not to be exposed to the loss of possession of their property, or the sale of the same; or the alienation of a pledge; or an action for the recovery of a penalty; or to the loss of their property unjustly through their being unrepresented.

2Ad Dig. 3,5,2ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.ROHGE, Bd. 22 (1878), Nr. 80, S. 341: Rechnungslegung über den Erlös einer unbefugten dramatischen Aufführung.Gaius, On the Provincial Edict, Book III. Where a person has transacted the business of someone who is absent, even though the latter may not be aware of the fact; still, whatever he expends on behalf of the other, or whatever obligation he assumes with respect to the property of the absent party, he will be entitled to a right of action for it upon that ground. Thus, in this instance, a right of action arises on both sides, which is designated an action based upon the transaction of business; and in fact, as it is proper that he who acts for another should give an account of what he has done, and have judgment rendered against him for that reason, whenever he did not transact the business as he should, or retains any property derived from said business; so, on the other hand, it is but just to reimburse him for anything which he either lost, or is about to lose on this account, if he attended to the business properly.

3Ulpianus, On the Edict, Book X. The Prætor makes use of the following language: “Where anyone has transacted the business of another, or attended to any matters in which a party was interested at the time of his death, ‘I will grant him a right of action on this account.’” 1The term “anyone” is to be understood as also referring to women; for women have a right to bring suit based upon business transactions, and there is no doubt that suit can also be brought against them. 2“Transactions” must be understood as meaning one, or several. 3The term “another” refers to individuals of both sexes. 4Ad Dig. 3,5,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 13.Where a ward transacts business, suit can be brought against him to the amount by which he has become more wealthy, in accordance with a Rescript of the Divine Pius; but where he brings suit, he must allow his compensation to be set off. 5If I have transacted the business of an insane person I am, for that reason, entitled to an action against him. Labeo says that a right of action should be granted to the curator of an insane person of either sex. 6These words, “attended to any matters in which a person was interested at the time of his death”; refer to the time during which he transacted anyone’s business after his death; and this it was necessary to state in the Edict, since he could not be said to have transacted the business of the testator who was already dead, nor that of the heir who had not yet entered upon the estate. Where, however, there was any addition to the estate after his death; as, for instance, the children of slaves, the young of animals, or crops, or if any of the slaves had acquired property; although these additions are not embraced in the terms of the Edict, they must, nevertheless, be considered as included therein. 7As this right of action arises from the transaction of business, it is available both for, and against the heir. 8If a party who has been appointed by the Prætor to carry the judgment into execution defrauds me, I will be entitled to an action against him. 9Labeo says, that sometimes in an action founded upon business transacted, the only point to be considered is fraud; for example if, induced by affection, you have interfered in my affairs to prevent my property from being sold, you should only be liable in case of fraud. This opinion is founded on equity. 10Ad Dig. 3,5,3,10ROHGE, Bd. 20 (1877), Nr. 17, S. 54: Actio negotiorum gest. contraria.Not only he who voluntarily, and impelled by no necessity, interfered in the affairs of others, and transacted them, is liable to this action; but also he who, impelled by some urgent necessity, or by the impression that such necessity existed, attended to them. 11The question is raised by Marcellus in the Second Book of the Digest, whether, when I had intended to offer to transact business for Titius, and you ordered me to do so, I would be entitled to both actions? I think that I would, just as Marcellus himself says if I took a surety when about to assume charge of the business; for he holds that under these circumstances as well, I would be entitled to an action against both.

4The Same, On Sabinus, Book XLV. Let us consider whether a surety would have a right of action in this instance, and it is certain that he has a right to bring one on the ground of the business transacted, unless he assumed the obligation entirely through generosity.

