Ulpianus, On the Edict, Book X. As the Prætor grants a right of action in behalf of a municipal corporation, so also he thought that it is perfectly just that the Edict should give a right of action against it. I am of the opinion, however, that a right of action is granted to a Deputy against a municipality where he has incurred expense in some matter of public business. 1Where anything is owing to a corporation, it is not due to the individual members of the same, nor do the latter owe what the entire association does. 2In matters which have reference to the body of decurions, or to other associations, is a matter of no consequence whether all the members remain in it, or only a portion, or whether they are all changed; but where the entire body is reduced to a single member, the better opinion is that he can sue, and be sued, since the right of all is merged in one, and the name of association remains.

Ulpianus, 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.

Ulpianus, 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.

The 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:

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, On the Edict, Book X. “Where anyone is said to have received money for the purpose of causing annoyance, or to abstain from doing so, a right of action in factum will lie against him for a year to recover fourfold the amount which he is said to have received; and after a year one will lie for the actual amount.” 1Pomponius states that this action is not only applicable to cases where money is involved, but also to public prosecutions, and especially as the party is liable under the Lex Repetundarum who receives money in consideration of doing something to cause annoyance or for refraining from doing so. 2Anyone who receives money before issue is joined in a case or who receives it afterwards, is equally liable. 3A Constitution of our Emperor directed to Cassius Sabinus, prohibits the giving of money to a judge or an adversary in public or private cases, or in those in which the Treasury is interested; and where this is done it orders the right of action to be lost. For it may be asked, if the adversary, not with vexatious intent but for the purpose of compromise, accepted the money; does the constitution apply? It is my opinion that it does not, since the right of action has ceased; for compromises are not forbidden but only base acts of extortion. 4Again, a party is also said to have received money where he has received something else instead of money.

Ulpianus, On the Edict, Book X. In general, this rule also applies where a party obtains any benefit for such a consideration, whether he gets it from his adversary or from anyone else. 1Wherefore, if a party receives money for the purpose of causing some annoyance, he is liable whether he did so or not; and where he received it not to cause annoyance, if he does cause it, he is liable. 2He also is liable under this Edict who is depectus, which means one who has entered into a disgraceful contract. 3It should be observed that he who has paid money in order that some party might suffer annoyance, has himself no right of recovery, for he has acted dishonorably; but the right of action is granted to him on whose account the money was paid for the purpose of annoying him; for which reason if anyone receives money from you in consideration of causing me annoyance, and from me to prevent my being annoyed, he will be liable to me in two actions.

Ulpianus, On the Edict, Book X. But this action is granted against an heir for whatever has come into his hands; as it has been established that this dishonorable profit can be recovered from heirs, although criminal actions are extinguished; as, for instance, where money is given for falsification, or to a judge for a favorable decree, and is recovered from the heir, as anything else may be recovered which has been obtained in an unlawful manner. 1Also, in addition to this action, one to recover the money also lies, where the only base conduct is that of the party who received it; for if this also applies to the giver then he who possessed it is in a better position. If a suit for the money should be brought, would this right of action be lost, or should a suit for threefold the amount be granted? In a case of a thief we grant an action for fourfold the amount, as well as one for the recovery of the property. I am of the opinion that either of the actions alone is sufficient, for where an action for the recovery of the money will lie, then it is not necessary to grant an action in factum after the lapse of a year.

The Same, On the Edict, Book X. Relief is afforded by complete restitution of minors under twenty-five years of age not only when they sustain some loss of property, but also when they are interested in not being annoyed with lawsuits and expense.

The Same, On the Edict, Book X. He is considered to have abandoned a case, not if he merely postpones it, but where he entirely renounces it.

The Same, On the Edict, Book X. A party is understood to “desist”, not when he defers the case, but where he abandons it altogether; for to desist means to relinquish any proceeding which he had begun for the purpose of annoyance. It is evident that if anyone, after he has ascertained the facts in the case, gives it up, being unwilling to persevere in an action which is unjust, and which he did not institute for the purpose of causing annoyance, he is not held to have desisted.

Ulpianus, On the Edict, Book X. Where anyone expends anything on account of a funeral, he is considered to have made the contract with the deceased and not with his heir.

Ad Dig. 12,1,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 370, Note 15.The Same, On the Edict, Book X. A municipal corporation can be bound by a loan, if the money is expended for its benefit; otherwise, those who contracted the loan will be liable as individuals, and not the corporation.

Ulpianus, On the Edict, Book X. When a patron marries his freedwoman, he cannot be compelled to swear in an action for the removal of property; but if he himself tenders the oath to his freedwoman, he will not be compelled to swear that he did so for the purpose of annoyance.

The Same, On the Edict, Book X. If any business is transacted with a slave belonging to a city, by the authority of the official appointed for the management of its affairs, Pomponius says that an action on this ground can be brought against him.

The Same, On the Edict, Book X. Interest is included in the counter-action based on the ground of voluntary agency, where I borrow money in order to pay your creditor, because he was either to be placed in possession of your property, or about to sell your pledges. But what if, having the money at home, I paid the debt for one of the above-mentioned reasons? I think that it is true that interest should be paid where I have freed you from such a great inconvenience, but only such as is customary in that part of the country should be considered due; that is, such as has been established in the case of bona fide actions. But if I should pay money after borrowing it, the interest which I myself have paid can be collected; provided that, by doing so, I have been of greater benefit to you than the value of this interest.

Ulpianus, On the Edict, Book XXVIII. He who has transacted business while acting as guardian is entitled to the counter-action.

Ulpianus, On the Edict, Book X. A parent, a patron, a patroness, or the children of relatives of the latter, will not be liable to an action in factum on account of a transaction, in which they are said to have received a sum of money, in consideration of either the performance or nonperformance of some act. 1Neither will actions implying moral turpitude, nor such as are based upon bad faith, or fraud, be granted against them.

Ulpianus, On the Edict, Book X. Although such actions may not imply moral turpitude. 1And judgment shall be rendered against them only for the amount which they are able to pay. 2Nor can they be opposed by exceptions on the ground of bad faith, or for force, or fear, or by interdicts unde vi, or for any injury suffered through violence. 3When these persons tender an oath, they are not compelled to swear that this is not done maliciously. 4When a freedman alleges that his patroness has fraudulently been placed in possession of an estate in the name of her unborn child, he shall not be heard, because he cannot accuse his patroness of fraud, for such persons are entitled to respect; as is stated in the Sections of the Edict. 5Respect, however, is only due to them personally, and not to those who represent them; but if they themselves should appear for others, they will still be entitled to respect.

The Same, On the Edict, Book X. As well as to a patron, a patroness, their children and their ascendants. Likewise a husband, when sued for a dowry, is only liable for what he can pay.

The Same, On the Edict, Book X. If anyone dispossesses me by force, in the name of a municipality, Pomponius says that I will be entitled to an interdict against the said municipality, provided anything has come into its hands.

Ulpianus, On the Edict, Book X. Property belonging to a city is improperly styled public, for only those things are public which belong to the Roman people.

Ulpianus, On the Edict, Book X. We include among public property not only such as is sacred and religious, and intended for the use of the people, but also that of towns, and the peculia of slaves belonging to the latter are undoubtedly considered public property. 1We must understand public taxes to mean those which the Treasury levies on certain articles, among which are the tax on merchandise in a harbor, or goods which are sold, as well as those on salt-pits, mines, and places where pitch is produced.