The 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.

Paulus, On the Edict, Book XXXII. Where a joint-owner of money paid out his own money as a loan, he makes an absolute loan of said money, even though his co-owners did not consent; but if he paid out money which was owned in common, he does not make a valid loan, unless the others also consent, because he has only the right to dispose of his own share.

The Same, On the Edict, Book XXXII. Where a judge discharged a party improperly, and he who is discharged pays the debt voluntarily, he cannot bring an action to recover the money.

Paulus, On the Edict, Book XXXII. Where a partnership has been contracted with a son under paternal control or a slave, and the father or the master brings suit, we include the whole amount in a set-off; although if we should bring suit, only that which has reference to the peculium must be made good. 1But where suit is brought against a son under paternal control, the question arises whether the son can, by way of set-off, claim, what is owing to the father? It is better to hold that he can, because there is only one contract, but this should be done under the condition that he gives security that his father will ratify his act, that is to say, that he will not, in the future demand what his son has set off.

Paulus, On the Edict, Book XXXII. The obligation of mandate is based upon the consent of the contracting parties. 1Hence a mandate can be received by means of a messenger, as well as by a letter. 2Moreover, an action on mandate will lie where the party either says I ask, or I wish, or I direct, or where he puts it in writing in any other language whatsoever. 3The obligation of mandate can also be contracted to become operative at a certain time, and under a certain condition. 4A mandate is void unless it is gratuitous, as it derives its origin from duty and friendship, hence compensation is opposed to duty; for, where money is involved, the transaction rather has reference to leasing and hiring.

Paulus, On the Edict, Book XXXII. Moreover, in the case of mandate, it happens that sometimes the condition of the party giving it may not be improved, and sometimes when it may be improved, but it can never become worse. 1In fact, if I directed you to purchase something for me, and did not say anything about the price, and you purchase the article, there will be a right of action on both sides. 2If I fixed the price, and you bought the article for more, certain authorities deny that you will be entitled to an action on mandate, even though you are ready to pay the amount of the excess; for it is unjust that I should have an action against you if you were unwilling to make the payment, but that you should have one against me if you are willing to do so.

Paulus, On the Edict, Book XXXII. Therefore, the limits of the mandate must be diligently observed, for a party who exceeds them is held to have done something else than what he was directed to do. 1And if he does not execute what he undertook, he will be liable. 2Hence, if I direct you to buy the house of Seius for a hundred aurei, and you buy that of Titius for a much larger price, or for a hundred aurei, or even for a smaller sum; you will not be held to have executed the mandate. 3Again, if I direct you to sell my land for a hundred aurei, and you sell it for ninety, and I bring an action to recover the land, I will not be barred by an exception, unless you pay me the balance which is lacking on the mandate, and indemnify me for all loss. 4Moreover, if a master directs his slave to sell property for a certain amount, and he sells it for less, the master can also bring an action to recover it; nor will he be barred by an exception, unless he is indemnified. 5The position of the mandator can be improved, for example, if I direct you to purchase Stichus for ten aurei, and you purchase him for less, or for the same amount and receive some accession to the slave; as, in either instance, you have made the purchase not for more than the price agreed upon, but within that price.

Paulus, On the Edict, Book XXXII. You should also furnish security with reference to your acts.