5The Same, On the Edict, Book X. Moreover, if I transacted your business while under the impression that you had directed me to that effect; here also a right of action, based upon the transaction of business, arises; but the action on mandate will not lie. The same rule will apply if I become surety for you, thinking that I had been directed by you to do so. 1And also if, while under the impression that the business of Titius was concerned, while in fact it was that of Sempronius, I attend to it; Sempronius alone will be liable to me in an action based on business transacted. 2Julianus states in the Third Book of the Digest, that if I attend to the business of your ward, without your mandate, but to prevent you from being liable in an action of guardianship; I will render you liable to an action on the ground of business transacted and I will also be entitled to one against your ward, but only if he has become more wealthy on this account. 3Ad Dig. 3,5,5,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 8.Moreover, if I lend money to your agent on your account, to enable him to pay your creditor, or release property of yours which is pledged, I will have a right of action against you based on the transaction of business; but none against your agent, with whom I made a contract. But what would be the case if I stipulated with your agent? It can be stated that I have still an action against you, based on business transacted, because I interposed this stipulation by way of superabundance of caution. 4Ad Dig. 3,5,5,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 316, Note 7a.If anyone has received money or other property, in order to bring it to me, I will be entitled to an action against him based on business transacted. 5Ad Dig. 3,5,5,5ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 431, Note 17.Where anyone transacts my business, not through consideration for me but for the sake of profit, Labeo held that he was rather attending to his own affairs than mine; for he aims at his own advantage and not at mine, if he acts for the purpose of personal gain. Nevertheless, there is all the more reason that he should be liable to a suit based on business transacted. If, however, he has expended anything while attending to my business, he will be entitled to an action against me; not for what he has lost, since he was guilty of bad faith in meddling in my affairs, but merely to ascertain the amount by which I am enriched. 6Where anyone is foolish enough to think that while he was transacting his own business, he was attending to mine; no right of action will arise on either side, because good faith will not permit it. And if he transacted both his and my business believing that he was only transacting mine, he will only be liable to me for mine. For if I direct anyone to transact my business, in which you also were interested, Labeo says that it must be held that if he attended to your affairs and was aware of the fact, he is liable to you in an action for business transacted. 7Where anyone, acting as my slave, transacts my business while he was either a freedman, or a freeborn person, a suit founded on business transacted will be granted him. 8If I attended to the affairs of your son or your slave, let us consider whether I shall be entitled to a suit against you on the ground of business transacted? It seems to me to be the better opinion to adopt the doctrine of Labeo which Pomponius approves in the Twenty-sixth Book, namely: if through Consideration for you I have transacted business relating to the peculium of either, you will be liable to me; but if through friendship for your son or your slave, or through consideration for them, I did this; then an action only to the amount of the peculium involved should be granted against the father or the owner. The same rule applies if I thought that they were their own masters, for if I purchase from your son a slave that he does not need, and you ratify the purchase, your ratification is not valid. Pomponius states in the same place that he thinks that even if there is nothing in the peculium because the amount due to the father or owner is greater than its value; still, an action should be brought against the father for the amount by which he is enriched as the result of my administration. 9If I transacted the business of a man who was free, but who was serving you as a slave in good faith, and I did so thinking that he was your slave; Pomponius states that I would be entitled to a suit against you based on business transacted with reference to as much of the peculium of the slave as you can retain; but as to what he can remove, I have no right of action against you, but I have one against him. If, however, I knew that he was free, I should be entitled to an action against him for whatever peculium he could take, and also one against you for whatever you could retain. 10If I pay money to prevent a slave of Sempronius, whom I think belongs to Titius, from being killed; I will be entitled to a suit against Sempronius on the ground of business transacted, so Pomponius says. 11The question is asked by Pedius in the Seventh Book; if I notify Titius, as your debtor, out of court, to pay me when he is, in fact, not indebted to you, and you afterwards learn of it, and ratify what I have done; can you bring an action against me based on business transacted? He says that this may be doubted, because no business of yours was attended to, as the party was not your debtor, but he holds that the ratification makes the affair yours; and just as anyone from whom payment was exacted has a right of recovery granted against him who ratifies the act; in the same manner, he who has paid will be entitled to an action against me after ratification. Thus the ratification makes the affair yours, which was not yours in the beginning, but only transacted on your account. 12He also says that if I, in like manner, bring suit and exact payment from a debtor of Titius, whom I think to be your heir, when in fact, Seius is your heir; and you afterwards ratify what I have done, I will have a right of action against you, and you will have one against me, both based on business transacted. However, this is not your business which has been transacted, but your ratification makes it such; and the result is that the transaction is held to be yours, and suit can be brought against you on the part of the estate. 13What would be the case then, Pedius asked, if I, believing that you were the heir, should repair a house belonging to the estate, and you should ratify my act? Would I be entitled to an action against you? He says that there would be no ground for one, because the heir has become more wealthy through my act, and the transaction has been conducted with reference to the property of another; so it is not possible where a benefit accrues to another by the transaction itself that this should be held to be your business. 14Let us examine the case where a man, while transacting business for another, attended to some matters and neglected others, and another party noticing this, did not take charge of what was neglected, while a diligent man—for this is what we require—would have attended to all these things; should it be held that he ought to be considered liable in a suit based on business transacted, including those things which he neglected? I think this to be the better opinion, for truly if there was anything for which he was undoubtedly responsible, he should by all means be required to give an account of it; for even though he cannot be blamed for not having brought suit against the other debtors, since he had not the power to do so, as he was not authorized to institute any legal proceedings, still, he is to be held responsible for not having paid his own indebtedness; and if the debt did not bear interest it at once begins to be due; as the Divine Pius stated in a Rescript to Flavius Longinus, unless, as he says, he had released him from the payment of interest:

6Paulus, On the Edict, Book IX. Because the office of judge has the same force in bona fide actions, as interrogation has in a stipulation expressly made for the same purpose.

