Ad Dig. 13,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 7.Gaius, On the Provincial Edict, Book IX. Where an action is brought for some kind of merchandise which should have been delivered on a certain day, for instance, wine, oil, or grain; Cassius says that the damages should be appraised in accordance with what the property would have been worth on the day when it should have been delivered, or if the day was not agreed upon, then, according to its value when issue was joined. The same rule applies with reference to place, so that the valuation should first be made with reference to the place where the property should have been delivered, but where there was nothing agreed upon with reference to place, then the place where the action was brought should be taken into consideration. This law also applies to other matters.

Gaius, On the Provincial Edict, Book IX. It was formerly held that a party did not have the power to bring suit in any other place than that where he had stipulated that the property which was the subject of the action should have been delivered; but, because this would be unjust, if the promisor never came to the place where, according to what he promised the property was to be delivered, (either because he failed to do so purposely, or for the reason that he was unavoidably detained elsewhere) and hence the stipulator could not obtain what belonged to him; it, therefore, seemed proper that an equitable action should be provided for this purpose.

Gaius, On the Provincial Edict, Book IX. This action is submitted to the decision of the judge for the reason that the prices of articles vary in different cities and provinces, and especially those of wine, oil, and grain; and so far as money is concerned, although it might seem to have one and the same power everywhere, still, in certain localities it is more easily obtained and at a lower rate of interest than in others, where it is harder to get and the rate of interest is heavy.

Gaius, On the Provincial Edict, Book IX. Ad Dig. 13,6,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.Where property is lent, the same diligence must be exercised as any very careful head of a household employs with reference to his own property, so that he is not responsible for an accident, except those that cannot be resisted; as, for instance, the deaths of slaves which occur without malice or negligence on his part, attacks by robbers and enemies, the stratagems of pirates, shipwrecks, fires, and the escape of slaves whom it is not usual to keep under guard. With reference to what we have stated concerning robbers, pirates, and shipwreck, we must understand this to mean that where property has been lent to a man in such a way that he can take it with him on a journey; if, however, I should lend silver plate to anyone because he said that he was going to invite some friends to supper, and he takes it out of the country with him, there is no doubt that he will be responsible for anything that happens through the acts of pirates and robbers, or by reason of shipwreck. This is the case where the property was lent only as a favor to the borrower, but if it was done for the benefit of both parties, for example, where we invited a common friend to supper, and you take it upon yourself to manage the affair, and I lend you the plate; I am aware that certain authorities hold that you are only responsible for bad faith, but it should be considered whether you are not also liable for negligence, for the determination of negligence is ordinarily made on the same principle as where property is given in pledge or as dowry. 1Where property is pledged, loaned, or deposited, and it is deteriorated by the act of the party who received it, not only the actions which we have mentioned will lie, but also that under the Lex Aquilia; but where any one of these is brought, the right to the others will be extinguished. 2There may be good cause for an action to be brought against the person who lends the property; as, for instance, where this is done for expenses incurred, on account of the health of the slave, or for seeking him and bringing him back after he has run away; but the expenses of his maintenance must be borne by the party who received him in order to use him in accordance with natural law. But with reference to what we have stated concerning any expenses incurred on account of the health or the flight of the slave, this only applies to expenses which are larger in amount; for the better opinion is that moderate expenses, as, for instance, those of his support, must be borne by the same individual. 3Moreover, where anyone lends vessels which are defective, and the wine or oil which is put into them is spoiled, or runs out, judgment must be rendered against him on this account. 4Ad Dig. 13,6,18,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 350, Note 10.Again, wherever a man can recover anything by a counter action he can retain it by the right of set-off, even when the direct action is brought against him. It may happen that what a party can recover on his part is of greater amount; or the judge may refuse to take the set-off into consideration; or proceedings are not instituted against him to obtain restitution of the article lent, because it has been destroyed by accident, or has been returned without judicial proceedings; so we say that a counter action is necessary.

Gaius, On the Provincial Edict, Book IX. But if he is ready not to pay but to give satisfaction in some other way, for instance, if he wishes to give another debtor in his stead, this will be of no advantage to him.