Paulus, On the Edict, Book XXXII. If I direct you to become surety for me for a certain time, and you do so absolutely, and make payment; the proper answer will be that you will not be entitled to an action on mandate until the time has expired. 1It has also been discussed whether, if you become security by my direction for a certain time, for a sum which I owed during that time, and you pay it before the period has elapsed, will you at once be entitled to an action on mandate? Certain authorities think that the right of action is immediately acquired, but for less than the amount of my interest in having payment made on the day when it was due. It is better, however, to say that, in the meantime, the action on mandate for this sum cannot be brought, when it is not convenient for me to pay it before the appointed time. 2Ad Dig. 17,1,22,2ROHGE, Bd. 15 (1875), Nr. 7, S. 19: Verweisung des Gläubigers eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?It happens, sometimes, that if I transact my own business I will also be entitled to a prætorian action on mandate; for instance, where my debtor substitutes one of his own in my favor at his own risk, or where I institute proceedings against the principal debtor at the request of the surety; for although I am collecting my own debt, still, I am transacting his business, and therefore what I fail to collect I can recover by an action on mandate. 3Where persons, whose property has been given in pledge and sold, introduce fraudulent purchasers, and direct them to buy the property, the mandate is understood to have been given, although a mandate does not exist under circumstances of this kind; because, when you buy your own property, such a purchase is null and void. 4Julianus said that the obligation of mandate also has reference to the property of him who undertook its performance, and, on this account, should by all means, be proved; because if I direct one of several heirs, who are making a sale, to purchase for me the property of the estate, the said heir will be liable to an action on mandate for the share of the estate to which he is entitled, and the obligation will be reciprocal; for, in fact, if he, on this account, (that is, because he has undertaken the performance of the mandate) will not surrender the property to another bidder, good faith requires that he should pay him the price for which it could be sold. On the other hand, if the purchaser was not present at the sale for the purpose of buying property which he needed, as he had instructed the heir to purchase it for him; it will be perfectly just that he should have an action on mandate to indemnify himself for the interest he had in having the property purchased. 5A person whose property has been confiscated can direct anyone to purchase it, and if he should do so, an equitable action on mandate will lie, if he does not keep faith. This rule has been established because, where property has been confiscated and anything is afterwards acquired, it does not go to the Treasury. 6Where anyone has undertaken to carry out a mandate directing him to rob a temple, or wound or kill a man, he cannot recover anything in an action on mandate, on account of the infamous nature of the mandate. 7If I give you a hundred aurei in order that you may give them to Titius, and you do not do so, but use them yourself; Proculus says that you will be liable both to an action on mandate, and to one of theft; but if I should give them to you in such a way that you can turn them over to anyone you please, only an action on mandate will lie. 8If I direct your slave to pay, on my account, a sum of money which I owe you; Neratius says that, although the slave may have borrowed the money and entered the payment on your books as having been received from me, still, if he did not receive it from the creditor to be placed to my credit, I will not be released, and you cannot bring an action on mandate against me; but if he borrowed it with the understanding that he was to pay it on my account, on the other hand both these circumstances will take place; for it makes no difference whether some other slave, or the same one, received the money to be paid on my account in your name, and this is the more correct, since whenever the creditor receives his own money, the release of the debtor does not occur. 9A fugitive slave of mine, while in the hands of a thief, obtained some money and purchased other slaves with it, whom Titius received by delivery from the vendor. Mela says that I can cause Titius to make restitution to me by an action on mandate, because my slave is held to have directed Titius to receive the slaves by delivery, provided that he did so at the request of the slave. But if the vendor made the delivery to Titius without his consent, I can then bring an action on purchase to compel the vendor to deliver the slaves to me, and the vendor will have a personal action for recovery against Titius for the delivery of slaves which he did not owe him, although he believed that he did. 10Where the curator of property makes a sale, but does not pay the proceeds of the same to the creditors, Trebatius, Ofilius, and Labeo are of the opinion that an action on mandate will lie against him in favor of those creditors who appear, and that an action on the ground of business transacted can be brought by those creditors who are absent; but if, having executed the mandate of those who are present, he proceeds with the sale, an action on the ground of business transacted cannot be brought by the absent creditors, unless perhaps against those who directed the curator to sell the property, just as if they had transacted the business of the former. But if they directed him to do this, believing that they were the only creditors, an action in factum should be granted in favor of the absent creditors against those who gave the mandate. 11However, just as one is free not to accept a mandate, so if it is accepted it must be executed, unless it is revoked. Moreover, it can be revoked in such a way that the right will be reserved unimpaired to the party giving the mandate to conveniently dispose of the matter, either by himself or by someone else; or where he who undertook the performance of the mandate might be taken advantage of. And if the party to whom the mandate was given to purchase something does not do so, and does not state that he will not purchase it, he will be responsible for his own negligence, and not for that of another; and it is settled that he will be liable to an action on mandate. He will still further be liable (as Mela also has said) if he should fraudulently revoke the mandate at a time when he could not properly make the purchase.

