L. 26, § 2, D. (xxx. 1). L.35, § 3, D. (vi. 1). the parts. On these grounds it was noted in Roman law that there were some things which were "naturally indivisible, or which could not be divided without loss or destruction." Thus, whether, for such judicial purposes as that of settling the claims of joint proprietors or beneficiaries under a will or a trust, a thing should be treated as physically divisible, and, if so, on what principles the division should take place, was a matter of purely positive law; and the logical classification of things into divisible and indivisible, like the other juridical classifications already noticed, was a merely arbitrary one, though based on actual physical facts. L. 6, § 1, D. Generally speaking, immovable things were regarded as divisible, and movable as divisible or not according to their character. It was always possible, however, that a house or building could not be divided into parts, though land generally could, albeit the parts, if equal in area, would not always be of equal value. When things (viii. 4). were indivisible without change of nature or serious loss of value, or where, on the whole, it was not expedient to divide them, one of two courses was resorted to. Either the whole thing was given to one person, and he was required to make pecuniary compensation to the other persons jointly interested with himself; or the whole thing, and every part of it, yet undivided, was regarded as owned by all the persons interested, and the resulting advantage, proceeds, or income, of it, was proportionably divided amongst all. The shares of the interested persons were called "undivided parts," and part ownership of this L. 5, D. (xlv. kind was, in the eye of the law (juris intellectu), 3). L. 66, § 2, opposed to ownership of a part resulting from D. (xxxi). L. 5, $15, D.(xiii 6). corporeal division (divisione corporis). In both L. 54, pr. D. these cases the rights were treated as divisible, but not always the things themselves. (xlv. 1). Another celebrated distinction among things requires to be here adverted to, as it greatly coloured the history of Roman law, though it had practically vanished by Justinian's time, and the last traces of it were swept away by one of his constitutions. This was the distinction founded on the fact that some things could only be transferred by a sort of fictitious sale, called mancipation, while Gaius (i. 119, all other things (that is, things properly so called, ii. 18-23). and not merely rights to things) could be transferred by simply handing them over. To the former class (res mancipi) belonged the things which, in primitive Rome, were doubtless the chief or only objects of judicial controversy, such as land and houses or permanent buildings in Italy, slaves, and domesticated animals. All other things could be transferred by simply handing them over (res nec mancipi). As in the case of persons, so in the case of things, it is often convenient to contemplate as a single thing a number of things having certain relations to one another. These things are usually of the same kind, and have a common economical destination or purpose. The unity continues to subsist, despite the change of all or the loss of some of the objects of L. 22, D. (xxx. which it is composed. An "university" or 1). aggregate thing of this sort (universitas facti sive hominis), -as a flock of sheep-must be distinguished from an assemblage of things corporeal and (so-called) incorporeal, that is, rights in things treated for juridical purposes as an integral whole (universitas juris). Such was the private property which a soldier retained, indepen- L.. 20, § 10, D. dently of paternal control (peculium castrense). (v. 3). In the case of a hereditas, the idea of an university seems to have been on one side, that of a corporeal person in whom the rights and obligations centred, and on the other, that of an assemblage of things, the subject-matter of the rights and obligations. The two conceptions in reference to persons and things respectively here met together. § 3-Acts, in Reference to the Creation, Extinction, and Exercise of Rights, and to the Performance of Duties. All laws are directed to the control of the acts of persons, commanding them to do certain acts and to abstain from doing others. It is, again, by the doing of certain acts that many rights arise, are extinguished, or are exercised or enjoyed. Thus, whether in reference to duties or to rights, the discrimination of persons' acts is one of the most prominent topics of legislation and judicial inquiry. For the purposes of jurisprudence, every act may be resolved into (1) a muscular motion, (2) will, and (3) an intention. The will and the muscular motion together constitute the essence of the act, while the intention imparts to it its quality, kind, character, and limits. The intention may be briefly defined to be the "attitude of the agent's mind at the moment of acting, in respect of the immediate consequences of the act." Thus, intention includes aimlessness, or vague, unthinking, purposelessness. Acts have consequently to be tested, first, as to their validity, and, secondly, as to their character. I. The validity of acts. 1. The person acting must not belong to a class of persons held in law to be presumably incapable of doing a valid act of any sort, or, at least, of the sort under consideration. 