[GAIUS libro secundo aureorum. ] §44.7.1.prObligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam iure ex uariis causarum figuris. §44.7.1.1Obligationes ex contractu aut re contrahuntur aut uerbis aut consensu. §44.7.1.2Re contrahitur obligatio mutui datione.
Obligations arise either from contract, or from wrongdoing, or by a certain proper law from various types of causes. Obligations from contract are contracted either by a thing, or by words, or by consent. An obligation is contracted by a thing through the giving of a loan.
mutui autem datio consistit in his rebus, quae pondere numero mensuraue constant, ueluti uino oleo frumento pecunia numerata, quas res in hoc damus, ut fiant accipientis, postea alias recepturi eiusdem generis et qualitatis. §44.7.1.3Is quoque, cui rem aliquam commodamus, re nobis obligatur, sed is de ea ipsa re quam acceperit restituenda tenetur. §44.7.1.4Et ille quidem qui mutuum accepit, si quolibet casu quod accepit amiserit, nihilo minus obligatus permanet: is uero qui utendum accepit, si maiore casu, cui humana infirmitas resistere non potest, ueluti incendio ruina naufragio, rem quam accepit amiserit, securus est.
Moreover, the giving of a loan consists of those things which are determined by weight, number, or measure, such as wine, oil, grain, counted money, which things we give for this purpose, that they may become the property of the recipient, being about to receive back later other things of the same kind and quality. He also to whom we lend any thing is bound to us by the thing, but he is held for the return of that very thing which he received. And indeed he who received a loan, if he loses what he received by any chance, remains nonetheless obligated; but he who received a thing for use, if he loses the thing he received by a greater chance which human weakness cannot resist, such as fire, collapse, shipwreck, is free from liability.
alias tamen exactissimam diligentiam custodiendae rei praestare compellitur, nec sufficit ei eandem diligentiam adhibere, quam suis rebus adhibet, si alius diligentior custodire poterit.
Otherwise, however, he is compelled to provide the most exact diligence in guarding the thing, and it is not sufficient for him to apply the same diligence which he applies to his own things, if another more diligent person could have guarded it.
sed et in maioribus casibus, si culpa eius interueniat, tenetur, ueluti si quasi amicos ad cenam inuitaturus argentum, quod in eam rem utendum acceperit, peregre proficiscens secum portare uoluerit et id aut naufragio aut praedonum hostiumue incursu amiserit. §44.7.1.5Is quoque, apud quem rem aliquam deponimus, re nobis tenetur: qui et ipse de ea re quam acceperit restituenda tenetur.
But even in greater chances, if his fault intervenes, he is held; as for instance, if, being about to invite friends as it were to dinner, he wished to carry with him while traveling abroad silver plate which he received for use for that purpose, and lost it either by shipwreck or by the incursion of robbers or enemies. He also with whom we deposit any thing is held to us by the thing; and he himself is held for the return of that thing which he received.
sed is etiamsi neglegenter rem custoditam amiserit, securus est: quia enim non sua gratia accipit, sed eius a quo accipit, in eo solo tenetur, si quid dolo perierit: neglegentiae uero nomine ideo non tenetur, quia qui neglegenti amico rem custodiendam committit, de se queri debet.
But he, even if he lost the thing through negligent guarding, is free from liability; for because he does not receive it for his own sake, but for the sake of him from whom he receives it, he is held in this alone, if anything is lost by fraud; but on account of negligence he is therefore not held, because he who commits a thing to be guarded to a negligent friend ought to complain about himself.
magnam tamen neglegentiam placuit in doli crimine cadere. §44.7.1.6Creditor quoque, qui pignus accepit, re tenetur: qui et ipse de ea ipsa re quam accepit restituenda tenetur. §44.7.1.7Uerbis obligatio contrahitur ex interrogatione et responsu, cum quid dari fieriue nobis stipulemur. §44.7.1.8Sed aut proprio nomine quisque obligatur aut alieno: qui autem alieno nomine obligatur, fideiussor uocatur.
It has been agreed, however, that great negligence falls under the charge of fraud. A creditor also who received a pledge is held by the thing; and he himself is held for the return of that very thing which he received. An obligation is contracted by words from questioning and answering, when we stipulate for something to be given or done for us. But each person is obligated either in his own name or in another's; and he who is obligated in another's name is called a surety.
et plerumque ab eo, quem proprio nomine obligamus, alios accipimus, qui eadem obligatione teneantur, dum curamus, ut quod in obligationem deduximus, tutius nobis debeatur. §44.7.1.9Si id, quod dari stipulemur, tale sit, ut dari non possit, palam est naturali ratione inutilem esse stipulationem, ueluti si de homine libero uel iam mortuo uel aedibus deustis facta sit stipulatio inter eos, qui ignorauerint eum hominem liberum esse uel mortuum esse uel aedes deustas esse.
And we commonly receive from him whom we obligate in his own name others who are bound by the same obligation, while we take care that what we have brought into the obligation may be more safely owed to us. If that which we stipulate to be given is of such a nature that it cannot be given, it is clear by natural reason that the stipulation is void, as for instance if a stipulation has been made concerning a free man, or one already dead, or a burnt house, between those who did not know that the man was free, or was dead, or that the house was burnt.
idem iuris est, si quis locum sacrum aut religiosum dari sibi stipulatus fuerit. §44.7.1.10Nec minus inutilis est stipulatio, si quis rem suam ignorans suam esse stipulatus fuerit. §44.7.1.11Item sub impossibili condicione factam stipulationem constat inutilem esse. §44.7.1.12Furiosum, siue stipulatur siue promittat, nihil agere natura manifestum est. §44.7.1.13Huic proximus est, qui eius aetatis est, ut nondum intellegat, quid agatur: sed quod ad hunc benignius acceptum est: nam qui loqui potest, creditur et stipulari et promittere recte posse. §44.7.1.14Mutum nihil pertinere ad obligationem uerborum natura manifestum est. §44.7.1.15Sed et de surdo idem dicitur, quia, etiamsi loqui possit, siue promittit, uerba stipulantis exaudire debet, siue stipuletur, debet exaudire uerba promittentis.
The same law applies if someone has stipulated for a sacred or religious place to be given to him. Nor is a stipulation less void if someone, not knowing it to be his own, has stipulated for his own thing. Likewise, it is established that a stipulation made under an impossible condition is void. It is manifest by nature that a madman, whether he stipulates or promises, performs no valid act. Nearest to him is one of such an age that he does not yet understand what is being done; but concerning him a more favorable view has been accepted; for he who can speak is believed to be able to stipulate and promise rightly. It is manifest by nature that a mute person has no relevance to an obligation of words. But the same is also said of a deaf person, because, even if he can speak, whether he promises, he must hear the words of the stipulator, or whether he stipulates, he must hear the words of the promisor.
unde apparet non de eo nos loqui, qui tardius exaudit, sed qui omnino non exaudit.
Hence it is clear that we are not speaking of him who hears with difficulty, but of him who does not hear at all.