Paulus, On the Edict, Book XXXII. The death of the person giving the mandate is included among the causes for negligence to comply with it, for a mandate terminates with death. If, however, it is executed by a party ignorant of this fact, it is held that the action will lie for the sake of convenience. Julianus also stated that a mandate was terminated by the death of the party who gave it, but that the obligation arising therefrom sometimes continued to exist. 1Where a party directed his debtor to pay Titius for him, and the debtor paid the money after the death of Titius; although he was ignorant of the fact, he must be released. 2Ad Dig. 17,1,26,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 17.Money is understood to have been lost by a surety, where a debtor has been substituted by him for the benefit of the creditor, even though he was not solvent; because the creditor who accepts a debtor who has been substituted, makes the security good. 3Where a party who wishes to make a present to a surety discharges his creditor, who is his own debtor, the surety can immediately bring suit on mandate, as it makes no difference whether he paid the money to the creditor or released the latter from his obligation. 4It should also be borne in mind that a surety cannot recover more in an action on mandate than he has paid. 5I became your surety for the amount of ten aurei, by your direction, and I paid the agent of the creditor. If the latter was the true agent, I am immediately entitled to an action on mandate, but if he was not, I can bring an action for recovery against him. 6A mandator cannot make a charge of all the expenses which he may have incurred; as, for instance, where, because he has been robbed by thieves, or has lost property by a shipwreck, or he, or the members of his family, have been attacked by disease, he has been compelled to incur expense; for these things should be rather attributed to accident than to mandate. 7Where, however, a slave steals from you what you had purchased by my direction, Neratius says that you can bring an action on mandate to compel the slave to be surrendered to you by way of reparation, if this happened without your fault; but if I knew that the slave was dishonest, and did not warn you, so that you could provide against it, I must then make good to you the amount of your interest. 8A workman, by the direction of a friend, bought a slave for ten aurei, and taught him his trade; he then sold him for twenty aurei, which he was compelled to pay by an action on mandate. Afterwards, he had judgment rendered against him in favor of the purchaser, on the ground that the slave was not sound. Mela says that the mandator will not be obliged to make good to him what he paid, unless, after he made the purchase, the slave became unsound without bad faith on his part. If, however, he had given him instructions by order of the mandator, the contrary would be the case, for then he could recover what he had expended, as well as what had been paid for the maintenance of the slave, unless he had been asked to instruct him gratuitously.

Paulus, On the Edict, Book XXXII. A partnership can be formed either perpetually, that is, to say during the life of the parties, or for a certain time, or to begin at a certain time, or under some condition. 1Ad Dig. 17,2,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 171, Note 2.In the formation of a general partnership, the entire property of the partners immediately belongs to them all in common.

Paulus, On the Edict, Book XXXII. The existing debts remain in the same condition, but the rights of action should be reciprocally assigned. 1When a general partnership has been expressly entered into, estates, legacies, donations, and property acquired in any way whatsoever, are acquired in common. 2The question arises, when a lawful estate falls to any of the partners to be held in common, what is meant by the term “lawful estate”? Must this be understood to be one that descends to a party by law, or one which is bequeathed by will? It is more probable that it only refers to an estate which descends by law. 3Where a partnership is contracted fraudulently, or for the purpose of committing fraud, it is void by operation of law, because good faith is opposed to fraud and deceit.

The Same, On the Edict, Book XXXII. If it is stated in the articles of partnership that the gains and profits shall be in common, it is clear that this is to be understood only to apply to such profits as come from the efforts of the partners.

