partnership; but Sulpicius, whose opinion prevailed, held a contract of partnership valid, even though it provided that one of the parties should share in the profits without being liable to the losses, inasmuch as the industry of one partner might be so valuable as to entitle him in equity to a better position as partner than the rest; for the ability and experience of one partner may be of such importance to the others as to entitle him to be relieved from any further contribution (sæpe opera pro pecunia valet). Such an agreement, however, as this, was not valid unless it applied to the profits and losses arising from the whole partnership transactions. For if the profits of one transaction only were to be calculated, without taking into account the losses sustained on another, one of the partners might reap the profits, whilst another would sustain the losses. Such an agreement made the partnership societas Leonina, and it was void (D. 17, 2, 29, 1).

§ 4. A partnership was dissolved: 1st. By an express intention, on the part of one or more of the partners, to cease being partners. But if the act of retiring was unseasonable, or done malâ fide, namely, in order to derive the exclusive benefit from any profit about to accrue to the partnership—if, e.g., in the partnership totorum bonorum, one partner retired in order to reap the sole benefit from a hæreditas proffered to him, the party retiring was obliged to put into the common stock the profit which he fraudulently intended to appropriate; but he was entitled to retain, for his own use, anything he did not so fraudulently attempt to obtain. As to the copartner, to whom the fraudulent act of retirement (renuntiatio) had been sent, any profit acquired by him thereafter was acquired by him for his sole benefit.

2nd. By the death of one of the partners.-This dissolved the contract, even as regarded the others, unless there was an agreement to the contrary (§ 5); because, though a man might be willing to form a partnership with all the copartners, he might possibly not be willing to form it with some only. The partnership did not continue with the hæres of a deceased partner (1), for this contract was made with individuals, in consideration of personal qualities.

§ 7. 3rd. By the confiscation (publicatione) of a partner's goods for a crime (B. 4, t. 18); or by the maxima or media diminutio capitis, of which confiscation was a result (B. 3, t. 1).

4th. By cessio (§ 8) (assignment) or by the compulsory sale of the goods of one of the partners (B. 3, t. 12) (D. 17, t. 2, 65, § 1.) (2).

(1) No agreement was good by which a partnership was continued between a surviving partner and the hæredes of one deceased, because a hæres could not be bound against his will in a contract founded on mutual confidence and personal conside

rations. Although the partnership was dissolved for the future, the hæres succeeded to the profits and the losses arising out of transactions prior to the dissolution.

(2) If the parties agreed to continue partners notwithstanding the diminutio

5th. By the close of the business-transaction (§ 6) in respect to which the partnership was formed, or by the loss of the particular subjectmatter thereof (D. 17, t. 2, 63, § 10).

6th. By the expiration of the term limiting the partnership (§ 6).

§ 9. The contract of partnership raised the actio socii or pro socio, by which each partner might compel his copartner-1. To supply the partnership with whatsoever he had bound himself to supply; 2. To account for all profits he had made on its behalf; 3. To contribute to the expenses required for the safe keeping of the partnership property; and, lastly, to repair any damage caused by his own fraud or gross negligence: i.e., by his not bringing to the partnership affairs the same diligence as a person applies to his own affairs; for nothing more could be required. For if one man forms a connection with another who is indolent and negligent, he has himself to blame for having made a bad selection (1).

capitis or cessio bonorum of one of them, that would be the beginning of a new partnership (Gaius, 3, § 153).

(1) Damage may be occasioned by accident (casus), by superior force, from which no man can escape (vis major), or by the lawful or unlawful act of another.Now, unlawful acts alone raise a liability. Acts unlawful, contrary to law (injuria), causing damage, and raising liability, are: 1. Dolus, fraud, which always implies an intent to injure, and always raises a liability. 2. Culpa, an act of neglect, causing damage, but not implying an intent to injure. Now as to culpa it is clear, that though a man may be bound to do no positive act injurious to another, he is not equally bound to exert such diligence as to prevent damage to another. Hence culpa, if it was a positive act of neglectan act of commission-raised a liability in most cases; but culpa, if it was a negative act of neglect-an act of omission-raised a liability only in certain cases.* over, it is clear that negligence-want of diligence-admits of degrees, of which the Roman jurists recognised two: 1. Culpa lata, culpa latior, magna culpa, gross neglect treated very much like fraud; culpa magna dolus est, dolo proxima. 2. Culpa, without any epithet, or omnis culpa, culpa levis, levior, or levissima, slight neglect.