Gaius, On the Provincial Edict, Book IX. Or if the management of the entire property or the party who was accustomed to borrow money on pledges has been entrusted to him.

Ad Dig. 14,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Gaius, On the Provincial Edict, Book IX. In order that a person who contracted with one may not be obliged to divide his claim among several adversaries,

Ad Dig. 14,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 330, Note 12.Gaius, On the Provincial Edict, Book IX. In the same form in which the agent made the contract, provided he cannot protect himself in any other way.

Gaius, On the Provincial Edict, Book IX. For many persons appoint boys and girls for the management of shops.

Gaius, On the Provincial Edict, Book IX. An action will, nevertheless, be granted against him to the extent that he has pecuniarily profited by the transaction.

Gaius, On the Provincial Edict, Book IX. It is sometimes more expedient for parties to bring suit by the action De peculio than by the Tributorian Action, for in the one of which we are treating that alone is subject to division which forms part of the merchandise with which the business is transacted, and whatever has been received on account of the same; but, in the action De peculio the entire amount of the peculium (in which also the merchandise is included) must be taken into consideration, and it may happen that the business is being conducted perhaps with a half, or a third, or even a smaller portion of the peculium; and it also may happen that nothing is owing by the party to his father or owner.

Gaius, On the Provincial Edict, Book IX. The Proconsul takes every precaution to enable one party who has contracted with another that is under the control of a third, where the above mentioned actions (that is to say the exercitorian, the institorian, and the tributorian) do not apply, to still obtain his rights, so far as circumstances permit, on the grounds of equity and justice. For if the business was transacted by the order of the party under whose control the person in question is, he promises an action for the entire amount with reference to the same; but if this did not take place under his direction, but he, nevertheless, profited by it, the Proconsul introduces an action to the extent to which this has been done, and if neither of these conditions exist, he establishes an action for the amount of the peculium.

Gaius, On the Provincial Edict, Book IX. If we enter into a stipulation with a son under paternal control, for the payment of a loan made to a third party for the purpose of renewal, Julianus says that the Decree of the Senate will be no impediment.

Gaius, On the Provincial Edict, Book IX. If, however, the first action on the peculium is still in suspense, and judgment is rendered in the subsequent action, no account of the first action should be taken in any way in the decision of the second; because the position of the first creditor in an action on the peculium is the better one, for, not he who first joined issue, but he who first obtained a decision of the court, is held to be entitled to the preference.

Gaius, On the Provincial Edict, Book IX. The action on the peculium is granted on account of both female slaves, and daughters under paternal control, and especially where the woman is a tailoress or a weaver, or conducts any ordinary trade, this action can be brought against her. Julianus says that the action on deposit, and also that on loan for use, should be granted with reference to them, and that the contributory action should be granted if they have transacted business with merchandise belonging to the peculium to the knowledge of the father or the master. This is still more certain where property has been employed for the benefit of the father or master, and the contract was made under his direction. 1It is established that the heir of the master should also deduct such property belonging to the estate as the slave, on whose account suit on the peculium is brought against him, had either removed, consumed, or damaged before the estate was entered upon. 2Where a slave has been alienated, although the Prætor promises an action on the peculium within a year, against the party who alienated him, still, an action is granted against the new master; and it makes no difference whether he has acquired another peculium with him, or whether he has granted to the same slave what he bought or received as a gift along with him at the time. 3It has also been decided (and Julianus approves of it) that creditors are, in any event, to be allowed to bring suit either for shares against individuals, or against any one party for the entire amount. 4Julianus, however, does not think that the party who sold the slave should be permitted to bring an action on the peculium against the purchaser with reference to what he lent to the slave before the sale. 5Moreover, if I make a loan to the slave of another, and buy him, and then sell him, he also does not think that an action should be granted me against the purchaser. 6He holds, however, that an action should be granted to me against the vendor, but only within a year to be computed from the day of the purchase, for the amount which I loaned him while he still belonged to another, that being deducted from what the slave has, as peculium, with reference to me. 7But as Julianus does not think that when he has been alienated, an action should be granted to me against the purchaser, with reference to what I myself have lent to my own slave; so also he denies that I should be allowed to institute proceedings against the purchaser on account of what my own slave has lent to another of my own slaves, if he to whom the loan was made has been alienated. 8Ad Dig. 15,1,27,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 16.Where anyone has contracted with a slave belonging to two or more persons, he should be allowed to bring suit for the entire amount against anyone of the owners he wishes; for it is unjust that he who contracted with one should be obliged to divide up his action against several adversaries, and an account should be taken not only of the peculium which the said slave has with reference to the party against whom proceedings are instituted, but also of that in which the other owner or owners are interested. No loss, however, will result from this to the party against whom judgment was rendered, as he can himself recover from his partner or partners by the action of partnership, or by that for the division of common property, whatever he has paid over and above his share. Julianus says that this will apply where the other owner was entitled to any peculium, for, in this instance, each one, by paying, will be held to have released his partner from debt; but where there is no peculium in which the other is interested, the contrary rule applies, because he is not understood to release him from debt in any way.