Paulus, On the Edict, Book XXXII. Ad Dig. 17,2,65 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 405, Note 5.It is terminated by legal proceedings when the purpose for which it was formed is changed, either by stipulation or judicial decision; for Proculus says that a partnership is dissolved whether it be general or special, whenever legal steps are taken for the purpose of putting an end to it. 1Labeo says that a partnership is dissolved where the property of one of the partners is sold by his creditors. 2Labeo also says that if the partnership was formed for the purpose of purchasing or leasing something, that then, any profits which may have accrued, or any loss which may have taken place, must be divided in common after the death of one of the partners. 3We have stated that a partnership can be dissolved by the dissent of the parties, that is, if all of them are of one mind in this respect. But, what if only one of them should withdraw? Cassius stated that he who retires from the partnership releases his partners from responsibility, so far as he himself is concerned, but does not release himself from liability to them. This rule, however, should only be observed where the withdrawal is made from fraudulent motives; as, for instance, if we form a general partnership, and afterwards an inheritance passes to one of the partners and he retires on this account; if the inheritance should be productive of any loss, this must be borne by the partner who withdrew from the partnership, but he can be compelled by an action on partnership to share with the others any profits arising from the same. If he should acquire any property after his withdrawal, it will not be shared with the other partners, because fraud has not been committed with reference to it. 4Moreover, if we form a partnership for the purchase of certain property and afterwards you wish to purchase it yourself, and for this reason you withdraw from the partnership, you will be liable to the extent of my interest in said property. But if you withdraw because the purchase was displeasing to you, you will not be liable even if I purchase it; because in this instance no fraud exists. These opinions were also held by Julianus. 5Labeo also stated in his work on recent cases, that if one partner should withdraw from the partnership at a time when it was the interest of the other for it not to be dissolved; he will be liable to the action on partnership; for if we form a partnership for the purchase of slaves, and, after doing so, you withdraw from the association at a time which is not favorable for the sale of the slave, in this case, you will be liable to an action on partnership, because you have rendered my position worse. Proculus holds this opinion to be correct only where it is the interest of the partnership not to be terminated; for greater consideration is usually shown to what is beneficial to the partnership, than for the private advantage of one of the partners. These rules are only applicable where nothing has been agreed upon with reference to these matters, when the partnership was formed. 6Ad Dig. 17,2,65,6ROHGE, Bd. 11 (1874), Nr. 87, S. 264: Auflösung der Societät durch Erklärung des Austritts eines Socius aus genügendem Grunde.Where a partnership has been formed for a certain time, one of the partners, by withdrawal from it before the time has elapsed, releases his partner from liability to himself, but he does not release himself from liability to his partner. Hence, if any profit is obtained after his withdrawal, he will not be entitled to any share of it; but if any expenses have been incurred, he must also pay his share, unless his withdrawal took place on account of some necessity. When, however, the time has elapsed, either party is free to withdraw, because this can be done without fraudulent intent. 7We can also withdraw from a partnership by the agency of others, and therefore it is held that an agent can also withdraw in behalf of his principal. Let us consider, however, whether what has been stated on this point applies to him to whom the general management of the partnership property has been entrusted, or to him to whom special directions on this subject have been given; or can the withdrawal legally be made in either instance? The latter is the more correct opinion, unless the principal expressly forbade the agent to withdraw. 8Ad Dig. 17,2,65,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 306, Note 10.It is also settled that my partner can give notice of his withdrawal to my agent. Servius says in a note on Alfenus that it is in the power of the principal, when notice of withdrawal is given to his agent, to ratify or reject it at his pleasure; therefore, he will be held to be released from liability to whose agent notice of withdrawal was given; but he, also, who gave notice to the agent of his withdrawal, will be released if he so desires; as we have stated with reference to one partner who personally notifies the other of his withdrawal. 9Ad Dig. 17,2,65,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 408, Note 12.A partnership is dissolved by the death of one of the partners, even though it was formed with the consent of all, and several survive, unless some other arrangement was made when the partnership was formed; nor can the heir of a partner succeed to the partnership, but he can share in the profits of it afterwards. Moreover, any loss resulting from fraud or negligence in transacting the business before the death of the partner, must be made good to the heir, as well as by him. 10Moreover, a partnership formed for any special purpose is terminated when the business for which it was entered into is finished. If, however, one of the partners should die, while the affairs of the partnership were still unchanged, and the reason for the formation of the partnership should only appear after his death, we must then make the same distinction as in the case of a mandate; namely, that if the death of one of the partners was unknown to the other, the partnership will continue to exist; but if it was known, it will be dissolved. 11Just as the partnership does not pass to the heirs of a partner, so also it does not pass to an arrogator; lest, otherwise, a partner might become associated with persons against his will. The party who was arrogated will, however, remain in the partnership, for even if a son under paternal control should be emancipated, he will still continue to be a partner. 12We have stated that a partnership can also be dissolved by the confiscation of property, which is held to relate to the forfeiture of all the property of a partner to the State, for the latter is considered as dead when another partner succeeds him. 13If any expense should be incurred with reference to the partnership property, after the partnership has been dissolved, a partner cannot recover said expense in an action on partnership, because it is not true that this was done in behalf of the other partner, or on account of the partnership interest; but, in an action for the division of property held in common, account must be taken of this expense, for although the partnership may have been dissolved, the division of the property nevertheless remains. 14Ad Dig. 17,2,65,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 4.Where money belonging to a partnership is in the hands of one of the partners, and the capital of one of the latter is, to a certain extent, diminished; suit should only be brought against the partner who has possession of the money; and, after what is due to him has been deducted, all of them can bring suit for the balance which is due to each one. 15Ad Dig. 17,2,65,15ROHGE, Bd. 12 (1874), Nr. 90, S. 274: Actio pro socio eines Gesellschafters wegen einer von ihm bewirkten Bezahlung eines Gesellschaftsschuld nach Auflösung der Gesellschaft.It is sometimes necessary to bring an action on partnership while the partnership is still in existence; as, for instance, where the latter was formed for the purpose of collecting taxes; if on account of various contracts it is to the advantage of neither partner to withdraw from the partnership, and one of them fails to place what he has collected in the common fund. 16Where one of the partners is married, and the partnership is dissolved during the marriage, the said married partner can take the dowry of his wife out of the partnership property, in preference to any other claim; because it should be in the hands of him who sustains the burdens of marriage. If, however, the partnership is dissolved after the marriage has ceased to exist, he should receive the dowry on the very day when it should be paid.