7Ulpianus, On the Edict, Book X. If, however, he who administers the affairs of another belongs to that class who have no need of a mandate, he can be called to account for not having brought suit against a debtor, if a bond for ratification was tendered; provided he could easily give security. This is unquestionably true with respect to a personal debt, and therefore, if the liability of the party was to be terminated at a certain time, and he was released for that reason, he would, nevertheless, be liable in an action based on business transacted. The same rule must be held to apply to a case where an heir is not liable; which was the opinion of Marcellus. 1Ad Dig. 3,5,7,1ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.Moreover, if I bring suit for land which belongs to you, or to a city, and employ improper means while transacting either your business or that of the city, and obtain more profit than I was entitled to; I shall be obliged to refund this to you, or to the city, although I could not have brought an action for it. 2If it happens, under any circumstances, that an account for set-off is not allowed by the court a contrary action can be brought; but if, after examination, the set-off should be rejected, the better opinion is that the contrary action cannot be brought, because the matter has already been judicially decided; and an exception on the ground of res judicata can be interposed. 3Julianus, in the Third Book treats of the following case. “Where one of two partners has forbidden me to transact the business of the partnership, and the other has not, will I be entitled to an action on the ground of business transacted against the partner who did not forbid me? The difficulty lies in the fact that if an action is granted against him, it would be necessary for the one who forbade me to be affected also; and it would be unjust for him who did not forbid me to be released by the act of another; for if I lend money to one partner against the express prohibition of the other, I would have a valid claim upon the former; and I think with Julianus that it should be held that an action on the ground of business transacted will lie against him who did not forbid me, so that he who did, shall not suffer loss in any respect, either through his partner, or through him who transacted the business.

8Scævola, Questions, Book I. Pomponius says that if I approve of any transaction by you, even though it was badly done, still, you will not be liable to me on the ground of business transacted. It must be taken into consideration if it is not true that, so long as it is doubtful whether I will ratify it or not, the right of action based on business transacted is in abeyance; for, when it has once accrued, how can it be annulled by the mere will alone? He holds, however, that this is only true when you are not guilty of any bad faith. And Scævola states that even if I ratified what had been done, an action on the ground of business transacted will still lie; and where it is said that you are not liable to me, this is because I cannot disapprove of what I have once agreed to; and just as anything which has been properly done must be considered by the court as ratified, so, also must whatever has been approved by the party himself. Moreover, if no action based on business transacted will lie where I have given my approval, what must be done if the other party collects money from my debtor, and I approve of it? How can I recover it? And, also, suppose he has sold property belonging to me, how then can he recover any expense which he has incurred? For, as there is no mandate, an action based on business transacted will lie, even after ratification.

9Ulpianus, On the Edict, Book X. But is an action granted me also for the expenses which I have incurred? I think that this is the case, unless it has been expressly agreed that neither party should have an action against the other. 1Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient if he conducted the business properly even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also adopted; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus very properly ridicules this opinion; for he states that the party who transacts business in a suitable manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household. What Julianus wrote is applicable where he who repairs a house or cures a sick slave is entitled to an action based on business transacted, if what he does is an advantage, even if the general result was not beneficial. I ask what must be done if he thought he was acting advantageously, but it did not profit the head of the household? I say that he will not be entitled to an action based on business transacted, for the beginning ought to be advantageous, even though we do not consider the result.

10Ad Dig. 3,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 4; Bd. II, § 430, Note 5.Pomponius, On Quintus Mucius, Book XXI. If you transact the business of an absent party without his knowledge, you should be responsible both for negligence and fraud; but Proculus is of the opinion that you ought sometimes to be responsible for accidents, as for instance, where you attend to some new business in the name of the absent party which he was not in the habit of transacting, for example, by purchasing new slaves, or by engaging in some other enterprise, for if any loss to him resulted therefrom, you would be responsible; but any profit would belong to the absent party, and where profit accrued in some instances, and loss was sustained in others, the absent principal should set off the profit against the loss.

11Ulpianus, On the Edict, Book X. This action should be granted to the successor of a person who dies in the hands of the enemy, and to whom the business belonged. 1Where I have acted for a son under the control of his father, and who died in the service after making a will, an action should likewise be granted. 2It is also sufficient for business to be transacted advantageously in the case of persons who are living, as well as with reference to property left by those who are dead; even though the result may be different from what was expected.

12Paulus, On the Edict, Book IX. My debtor who owed me fifty aurei died. I undertook the care of his estate, and expended ten aurei. I then deposited in a chest a hundred aurei which were the proceeds of the sale of property belonging to the estate, and this sum was lost without my fault. The question arose whether, if an heir should appear, I could bring an action against him for the sum of fifty aurei which I had lent, or for the ten which I had expended? Julianus says that the question which we should consider depends upon whether I had good reason for putting aside the hundred aurei; for, if I should have paid myself and the other creditors of the estate, I ought to be responsible not only for the sixty aurei, but for the remaining forty as well. I might, however, retain the ten which I expended; that is to say, I should only pay over ninety. If, however, there was good reason for putting aside the entire sum of a hundred; as, for instance, if there was danger that land forming part of the estate would be forfeited for taxes; or that the penalty for money borrowed on bottomry would be increased; or that payment would be required on account of an award; I could collect from the heir not only the ten aurei which I had expended in connection with the business of the estate, but also the fifty which were due to me.

