In regard to hiring, all sorts of things, which were the subject of commerce, may be let for hire. Leases of land and houses come under this head. They were generally given for five years, and unless there was an express stipulation, the lessee might sublet to another. The lessor was required to deliver the subject in a good state of repair, and maintain it in that condition, and to guarantee its peaceable enjoyment; the lessee was bound to use the subject well, to put it to no use except that for which it was let, to preserve it in good condition, and restore it at the end of the term. He was bound also to pay the rent at the stipulated period, and when two years' rent were in arrear, the tenant could be ejected. The tenant of a farm was entitled to a remission of his rent if his crop was destroyed by an unforeseen accident or calamity. A contractor who agreed to undertake a piece of work was required to finish it in a proper manner, and if from negligence or ignorance the work was defective, he was liable to damages. In a partnership, if there were no express agreement, the shares of profit and loss were divided equally. Each partner was bound to exercise the same care for the joint concern as if it were his own. The acts of one partner were not binding on another, if he acted beyond the scope of the partnership. If one of the partners advanced money on account of the partnership, each of the partners were bound to contribute to the indemnity in proportion to his share of the concern; and if any of them became insolvent, the solvent shareholders were obliged to make up the deficiency. [Footnote: D. 17, 2, 67.] An agent could be employed to transact business for another, but was required to act strictly according to his orders, and the mandant, who gave the orders, was bound to ratify what was done by the mandatary, and to reimburse him for all advances and expenses incurred in executing the commission. By the Roman law agents were not remunerated. Donations could not be made beyond a certain maximum. Justinian ordered that when gifts exceeded five hundred solidi, a formal act stating the particulars of the donation should be inscribed in a public register.
When a person spontaneously assumed the management of the affairs of another in his absence, and without any mandate, this was called negotiorum gestio, and the person was bound to perform any act which he had begun, as if he held a proper mandate, and strictly account for his management, while the principal was bound to indemnify him for all advances and expenses.
When money was paid through error it could be recovered, under certain circumstances. But this point is a matter concerning which the jurists differ.
[Sidenote: Libels.]
[Sidenote: Damages.]
Acts which caused damage to another obliged the wrongdoer to make reparation, and this responsibility extended to damages arising not only from positive acts, but from negligence or imprudence. In an action of libel or slander, the truth of the allegation might be pleaded in justification. [Footnote: D. 47, 10, 18.] In all cases it was necessary to show that an injury had been committed maliciously. But if damage arose in the exercise of a right, as killing a slave in self-defense, no claim for reparation could be maintained. If any one exercised a profession or trade for which he was not qualified, he was liable to all the damage his want of skill or knowledge might occasion. When any damage was done by a slave or an animal, the owner of the same was liable for the loss, though the mischief was done without his knowledge and against his will. If any thing was thrown from a window of a house near the public thoroughfare, so as to injure any one by the fall, the occupier was bound to repair the damage, though done by a stranger. Claims arising under obligations might be transferred to a third person, by sale, exchange, or donation; but to prevent speculators from purchasing debts at low prices, it was ordered that the assignee should not be entitled to exact from the debtor more than he himself had paid to acquire the debt with interest,—a wise and just regulation which it would be well for us to copy. In regard to the extinction of obligations the creditor is not bound to accept of payments by instalments, or any thing short of proper payment at the time and place agreed upon. When several debts were due, the debtor, in making payment, could appropriate it to any one he pleased. [Footnote: D. 46, 3, 1.] When performance became impossible, without any fault of the debtor, such as when the specific subject had perished by unavoidable accident, the obligation was extinguished; but if the impossibility was caused by the fault of the debtor, he was still liable. This was a great modification of the severity of the ancient code, when a debtor could be sold into slavery for his debt. As certain contracts are formed by consent alone, so they could be extinguished by the mutual consent of the contracting parties, without performance on either side. In some cases the mere lapse of time extinguished an obligation, as in accordance with the modern system of outlawry.
[Sidenote: Law of actions.]
The next great department of Roman jurisprudence pertained to actions and procedure. The state conferred on a magistrate or judge jurisdiction to determine questions according to law. Civil jurisdiction pertains to questions of private right; criminal jurisdiction takes cognizance of crimes. When jurisdiction was conferred on a Roman magistrate, he acquired all the powers necessary to exercise it. The imperium merum gave the power to inflict punishment; the imperium mixtum was the power to carry civil decrees into execution. A real action was directed against a person in the territory where the subject in dispute was located.
By the ancient constitution, the king had the prerogative of determining civil causes. The right then devolved on the consuls, afterwards on the praetor, and in certain cases on the curule and plebeian ediles, who were charged with the internal police of the city.
[Sidenote: The Praetors.]