Paulus, On the Edict, Book XXXII. Where one of the partners sells the property of the partnership with the consent of the others, the price ought to be divided, and security furnished to indemnify him for the future; and if the said partner has already suffered any loss, it must be made good to him. If, however, the purchase-money is divided without any security being given, and the partner who made the sale was compelled to pay something on account of it; can he recover from some of the partners what he has not been able to collect from the others, where all of them are not solvent? Proculus thinks that this burden should be sustained by the others, if it cannot be collected from some of them; and that this can be defended on the ground that when the partnership was formed, a community of profit as well as loss was established. 1Where one of several partners, who did not belong to a general partnership, lent money which belonged to all of them, and collected the interest, he should only divide the interest if he lent the money in the name of the partnership; for if he did this in his own name, since he ran the risk of losing the principal, he is entitled to retain the interest. 2Where a partner incurs some necessary expense with reference to the business of the partnership, he can bring an action on partnership for the interest, if he should have borrowed the money at interest. But where he used his own money for this purpose, it is held, and not without reason, that he has a right to claim the same amount of interest which he could have collected if he had lent the money to anyone else. 3Judgment cannot be rendered against a partner to the extent of his resources, unless he acknowledged that he is a partner.

Ad Dig. 19,2,7ROHGE, Bd. 15 (1875), Nr. 19, S. 48: Interesse, der Betrag, der dem Dritten hat bezahlt werden müssen.Paulus, On the Edict, Book XXXII. If I rent you a house belonging to another for fifty aurei, and you rent the same house to Titius for sixty, and Titius is forbidden by the owner to occupy it; it is established that you can bring an action on hiring against me, to recover sixty aurei, because you yourself are liable to Titius for sixty.

Paulus, On the Edict, Book XXXII. Just as it is one thing to sell, and another to buy, and as a difference exists between purchaser and vendor, so the price is one thing, and the property another. In an exchange, however, it cannot be ascertained which is the purchaser and which the vendor. Exchanges differ greatly, for a purchaser is liable to an action on sale, unless he pays the purchase-money to the vendor; and it is sufficient for the vendor to bind himself in case of eviction, to deliver possession and be free from fraud, and therefore, if the property sold is not lost by a better title, he owes nothing. In an exchange, however, if the property of each party is regarded as the price of that of the other, the title to each article must pass, but if it is considered as merchandise, neither is required to transfer the ownership. But, while in a sale there must be both property and a price, it cannot be ascertained in an exchange which is the property, and which is the price, nor does reason permit that the same thing shall be at once the property sold and the price of what is purchased. 1Wherefore, if one of the articles which I have received or given is afterwards taken away through a better title, it is held that an action in factum should be granted. 2Moreover, purchase and sale is contracted by the mere will of the parties consenting to the same; an exchange, however, gives rise to an obligation by the delivery of the property. Otherwise, if the property was not delivered, we hold that an obligation could be contracted by mere consent, which is only applicable to agreements of this kind which have their own specific designations, as purchase, sale, lease, and mandate. 3Therefore Pedius says that where a party gives property which belongs to another an exchange is not contracted. 4Hence, where delivery is made by one party, and the other refuses to deliver his property, we cannot institute proceedings for the reason that it is to our interest to have received the article concerning which the agreement was made; but there will be ground for a personal suit for recovery to compel the property to be restored to us, just as if the transaction had not taken place.

Paulus, On the Edict, Book XXXII. In disposing of his rights to an estate, an heir can provide that in case the Falcidian Law should apply, the entire legacy shall be paid by the purchaser, because this law was enacted for the benefit of the heir, and the latter is not defrauded, if he himself diminishes his own right.

The Same, On the Edict, Book XXXII. If the agent for a defendant suffers judgment to be rendered against him, after the money has been paid, and proceedings to enforce the judgment have been instituted against his principal, the latter can protect himself by pleading an exception on the ground of fraud. Nor can he be compelled to give up what he entrusted to his agent, for it is more just to permit money which has been dishonorably obtained to remain in the hands of the person who was deceived than under the control of him who was responsible for the deceit.