13Ulpianus, On the Edict, Book X. Where the son of a family volunteers to transact the business of others, it is only just that an action should be granted against his father also, whether the son has property of his own, or whether his father has profited by his acts. Where a female slave has had charge of the business, the same rule applies.

14Paulus, On the Edict, Book IX. Pomponius states in the Twenty-sixth Book that, where business is transacted, the condition of the parties must be considered in the beginning; for, as he says: “Suppose I begin to transact the affairs of a minor who, in the meantime, arrives at the age of puberty? Or of a slave, or of the son of a family, and, in the meantime, he becomes free, or the father of a family?” I, myself, have stated that this is the better opinion, unless, in the beginning, I have only undertaken to attend to a single matter of business, and afterwards I have taken charge of another, with a different intention, at the time when the party either arrived at puberty, or became free, or the father of a family; for here several things, so to speak, were attended to, so that the action, as well as the judgment, will be arranged and regulated in accordance with the condition of the parties.

15The Same, On Plautius, Book VII. When anyone transacts my business, there are not several different matters but only one contract; unless, in the beginning, the party undertook to do only one thing, and to retire when it was finished; for in this case if he undertook to do anything else after having changed his mind, there is a new contract.

16Ulpianus, On the Edict, Book XXXV. Where a party performed an act while in slavery, he is not compelled to render an account of it after being manumitted. When, however, such a connection between the transactions exists that the account of what was done in slavery cannot be separated from the acts performed in freedom; it is settled that what was done in slavery can be brought into court in an action on mandate, or on business transacted. For if while he was in slavery, the party purchased land, and built a house upon it, and the house fell down, and then, after he was manumitted, he should rent the ground, the lease of the land would only be included in the suit based on business transacted, for the reason that nothing more arising from the transactions of previous date could be included; unless the account of the business done during the time that the party was free cannot be made up without it.

17Paulus, On the Edict, Book IX. Proculus and Pegasus are of the opinion that a person who began to transact business while in slavery, must act in good faith; and therefore, the amount which he would have been able to make if some one else was managing his business, he must, as he did not exact it from himself, pay it over to his principal in an action based on business transacted; if his peculium amounted to so much that by retaining it, he could have made that sum. Neratius is of the same opinion.

18The Same, On Neratius, Book II. Even if he had no peculium, but was a debtor by nature and afterwards continued to act, he is bound to pay, himself; just as he who is liable in an action which would be barred by lapse of time, is also compelled by a suit based on business transacted to pay his principal, after the time has expired. 1Our Scævola says that he thinks the statement of Sabinus that the account ought to be rendered from the beginning should be understood to mean that it ought to show what was left at the time when the party first became free, and not that he should be held liable for any malice or negligence of which he was guilty while in slavery; and, therefore, if it is ascertained that, while he was in slavery, he expended money in an improper way, he should be released from liability. 2Ad Dig. 3,5,18,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 431, Note 2.If I direct a freeman who is held as a slave by me in good faith to perform some act; Labeo thinks that I would not be entitled to an action on mandate against him; since he is under restraint by reason of his servile condition; hence an action based on business transacted will lie, because, on the one hand, he had a desire to attend to my affairs, and on the other, he was in a position where I could compel him to attend to them. 3While you were transacting my business during my absence, you, without knowing it, purchased property which belonged to me; and, being still ignorant of this fact, you acquired its ownership by prescription. You are not obliged to restore it to me in an action for business transacted; but if, before you obtained its ownership by prescription you had learned that the property was mine, you must employ someone to bring suit against you for it in my name, so that he may recover it for me, and give you an opportunity to enforce your stipulation against eviction; and you will not be considered guilty of fraud in the employment of this person, since you should do this to avoid being liable in an action on business transacted. 4In an action based on business transacted, we must not only pay the principal, but, also the interest collected from the money of the other party, or even which we might have collected. On the other hand, also, we can by means of this action recover interest which we have paid, or interest which we might have collected on our own money, and which was expended in the business of the other party. 5I transacted the business of Titius while he was in the hands of the enemy; after his return I have a right of action against him based on business transacted, even though at the time when this was done he was not acting as principal.

19Ulpianus, On the Edict, Book X. But if he should die while in the hands of the enemy, both the direct action, and the counter action based on business transacted, will lie for, and against his successor.