2. The person acting must not be disqualified to do a valid act of any sort through the presence of an impediment belonging to one of certain well-recognized classes of impediments. (1) The classes of persons presumably incapable of acting in certain cases were (a) persons under age, (b) women, (c) lunatics, and (d) prodigals. 10 J. (iii. 19). L. 1, § 12, 13, D. (xliv. 7). (a) Infants under seven years of age, persons under fourteen years of age, and persons between the ages of fourteen and twenty-five. The amount of disability in these several cases, and the devices for remedying the public and private inconve nience which might spring from it, belong to the subjects of tutelage and guardianship (tutela and curatela) and of summary prætorian remedies (restitutio in integrum), which will be treated fully in their proper place. (See Chap. v.) (b) Women in certain cases. The disabilities attaching to women have already been treated of under the general head of sex, as a qualification of persons. (c) Lunatics (furiosi dementes) and persons otherwise disqualified by bodily infirmity, such as the deaf and dumb, so long as the condition of lunacy or other infirmity actually subsisted, and to the extent that it really dis1 L. 48, D. (1. qualified the sufferer for the purpose in hand.1 A sudden fit of passion operated while it lasted in the same way as madness.2 This topic will be treated more fully under the general heading 2 L. 17, D. of guardianship (curatela). L. 7, 8, J. (iii. 19). L. 1, 14, 15, D. (xliv. 7). (xxviii. 1). (d) Prodigals, that is, persons whom the prætor removed from the administration of their own affairs, on the ground that they were wasting the family property that had descended to them, in such a way as to ruin their successors. They were treated as lunatics, and D. (xxvii. 10), a guardian was appointed. C. (v. 70). (2) The recognized classes of impediments to doing a valid act, on the ground of their obstructing muscular motion, unduly weighting the will, or perversely misdirecting the intention, were ignorance, fraud, and force. (a) Ignorance. A distinction was drawn between ignorance of a matter of fact and ignorance of the state of the law as affecting one's own rights and duties. The broad rule was, that the former sort of ignorance was held L. 2, 3, D. excusable, but not the latter sort. But ignorance (xxii. 6). as to matter of fact, in order to be excusable, must not be of a peculiarly gross kind. A certain, but not an excessive, amount of diligence in obtaining pertinent in- L. 9, § 2, D. formation was looked for. In respect of ques- (xxii. 6). tions of law, the ignorance or error was only excusable in cases where the immediate purpose of the person pleading 1L. 8, D. (xxii. 6). 2 L. 9, pr. D. it was to save themselves from loss, and not to make some fresh gain; and only certain classes of persons were enabled to plead it at all. These classes were persons under twenty-five years of age (except as to their illegal acts); women, soldiers, and persons of rude and uncultivated intellect (rusticitas).2 (xxii.6). L. 22, pr. C. (vi. 30). L. 8, C. (vi. 9). L. 2, § 7, D. (xlix. 14). (b) Fraud. When a person is deceived by another as to the nature or the consequences of his acts, whether through insidious craft, mis-statements, untrue insinuations or wilful suppression of relevant facts, the victim of the deceit (dolus malus) was relieved of the whole or the part of the consequences of his act, as against the author of the deception. The relief was accorded either by a plea (exceptio) tendered in the course of the trial, or by an action (actio doli or de dolo). L. 1, § 2, D. $ 2, D. (xviii. 3). D. (iv. 2). L. (c) Force. The presence of force, or the menace of immediate force, impairs the freedom of the agent's will, and thereby converts what otherwise would be an act into a necessary event. Relief against the consequences of acts done under the pressure or apprehension of force was granted either by action or by plea, and the acts were thereby rendered invalid for all purposes and as against all persons. The apprehension must not be that of an exceptionally foolish or nervous person and it must extend to the life, person, liberty, or honour, of the person pleading it. The violence threatened must be such as it is meant positively to inflict in case of non-compliance, and the threat must proceed from the person who has direct control over the force which is to be exerted. Even when these conditions, however, were not satisfied, other legal remedies of a more or less extensive nature relieved those who acted under fear. There was an amount of pressure intermediate between violence and fraud, and which may be described as " undue influence," which invalidated acts and gave occasion for the return of money paid, or even for a considerable fine by way of penalty. D. (iii. 6). |