More

But the question arises, by what standard are these degrees of culpa to be measured? Two obviously suggest them

*The technical term for the diligence in question is diligentia; when applied to a thing corporeal, custodia; negligentia,

selves both being adopted by the Roman jurists. For you may take either an absolute standard, viz., mankind in general, or a relative standard, viz., the character of the individual whose acts are in question; in other words, as the commentators say, culpa may be considered either in abstracto, or in concreto. By the absolute standard a man will be guilty of gross neglect (lata culpa) if he has acted in such a way as no man of common sense would act, non intelligere quod omnes intelligunt; or you may test slight neglect (levis culpa)* by the conduct of the most careful (diligentissimus) pater-familias. And we may observe, with the Digest, that no man is to be held responsible who has applied such extreme diligence (exacta, exactissima). By the concrete standard the measure of diligence is the individual whose acts are in question; so that a man is bound to apply diligence either equal to or greater than that which he usually applies to his own affairs. Talem diligentiam adhibere qualem suis rebus adhibere solet.

Lastly, we have to determine the principles according to which parties bound ex contractu, or quasi ex contractu, are liable for the first or second degree of neglect as tested by the first or second standard respectively. These principles are various ; but the following may serve as a summary of parties responsible for slight neglect, i.e., bound to bestow the same diligence as the most careful pater-familias, we have, 1. The commoditarius and the

or omissio diligentiæ, the want of it; dolum or culpam præstare, to be responsible for fraud or neglect.

TITLE XXVI.—OF MANDATUM (COMMISSION).

Mandatum is a contract by which a person undertakes gratuitously and from motives of kindness (1) an honourable and lawful commission. We say gratuitously, because a mandatum was essentially gratuitous (2); if a definite recompense were agreed for, it became a locatio (§ 13); and if the recompense were indefinite, it became an unnamed contract (B. 3, t. 24); we say from motives of kindness, because there was no mandatum unless the person commissioned was free to refuse it; for if he was not, it was a command or jussus; we say an honourable and lawful commission, because a mandatum was not obligatory when contrary to the laws and good morals, as, e.g., if I gave you commission to rob or to injure Titius; for if you executed it, you would have no action against me, although you might have incurred penalties (§ 7).

The actions raised by a mandatum were two: 1. The actio directa mandati allowed to the mandator, whereby he gets indemnified for damage suffered by the non-execution or by the imperfect execution of the mandatum (3), and by which he compels the mandatarius to transfer everything acquired or received on occasion of the mandatum, and to assign his right of action against third parties; e.g., those to whom he has been commissioned to make loans; 2. The actio contraria allowed to the mandatarius, by which he compels the mandator to repay the sums

depositor, because the thing is lent or deposited for their sole benefit respectively. 2. The giver and receiver in the contract of pignus, the seller and purchaser in that of emptio-venditio, the hirer and letter in that of locatio-conductio, because their several contracts confer a mutual benefit. 3. The mandatarius (agent) and the mandator, because, though the latter is the only party benefited, still the contract of mandatum is undertaken from friendship (manu datum), and is held to imply a promise of diligence. 4. The negotiorum gestor, because his interference in the matter is voluntary. Of parties responsible for gross neglect, i.e., such as no man in his senses would commit, or which a man would not commit in the ordinary management of his own affairs, we have, 1. The commodans and depositee, because they render gratuitous services, and because the depositor ought not to trust a negligent depositee. 2. Partners, joint owners, or cohæredes in the management of their joint property, and the husband in that of his wife's dos, because they are

managing their own property, and must suffer for their own neglect, and this is properly regarded as a security for their diligence. 3. Tutors and curators, because their duties are imposed upon them; but some texts in the Digest make them responsible even for slight negligence. The rules given apply only to culpa when there has been no special agreement: as to dolus, every person was bound dolum præstare, and an agreement to the contrary was void.

(1) The form described in Plautus (Captiv. ii. 3) shows this: originem ex officio atque amicitia trahit.

(2) But it would still be a mandatum, though the mandatarius (person commissioned) received some honorarium; thus, an advocate might receive his fee without ceasing to be a mandatarius: though he would have no action to compel payment; but the Prætor or Præses fixed the amount extra ordinem (§ 13, B. 4, t. 6).

(3) The mandatarius was responsible for slight negligence; the effect of his condemnatio was infamy (B. 4, t. 16).

expended and losses incurred by him on account of the mandatum, and in course of its execution, and secures himself against the actions of creditors, to whom he has become liable by reason of the same.