20Paulus, On the Edict, Book IX. Servius was of the opinion, as is stated by Alfenus in the Thirty-ninth Book of the Digest, that when three men were captured by the Lusitanians, and one of them was released on condition of his bringing a ransom for all three, if he did not return, the two others would be required to pay a ransom for himself also; and he having refused to return, and for this reason, the others having paid his ransom, as well as their own, Servius answered that it was just for the Prætor to grant them an action against him. 1Where one transacts business relating to an estate, he binds the estate to a certain extent to himself, and himself to the estate; and therefore, it makes no difference whether a minor heir to the estate exists, because the debt, together with the remaining burdens of the estate devolves on him. 2If, during the lifetime of Titius, I began to manage his business, I should not cease to do so when he dies. I am not obliged, however, to begin anything new, but it is necessary to finish what has been commenced, and to take care of it; as occurs when a partner dies, for so far as anything is done for the purpose of terminating business already begun is concerned, it makes no difference at what time it was finished, but it does at what time it was commenced. 3Ad Dig. 3,5,20,3BOHGE, Bd. 1 (1871), S. 253: Haftung aus der Ueberweisung eines Arbeiters zu einer nicht übernommenen Leistung.Lucius Titius attended to my business by your order; if he did not do so properly, you will be liable to me in an action based on business transacted, not only to force you to assign your rights of action against him, but also because you have acted imprudently in selecting him, and you must indemnify me for any loss incurred through his negligence.

21Gaius, On the Provincial Edict, Book III. Where anyone, while transacting the business of an estate, or that of individuals, purchases property because it is necessary, he can bring an action based on business transacted for what he expended, even though the property was destroyed; for example, where he procured grain, or wine for slaves, and it was lost by some accident, such as fire, or the fall of a house. It should, however, be understood that the said fall, or fire must have occurred without his fault; for if he should have judgment rendered against him on account of either of said accidents, it would be absurd for him to be able to recover anything on account of the property destroyed.

22Ad Dig. 3,5,22ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.Paulus, On the Edict, Book XX. Where anyone, while transacting the business of another, has collected a debt which was not due, he can be forced to make restitution; but where he, in the course of the business, has paid a debt which was not due, it is the better opinion that he must blame himself for it.

23Ad Dig. 3,5,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 74, Note 4a; Bd. I, § 155, Note 9.The Same, On the Edict, Book XXIV. If I pay money to an agent, with the intention that it shall belong to my creditor, the ownership of the same is not acquired by the creditor through the agent; the creditor, however, can, by ratifying the act of the agent, make the money his own, even against my consent; for the reason that the agent in receiving it only attended to the business of the creditor, therefore, I am discharged from liability by the ratification of the creditor.

24The Same, On the Edict, Book XXVII. Where anyone, while transacting business for another expends more than he should have done, he can recover from his principal the amount which he ought to have paid.

25Modestinus, Opinions, Book I. Where an estate left to a municipality in trust was ordered to be delivered, the magistrate appointed Titius, Seius, and Gaius as being suitable agents for the management of the property. These agents subsequently divided the administration of the estate among themselves, and did so without the authority or consent of the magistrates. Sometime afterwards, the will containing the trust under which the estate was to be turned over to the municipality, was proved in court to be void; and Sempronius appeared as the heir-at-law, ab intestato, of the deceased, but one of the aforesaid agents died insolvent, and without leaving an heir. I ask if Sempronius should bring suit against these agents of the estate, who would assume the risk caused by the insolvency of the deceased agent? Herennius Modestinus answered that the action based on business transacted could not be employed against anyone of the agents on account of what he alone had done, and that any loss must be borne by him who claimed the estate as heir-at-law.

26The Same, Opinions, Book II. Two brothers, one of age, and the other a minor, owned an unproductive tract of land in common. The older brother erected large buildings on the tract where the residence of his father stood, and when he divided the land with his brother, he claimed that he should be paid for what he had expended, since the property had been improved by what he had done; his younger brother having at that time become of age. Herennius Modestinus answered that he for whom the inquiry was made had no right of action on account of expenses incurred, when there was no necessity for them, and where they had been made only for the sake of pleasure. 1I gave it as my opinion that if Titius brought up his niece through affection for his sister, no action would lie against her on this ground.

27Ad Dig. 3,5,27ROHGE, Bd. 17 (1875), Nr. 21, S. 78: Legitimation des Verkäufers, der den Speditionsvertrag in eigenem Namen geschlossen, den dem Käufer aus der Nichterfüllung entstandenen Schaden als seinen eigenen einzuklagen.ROHGE, Bd. 18 (1876), Nr. 22, S. 97: Begründung des Anspruchs des Postfiskus auf Ersatz aus dem Verluste eines Geldbriefbeutels. Berufung auf die Verbindlichkeit, dem Absender Ersatz zu leisten.Javolenus, On Cassius, Book VIII. Where anyone has transacted the business of Seius by the direction of Titius, he is liable to Titius in an action of mandate, and in the action the amount of the interest of both Seius and Titius should be taken into consideration; the interest of Titius, however, must be determined by the amount he has to pay Seius, to whom he is liable either on mandate, or for business transacted. Titius has a right of action also against the party whom he directed to attend to the affairs of another, before he himself pays anything to his principal; because he is held to have lost the amount for which he was liable.

28Ad Dig. 3,5,28ROHGE, Bd. 15 (1875), Nr. 19, S. 48: Interesse, der Betrag, den der Beschädigte einem Dritten hat bezahlen müssen.Callistratus, Monitory Edict, Book III. Where a father by his will, appointed a guardian for his posthumous son, and the guardian, in the meantime, administered the guardianship, and the child was not born; an action will lie against him, not on the ground of guardianship, but on that of business transacted; but if a posthumous child should be born, there will be an action on guardianship, and this would include both terms of administration, the one before the child was born, and the one afterwards.

