CHAPTER XIV.

QUASI CONTRACTUS.

THE "quasi contractus" is a transaction carried on by a tacit agreement between the parties, and without any express consent or agreement, and which gives rise to an obligation strictly analogous to that resulting from a contract.

There are five special "quasi contractus," the "negotiorum gestio," the "tutelæ vel curæ administratio," the "rei communio," the "hæreditatis acquisitio," and the "indebiti solutio."

The "negotiorum gestio" is the voluntary management of another man's business without his mandatum.

It gives rise to two actions, the "directa" and "contraria."

The "directa," for the dominus against the "negotiorum gestor," to give an account of what he has done.

The "contraria," for the negotiorum gestor against the dominus, to repay the sums he has laid out for the benefit of the latter in the administration of his affairs.

The "negotiorum gestor" was bound to give "exactissima diligentia."

The "administratio tutela" was a "quasi contractus."

It gave rise to an "actio directa" for the "pupillus," when the tutela had expired, against his "tutor," in which the tutor was responsible for the levis, not for the levissima culpa; it being sufficient that he should apply the vigilance of a diligens paterfamilias to the affairs of his pupillus.

The tutor was not only responsible for the loss incurred by his maladministration, but for the gain not acquired and that might have been won.

The "actio contraria" lay for the "tutor" against the "pupillus," to recover the sum spent by the "tutor" in the administration of his affairs.

The Code laid it down that all the goods of the tutor were ipso jure hypothecated to the pupillus. So were the goods of the step-father' who married the mother of the pupillus, until he had given his accounts of the "tutela."

The "rei communio," as if the same thing had been bequeathed to two persons, was a quasi contractus, and gave rise to an action; if, for instance, one of the two had laid out money on the thing, or had received the profit of it.

If it was a particular thing, it gave rise to the action "communi dividundo;" if it was the "communio hæreditatis," to the "actio familiæ erciscundæ."

The "consortes" in such a case were bound to employ the same diligence they used in their own affairs, and no more, "quia eos res non consensus socios facit."

The hæreditatis acquisitio was a "quasi con

1 L. unica 1 Cod. de Rei uxoris actione. L. 20. Cod. quando mulier

tutelæ officio fungi possit.,

2 II. Familiæ erciscundæ, 25.

tractus," because by accepting the inheritance the hæres obliged himself to pay the legatees.

The legatees therefore had an action against the heir "quasi contractus." This was "in personam," but the legatee, if a "certum corpus" had been bequeathed to him, had also an action against any possessor for the thing "in rem."

The "actio hypothecaria" also lay against any possessor of the things belonging to the inheritance.

The "indebiti solutio" was also a "quasi contractus" if it happened from ignorance of fact, not of law.

Whether money paid "per errorem juris" could be recovered has been matter of much dispute.

The man who, pretending to be a creditor, received what was not due to him, committed a "furtum," and was liable "actione furti."

DE RESCINDENDA VENDITIONE'.

A sale might be set aside for the reasons just stated, for causes which gave rise to the "actio redhibitoria," for want of free consent, and for excessive injury to one of the parties. What should amount to this "immodica læsio" was left to the arbitrium of the judge', till by a rescript of Diocletian and Maximinian the injury was fixed as what must amount to one half of the price, leaving it however at the

1 II. 18. 5. Cod. 4. 44. Merlin, Répertoire Lésion. Cod. Nap. 16741685. Pothier, Contrat de Vente, 331.

II. 23. 3. 12. 17. 2. 79. 16. 3. 2.

"Si Nervæ arbitrium ita pravum est ut manifesta iniquitas ejus appareat corrigi potest per judicium bonæ fidei." 3 Cod. 4. 44. § 2. § 8.

choice of the buyer to pay the remainder of the sum, and keep his purchase'.

ACTIO PRO SOCIO".

The "socius" was bound to exercise the same diligentia" in the affairs of the society that he did in his own: he was liable to pay interest on money belonging to the partnership that he had employed for his own purposes. The share of loss arising from the insolvency of one socius was to be equally divided among his partners. No partner could claim a share in the illicit gains of another3. But he might call on the partnership to share the loss of an unjust sentence. In a "societas omnium bonorum" the partner was bound to fling the damages he had recovered in an action, "ob injuriam sibi factam vel lege Aquiliâ," into the common stock'.

The societas was ended by the expressed dissent of any one of its members, but that dissent must not be expressed under circumstances leading to the inference of bad faith. For instance, in a "societas omnium bonorum" a socius could not extricate himself from its obligations by renouncing it the moment

an inheritance had fallen to him. The effect of such conduct was "a se quidem liberare socios suos, se autem ab illis non liberare1."

The effect of the renunciation of one was to break up the partnership. If the remaining partners chose to continue in partnership, it was a new one into which they entered".

In the case of an absent partner the renunciation did not operate to his loss till the intelligence reached him: it might to his advantage, as all he gained in the interval was his own, while the renouncing partner was found to take his share of loss; and if the renouncing partner met with any loss, it fell exclusively upon himself3.

A "pactum ne abeatur a societate" was not binding, neither did an agreement "ne intra certum tempus abeatur" confer any advantage on the partner who would insist upon it.

Besides this termination of a partnership by the will of one of the members, it might without their will be terminated by the death, the "maxima or media capitis diminutio" of a member, by the destruction or change of character in the subjectmatter of the partnership, or by action when the causa societatis" was altered by a "stipulatio," or a judicial sentence.

A partnership could not be made binding on the heir of a partner, it being a maxim, "societatem non posse ultra mortem porrigis." The farmership of

1 II. 17. 2. 65. § 3.

2 Inst. 3.

3 II. 17. 2. 17. § 1.

4

17. 2. 14. 16.

68. § 10. 65. h. t.

6 65. § 9. h. t.