Gaius, On the Provincial Edict, Book IX. Where anyone has, by will, ordered that a slave shall be free, and has left as heirs persons who have contracted with said slave, the coheirs may proceed against one another by the action De peculio, for each one is liable to anyone else who brings suit for the amount of the peculium to which he is entitled. 1Even though a master prohibits a contract to be made with a slave, an action on the peculium will lie against him.

Gaius, On the Provincial Edict, Book IX. But it must be said that the position of the more diligent party should be the better one, for it is unjust that the master should have judgment rendered against him in favor of both on the ground of the employment of property for his benefit.

Gaius, On the Provincial Edict, Book IX. If a son under paternal control or a slave purchases land for his father or master, this will be held to have been employed in his affairs; but in this way, that, if it was worth less than the sum for which it was purchased, it would be held to have been employed in his business to the amount of what it is worth; if, however, it is worth more, no greater sum will be held to have been employed for that purpose than that for which it was purchased.

Gaius, On the Provincial Edict, Book IX. It makes no difference whether the woman has paid the money for the purpose of discharging the debt, or has given in payment any of her property whatsoever, for even if she had sold her property and either paid the price received for the same in behalf of another, or substituted the purchaser to another creditor, I do not think that the Decree of the Senate will be operative, so far as the creditor of another party is concerned.

Gaius, On the Provincial Edict, Book IX. Ad Dig. 16,1,13 pr.ROHGE, Bd. 25 (1880), Nr. 85, S. 358: Darlehn zur Bezahlung einer für den Ehemann übernommenen Schuld.Sometimes, although a woman may have assumed an obligation in behalf of another, she is not assisted by this Decree of the Senate, which happens when a woman assumes an obligation which, at first sight, appears indeed to be that of another, but is, in reality her own; as for instance, where a female slave has provided another debtor on account of an agreement connected with her freedom, and, after her manumission, assumes the very obligation which the debtor owes; or where a woman purchases an estate, and assumes the debts of the estate herself, or where she becomes the guarantor of her own surety. 1A creditor has no need of a new action with reference to the pledges of a former debtor, as the Servian Action (which is also designated the hypothecary action) is available in instances of this kind; since it is true that an agreement has been made with reference to pledges, and that the money has not been paid. 2If a woman appears as surety for another party under a certain condition, or with reference to a certain time; while the condition is pending, an action for restitution should be granted to the creditor against the former debtor, if he wishes it; for what advantage will it be to wait for the fulfillment of the condition, or for the expiration of the time, since the former debtor is in such a position that he must, by all means, defend the action brought against him?

Ad Dig. 16,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 20.Gaius, On the Provincial Edict, Book IX. Where a claim is demanded from a surety, it is perfectly just for the latter to choose whether he prefers to set off what is due to himself or what is due to the principal debtor. He should also be heard if he wishes to make a set-off against the claims of both,

Gaius, On the Provincial Edict, Book IX. That also is included in a set-off for the recovery of which suit has already been brought against the plaintiff, in order to prevent the condition of the more diligent party from becoming worse if the set-off should be refused him.