29Ad Dig. 3,5,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 16.Julianus, Digest, Book III. An inquiry was made with respect to the following fact. A certain man was appointed by the resolution of a municipality to purchase wheat, and another person who was appointed to act under him as a subordinate curator spoiled the wheat, by mixing other grain with it. The price of the wheat which was bought for the municipality was charged to the curator; what kind of an action could the curator bring against the subcurator, so that he might be reimbursed for the loss which he had sustained on his account? Valerius Severus answered that a guardian has a right of action against his fellow-guardian, on the ground of business transacted and, he also stated that the same right of action is granted one magistrate against the other; provided, however, that he was not aware of the fraud. In accordance with these opinions it must be said that the same rule applies to a subcurator.

30Ad Dig. 3,5,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 8.Papinianus, Opinions, Book II. A certain man directed a freedman or a friend to borrow money, and the creditor, on the faith of the letter, made the agreement, and the surety was given. In this instance, although the money was not expended upon property, still an action is granted to the creditor or his surety, against the party, on the ground of business transacted; which certainly bears a resemblance to the Actio Institoria. 1A man who was transacting business for Sempronius, ignorantly attended to a matter in which Titius was interested. He will be liable to Sempronius also, on account of this particular matter, but he can make an application to the court for a bond of indemnity against Titius, to whom a right of action is granted. The same rule applies to the case of a guardian. 2Where a case was ready to be heard, and the defendant did not appear, a friend of his voluntarily took his place, and stated the cause of his absence to the court. The latter will not be considered to have been guilty of negligence, if he did not appeal where a judgment was rendered against the party who was absent. Ulpianus says in a note, that this is correct, because the first party in default lost his suit; but where a friend defends an absent person and permits judgment to be taken against him, and brings suit on the ground of business transacted, he will be rendered liable, if he does not appeal when he could do so. 3A person who transacts the business of another is obliged to pay interest on any money in his possession, after the necessary expenses have been settled. 4A testator stated that his freedman should be paid a certain sum of money for the expense of erecting a monument; and if anything beyond that amount was expended, suit cannot be brought for it on the ground of business transacted, or on that of a trust, since the wish of the testator established a limit to the expenditure. 5The heir of a guardian, who is a boy under the age of puberty, is not liable for matters attended to by his guardian with reference to the property of the female ward of his father; but the guardian of the boy may be sued in his own name on the ground of business transacted. 6Although a mother may transact the business of her son in accordance with the will of his father, through the inducement of natural affection; still, she will not have authority to appoint an agent, at her own risk, for the purpose of instituting legal proceedings, because she cannot herself legally act in behalf of her son, or alienate her property, or discharge a debtor of the minor by accepting payment. 7Where one party defended a case in which a common right of water was involved, and judgment was rendered in favor of the owner of the land; he who paid the necessary, reasonable expenses in the case where both were interested, will be entitled to an action on the ground of business transacted.

31The Same, Opinions, Book III. A surety, through inexperience, received pledges or securities relating to another contract in which he was not interested, and paid both debts to the creditor, thinking that he could obtain indemnity by combining the securities. On account of this, a suit on mandate brought against him would be of no effect, and he himself could not bring suit against the debtor, but it would be necessary for each of them to sue the other on the ground of business transacted. In the trial of this it will be sufficient to take into consideration the negligence, but not the accident, for the reason that a surety is not considered to be a robber. The creditor in this instance, cannot be held liable in an action of pledge for the restitution of the property as he seems to have sold his right. 1Where a mother has received from a man who is betrothed to her daughter gifts for the latter of which the girl is ignorant; an action on mandate or deposit does not lie in her favor, but one can be brought on the ground of business transacted.

32The Same, Opinions, Book X. The heir of a deceased husband cannot bring suit against his wife (who during marriage had the property of her husband under her control) for plundering an estate; and he will act more wisely if he should sue her for production of property on the ground of business transacted, if she actually attended to the affairs of her husband.

33Paulus, Questions, Book I. Nesennius Apollinaris to Julius Paulus, Greeting. A grandmother transacted the business of her grandson, and after the death of both of them the heirs of the grandmother were sued by the heirs of the grandson in an action based on business transacted, but the heirs of the grandmother filed a claim for support furnished the grandson. Answer was made to this that the grandmother had furnished it out of her own property through natural affection, since she had not asked that the amount of the maintenance should be fixed, and that it had not been fixed; and moreover, it has been established that if the mother had furnished maintenance she could not recover that which he had provided out of her own property under the inducement of natural affection. On the other hand, it was stated, and I hold it to be correct, that this is the case where it is proved that a mother had furnished maintenance out of her own property; but in the present instance it is probable that the grandmother who transacted the business of her grandson supported him out of his own property. It was a subject of discussion as to whether the expense should be considered as having been paid out of both estates, and I ask what seems to be the more just conclusion? I answered that the decision in this instance depends upon the facts. For I am of the opinion that what has been established in the case of the mother should not always be observed; for what would be the effect if the mother had positively stated that when she was supporting her son, she did so in order to bring an action either against himself or his guardians? Suppose, for instance, that his father had died far from home, and that his mother, while returning to her country had supported her son and the slaves; in this instance the Divine Pius Antoninus established the rule that a suit on the ground of business transacted could be granted against the minor himself. Therefore, as the question is one of fact, I think that the grandmother or her heirs should be heard if they wish an accounting for maintenance, and especially so if it appears that the grandmother had entered the items in the expense account. I think that it by no means should be admitted that the expenses should be charged to both estates.