Pr. There are five ways of contracting mandatum: 1. For the sole benefit of the mandator; 2. For the mutual benefit of mandator and mandatarius; 3. For the benefit of a third party; 4. For the benefit of the mandator and a third party. 5. For the benefit of the mandatarius and a third party. A mandatum for the sole benefit of a mandatarius is void.

§ 1. When one person charged another to transact his business, to buy a piece of land, or to be answerable for him (B. 3, t. 20, § 6)—such a mandatum was for the sole benefit of the mandator.

§ 2. If I commission you to lend money to my procurator, the benefit to the mandator and mandatarius is mutual; for here there is a benefit to you, your funds being lent at interest, and to me, because I am enabled to carry on my business (B. 3, t. 19, § 20). So there is a mutual benefit when your debtor commissions you to get a promise made to you (stipulari) at his risk by his debtor, whom he assigns to you as debtor (deleget), for the obligation incurred by the assigned debtor works a novatio of the mandator's original obligation, and so he is discharged from it (t. 29, post), which is so far a benefit to him, for if sued at all it must be by virtue of the mandatum, in case the delegatus fails to pay; on the other hand, you are benefited by being entitled to sue, first the delegatus, and then the mandator. The same benefit exists when a surety, whom you are about to sue, commissions you to sue the principal debtor at the risk of such mandator.

In this last case the surety has a clear interest in commissioning the creditor to sue the principal debtor, for so the surety postpones his own liability; but the benefit to the creditor is not so obvious. The explanation however will be found in the old doctrine, by which the creditor might elect between the surety and the principal debtor; but having elected and brought an action against one, he could bring none against the other. Now, though by the mandatum from the surety (fidejussor) to sue, and by suing, the principal debtor, the creditor of course lost the action, raised by the fidejussio, still he had the actio mandati against the surety if the principal debtor failed to fulfil his obligatio; so that he had an action against two persons successively. In later times, such a mandatum was never used. Justinian allowed the creditor to sue the debtor and the surety, the one after the other (B. 3, t. 20, § 4).

§ 3. A mandatum is contracted for the exclusive benefit of a third party, when, e.g., some one was commissioned to transact the business of Titius, to purchase a piece of ground, or to appear for him. Such a mandatum raised no obligatio directly, because the mandator had no inte

rest in its being executed. But if the mandatarius did execute it, the mandator was bound to indemnify him; it might also happen that a mandator who had commissioned another to transact the business of a third party was responsible to the latter for the mode in which the business was done (t. 27), and might, therefore, be interested in the execution of the mandatum; so that there might be ground for the actio directa and contraria mandati.

§ 4. A mandatum was contracted for the benefit of the mandator and of a third party when, e.g., some one commissioned another to conduct business common to himself and to Titius.

§ 5. A mandatum was for the benefit of the mandatarius and of a third party when, e.g., a person commissioned one to lend at interest to Titius; if the mandatum had been to lend it without interest, the benefit would have been for the third party alone.

§ 6. A mandatum was for the sole benefit of the mandatarius when, e.g., I commission you to spend your money on an immoveable thing, rather than in laying it out at interest. Now, this is not so much a mandatum as advice which, if given bonâ fide, does not make me liable in any way to you, even though the advice should turn out badly. There was a question whether a person who commissioned Sempronius to lend his money at interest to Titius was liable to an actio mandati, and it was held that he was; it was thought that such a mandatum was more than mere advice, and that it bound the mandator, because, without the guarantee implied in the mandatum, the mandatarius would not have lent his money.

§ 8. The mandatarius in executing his commission must confine himself within its limits; for if he exceed, then he does something which he is not commissioned to do. Therefore he does not execute the commission, and is liable to the actio directa mandati, but has no actio contraria against the mandator. If a person, therefore, commissioned to buy a piece of land for 100 sesterces, buys it for 150, he has no remedy against the mandator for the 150, and it was even doubted whether he could sue for the 100. The Sabinians allowed him no action whatever; but the Proculeians allowed him one for the sum stated in his commission, and their opinion prevailed. A mandatarius who bought the land for a sum less than that fixed, had his action; for a commission to purchase for 100, includes one to purchase for less if possible.

§ 9. A mandatum was put an end to: 1. By a revocation on the part of the mandator before the commission was executed. 2. By the death of mandator or mandatarius, before the execution of the contract had been begun. If it had been begun, the mandatum was put an end to only for the future: the obligatio, and therefore the actio mandati, continued as to everything done either before the revocation or before the