Gaius, On the Provincial Edict, Book IX. Where there are several heirs of the party who made the deposit it is held that if the majority of them appear the property should be returned to those who are present. The majority should be understood to mean, not the larger number of persons, but the greater amount of the shares of the estate, and proper security must be furnished. 1Ad Dig. 16,3,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 124, Note 9.Whether proceedings are instituted against him with whom the property was deposited or against his heir, and the property naturally perished before a decision is rendered, for instance, if a slave whose ownership was in dispute should die; Sabinus and Cassius say that the party against whom the action was brought ought to be discharged, because it is only just that the natural loss of the property should be borne by the plaintiff, since it would have perished even if it had been returned to him.

Gaius, On the Provincial Edict, Book IX. If anyone should write to another to release his debtor, and that he himself will pay him the money which he owes him, he will be liable to an action on mandate. 1Ad Dig. 17,1,27,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 411, Note 5.If I have delivered to you a slave with the understanding that you will manumit him after my death, the obligation will be established. Moreover, I will, myself, be entitled to an action against you, if, having changed my mind, I should wish to recover the slave. 2Ad Dig. 17,1,27,2ROHGE, Bd. 16 (1875), Nr. 48, S. 172: Einseitiger Rücktritt vom Vertrage. Sorge für anderweite Vertretung.Where a party has undertaken the performance of a mandate, and can execute it, he should not fail to do what he has promised, otherwise, judgment will be rendered against him for the amount of the interest of the mandator. If, however, he is aware that he cannot perform the service, he should notify the mandator of that fact, as soon as he can, that the former may employ some one else if he should desire to do so. If he failed to notify him when he could have done so, he will be liable for the amount of interest of the mandator, but if, for some reason he was unable to notify him, he will be secure. 3A mandate is terminated by the death of the party to whom it was given, if he died without having, in any way, complied with it; and his heir, even though he may have executed the mandate, will not be entitled to an action on mandate on this account. 4The expenses incurred through the performance of the mandate, if they were incurred in good faith, should by all means be paid; and it makes no difference if he who gave the mandate would have paid less if he had been transacting the business himself. 5If you make a loan to Titius by my direction, and bring an action of mandate against me, I should not have judgment rendered against me, unless you assign to me the rights of action which you have against Titius. But if you should sue Titius, I myself will not be released, but I shall be liable to you only to the extent that you have not been able to recover from Titius.

Gaius, On the Provincial Edict, Book IX. This rule also should be observed with reference to property belonging to the debtor at the time when the agreement was made. 1Whatever is capable of purchase and sale can also be made the object of a pledge.

Gaius, On the Provincial Edict, Book IX. If a creditor should bring suit to recover a pledge from the possessor under the Servian Action, and the possessor should obtain an appraisement of the property in court, and the debtor brings an action against him for the recovery of the property; he will not be permitted to do this, unless he first pays what is owing to the creditor.

Gaius, On the Provincial Edict, Book IX. A curator is appointed under the Decree of the Senate where the person is illustrious, as in the case of a Senator or his wife; and there is reason for their property to be sold in order that their creditors may be paid honestly out of it, as far as possible; and a curator is appointed either by the Prætor or by the Governor of the province for the purpose of disposing of the property.

Ad Dig. 50,17,42ROHGE, Bd. 10 (1874), S. 263: Voraussetzung des Verzugs, wenn zur Erfüllung der Verpflichtung die Mitwirkung des Gläubigers nothwendig ist.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Gaius, On the Provincial Edict, Book IX. Those who succeed to another have good reason to plead ignorance as to whether what is demanded is due or not. Sureties, also, as well as heirs, can allege ignorance as an excuse. This, however, only applies to an heir when he is sued, and not when he brings the action; for it is clear that anyone who brings suit must be informed, for it is in his power to do so when he wishes, and he should, in the first place, carefully examine the claim, and then proceed to collect it.