34Scævola, Questions, Book I. Where a husband has transacted the affairs of his wife after a divorce has taken place, her dowry can be recovered not only by an action for dowry, but also on the ground of business transacted. This is the case where the husband was able to deliver the dowry while he was attending to the business; otherwise, he cannot be made responsible, for not exacting it from himself; but after he has lost his property, a full right of action on the ground of business transacted will lie against him; although if the husband is sued in an action for dowry he must be discharged. But in this instance a limit should be fixed, so if the statement of the complaint is: “As far as he was able although he afterwards lost his property”; where he was able to pay her during that time; for he was not guilty of wrong-doing, so far as his duty was concerned, if he did not immediately sell his property in order to obtain the amount, for he must have allowed some time to pass during which he appeared not to have done anything. If, in the meantime, before he had fulfilled his duty, the property was lost, he is not liable on the ground of business transacted any more than if he had never been able to pay the money. But where the husband is able to pay, an action founded on business transacted is permitted because there is danger if he ceases to be solvent. 1I do not think that a man who transacts the business of a debtor is bound to restore to him a pledge when he still owes the money, and there is no other way in which it can be paid. 2The action for the rescission of a contract does not belong to the class of actions based on business transacted, and is barred after six months have elapsed, if the party did not find the slave among the assets of the other; or, if he did find them, did not find, and therefore did not recover, certain additional property which belonged under the head of accessions, so that the slave was less valuable, or any thing that was acquired through the slave which was not derived from the property of the purchaser; and there was not enough obtained from the business of the purchaser for the vendor to satisfy his claim. 3Moreover, if the person who is transacting the business owes his principal on some other ground, and the obligation is one of long time, and the party is wealthy, he cannot be blamed for not paying the debt; that is, provided the payment of the interest does not give rise to complaint. The rule is different in the case where a guardian is a debtor to his ward, because there the latter was interested in the payment of the former debt, as he then might bring suit for the debt on the ground of guardianship.

35Paulus, Questions, Book IV. Where a man who is free, but serves me in good faith as a slave, has borrowed money and employed it for my benefit, let us consider by what action I must restore what he expended in my behalf; as he transacted the business for me not as a friend, but as his owner. An action based on the ground of business transacted should be granted, and this ceases to be proper as soon as his creditor is paid.

36The Same, Opinions, Book I. Where the business of a ward has been transacted without the authority of his guardian, it is customary to inquire, at the time issue was joined in the case, whether the ward has become enriched by the matter on account of which suit was brought against him. 1Where anyone transacts business for another in which money is involved, he is compelled also to pay interest and assume the risk in such investments, as he himself has contracted; except where, through accidental circumstances, the debtors have lost so much of their money that at the time when issue was joined in the suit they became insolvent. 2Where a father has charge of property belonging to his emancipated son and which he has given him, he is liable to a suit on the ground of business transacted.

37Tryphoninus, Disputes, Book II. A man who owed a debt which did not bear interest transacted the business of his creditor, and the question arose whether he could be compelled to pay interest on the above-mentioned sum by a suit based on business transacted. I stated that he would owe interest if he had been required to collect it for himself, but if the day for payment had not arrived at the time when he was transacting the business, he would not be compelled to pay interest; but if the time had elapsed, and he did not include the money owed by himself in the accounts of the creditor whose business he was transacting, he certainly would be compelled to pay interest in a bona fide action. Let us see what interest he would owe, whether it would be that on which the same creditor would loan money to others, or would it be the highest rate? It is true that anyone who converts to his own use the money of a party whose guardianship or business he has charge of, or if a magistrate appropriates the money of a municipality, he must pay the highest rate of interest, as has been established by the Divine Emperors. But it is different in this instance, where a party did not appropriate money from the business which he was transacting, but borrowed it from a friend before he assumed the administration of the latter’s affairs; for those to whom the above rule has reference were obliged to show good faith without compensation, at all events such as was absolute and without any profit whatever; and where they appear to have abused their privileges they are forced to pay the highest rate of interest by way of a kind of penalty; but this party received property as a loan in a legal way, and is liable to interest because he did not pay the principal, and not because he appropriated to his own use money derived from the business which he was transacting. It makes a great deal of difference whether the indebtedness has just begun to be incurred, or whether it was done previously, because in the latter instance this is enough to make a debt bear interest which did not do so before.

38Ad Dig. 3,5,38ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.Gaius, On Verbal Obligations, Book III. Where anyone pays a debt for another, even though the latter is unwilling, or ignorant of the fact, he discharges him from liability; but where money is owing to anyone, another cannot legally exact it without the consent of the former; for both natural reason and the law have established the rule that we may improve the condition of a man who is ignorant and unwilling, but we cannot make it worse.

39Paulus, On Sabinus, Book X. If I have a house in common with you and give security for the prevention of threatened injury for your part of said house; it must be stated that what I pay by way of damage I can sue you for rather on the ground of business transacted than on that of a common division of expense; because I was able to protect my own share without being forced to protect that of my partner.

40The Same, On the Edict, Book XXX. Where anyone has defended my slave in a noxal case, and I was ignorant of the fact, or absent, he will have a right of action against me for the entire amount on the ground of business transacted, and not one based on peculium.

41The Same, On the Edict, Book XXXII. If you undertake the transaction of my business at the request of my slave, and have done this merely at his suggestion, a suit based on business transacted will arise between us; but if you do so under the direction of my slave, it has been held that you can bring suit, not only to the extent of the peculium, but also on the ground of its having been for my benefit.

42Ad Dig. 3,5,42ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Labeo, On the Last Epitomes by Javolenus, Book VI. When you pay money in the name of a party who did not specially direct you to do so, you will be entitled to an action based on business transacted; since by that payment the debtor was discharged by his creditor, unless the debtor had some interest in not having the money paid.

43Ulpianus, Disputations, Book VI. Where a man induced by friendship for their father makes an application for the appointment of a guardian for minors, or takes measures for the removal of guardians who are suspected, he has no right of action against said minors, according to a Constitution of the Divine Severus.

44The Same, Opinions, Book IV. Where an expenditure of money is advantageously made by some one while transacting the business of another, which includes expenses honorably incurred to secure public offices which are obtained by degrees; the sum expended can be recovered by an action based on business transacted. 1Where slaves have received their freedom absolutely by will, they are not compelled to give an account of the matters which they transacted during the lifetime of their master. 2Titius, being under the impression that his sister was the testamentary heir of the deceased, paid a debt to the creditors of the estate. Although he did this with the intention of transacting the business of his sister, he was in fact doing it for the children of the deceased who would be the proper heirs of their father if there had been no will; and, because it is just that he should not be subjected to loss, it is established that he can recover what he has paid by a suit based on business transacted.

45Africanus, Questions, Book VII. You directed my son to buy you a tract of land, and when I heard of it I myself bought the land for you. I think it should be considered with what intention I made the purchase; for if I knew it to be on account of something which was necessary to you, and also it was your will that you would be glad to have the purchase, a right of action based on business transacted arises between us; as there would be if there had been no mandate of any kind, or if you would have ordered Titius to make the purchase, and I had made it because I could attend to the matter more conveniently. If, however, I made the purchase to prevent my son from being liable to an action on mandate, it is the better opinion that I could bring an action on mandate against you in his behalf, and you would be entitled to an action de peculio against me; because, even if Titius had executed a mandate, and, to prevent his being held liable on that account, I had made the purchase, I could bring an action against Titius on the ground of business transacted, and he could bring one against you, and you one against him, on mandate. The same rule applies if you ordered my son to be surety for you, and I become surety for you myself. 1If the suggestion is made that you have ordered Titius to become your surety, and for some reason he, having been prevented from doing so, I become your surety in order to release him from his promise, I will be entitled to an action based on business transacted.

46Paulus, Sentences, Book I. An action based on business transacted is granted to him who is interested in having a case of this kind brought. 1It makes no difference whether a party brings suit by a direct or other action, or whether suit is brought against him; (since in extraordinary proceedings where the use of formulas is not observed this distinction is superfluous), especially where both these actions have the same force and effect.

47Papinianus, Questions, Book III. Where a brother, who transacts the business of his sister without her knowledge, stipulates for her dowry with her husband; an action can legally be brought against him on the ground of business transacted to compel him to release her husband.

48Ad Dig. 3,5,48ROHGE, Bd. 15 (1875), Nr. 69, S. 247: Zahlung einer fremden Schuld. Voraussetzung des Anspruchs gegen den befreiten Schuldner.ROHGE, Bd. 22 (1878), Nr. 80, S. 341: Rechnungslegung über den Erlös einer unbefugten dramatischen Aufführung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 10; Bd. II, § 431, Note 18.Africanus, Questions, Book VIII. Where a slave whom I have sold steals something from me, his vendor, and the purchaser sells the article, and then it ceases to exist, an action for the price should be granted me on the ground of business transacted; as would be the case if you had attended to some business which you thought to be yours, when in fact it was mine; or, on the other hand, you would be entitled to an action against me if, where you thought an estate belonged to you when it in fact belonged to me, you delivered to some person property of your own which had been bequeathed to you (since the payment of the legacy in this instance would release me).