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On this page: Fntegrum Restitutio – Institutoria Actio – Insula – Intentio – Intercessio



the parchment for the purposes of the transcriber. The parchment, after being thus treated, was used for transcribing upon it some works of Jerome, chiefly his epistles. The old writing was so ob­scure that it could only be seen by applying to it an infusion of gall-nuts. A fresh examination of the MS. was made by Blume, but with little ad­ditional profit, owing to the condition of the manu­script. A second edition of Gaius was published by Goeschen in 1824, with valuable notes, and an Index Siglarurn used in the MS. The preface to the first edition contains the complete demonstra­tion that the MS. of Verona is the genuine Com-mentarii of Gaius, though the MS. itself has no title. An improved edition of Goeschen's by Lach-niann appeared in 1842.

It appears from the Institutiones that Gaius wrote that work under Antoninus Pius and M. Aurelius.

Many passages in the Fragments of Ulpian are the same as passages in Gaius, which may be ex­plained by assuming that both these writers copied such parts from the same original. Though the Institutiones of Justinian were mainly based on those of Gaius the compilers of the Institutiones of Justinian sometimes followed other works : thus the passage in the Institutes (ii. tit. 17. § 2, "si quis priori ") is from the fourth book of Marcianus' Institutes (Dig. 36. tit. 1. s. 29) ; and, in some in­stances, the Institutiones of Justinian are more clear and explicit than those of Gaius. An in­stance of this occurs in Gaius (iii. 109) and the Institutiones of Justinian (iii. tit. 19. s. 10).

Gains belonged to the school of the Sabiniani [JuRiscoNSULTi]. The Jurists whom, he cites in the Institutiones, are Cassius, Fufidius, Javolenus, Julianus, Labeo, Maximus, Q. Mucius, Ofilius, Proculus, Sabinus, Servius, Servius Sulpicius, Sex-tus, Tubero.

The arrangement of the Institutes of Justinian is the same as that of the work of Gains ; what­ever difference there is between them in this re­spect, is solely owing to the changes in the Roman law, which had been made between the time of Gaius and that of Justinian. There has been considerable difference of opinion as to the nature of the ar­rangement of Gaius; and it is obvious that most persons have misunderstood it. According to Gains : "omne jus quo utimur vel ad personas pertinet, vel ad res, vel ad actiones " (i. 8). It is generally supposed that the division (the first book) which treats of Persons comprehends the status or con^ dition of persons as the subjects of rights ; others affirm that it treats of legal capacity, or of the three conditions which correspond to the threefold capitis deminutio. Bat the first book of Gaius which treats of Persons contains both matter which has nothing to do with legal capacity, and it does not contain all that relates to legal capacity, for it does not treat of one of three chief divisions which relatato legal capacity, that of Gives, Latini, Pere-grini. It treats in fact only of Marriage, Patria Potestas, Manus, Slavery, Patronatus with respect to the different classes of freed men, Mancipium and Tutela. According^, this part of the work treats only of persons so far as they belong to Familia, in the widest and Roman acceptation of that term. The part which treats of res com­prehends the Law of ownership, &c. and Law of Obligationes, which two divisions occupy the se­cond and third books. The fourth book treats of


Actiones, which is the third of the three divisions! of Gaius. The division of Gaius is faulty in several respects ; but this does not detract from the merit of the work, which is perspicuous and abounds in valuable matter. This view of the nature of the division of Gaius is from Savigny. (System, &.c., vol. i. p. 393, &c.) [G. L.]

INSTITUTORIA ACTIO. [intercessio.]

INSULA. [domu-s, p. 430, a.]




INTERCESSIO. It is a case of Intercessio when a man takes upon himself the debt of another •by virtue of some dealing with the creditor. This may be in either of the following ways : he who intercedes may take upon himself the debt of another, and may become debtor in place of that other: or the intercedent may become debtor while the debtor still continues debtor. (Vangerow, Pandekten, &c. vol. iii. p. 133, &c.)

To the first class belong (1) the case of a man undertaking an already existing obligatio, so as to exclude the existing debtor ; (2.) And the case of a man taking an obligatio on himself, which does not already exist in the person of another, but which without such intervention would exist.

To the second class belong (1), the case when the creditor may consider either the original debtor or the intercedent as his principal debtor, or when, in other words, the intercedent is correus debendi (Inst. iii. tit. 16. De duobus reis stipulandi ct promittendi) ; (2) When the creditor can consider the intercedent only as liable to pay, when the principal debtor does not pay, or when in other words, the intercedent is a fidejussor. (Inst. iii. tit. 20, de Fidejussoribus.)

The views of Puchta as to the Intercessio are contained in his Institutionen, vol. iii. p. 48, &c.)

In the Institutes of Gaius, a distinction is made between sponsores andfidepromissores, on one side; and fidejussores on the other. With respect to one another, sponsores were consponsores. (Cic. ad Alt. xii. 17.) In the Institutes of Justinian, the dis­tinction between sponsores and fidejussores does not exist.

Sponsores and fidepromissores could only become parties to an obligatio verborurn, though in some cases they might be bound, when their principal ((jui promiserit) was not, as in the case of a pupillus who promised without the auctoritas of his tutor, or of a man who promised something after his death. A fidejussor might become a party to all obligations, whether contracted re, verbis, litteris, or consensu. In the case of a sponsor the interrogatio was, Idem dari spondes ? in the case of a fidepro-missor, it was, Idem fidepromittis ? in the case of a fidejussor, it was, Idem fide tua esse jubes ? The object of having a sponsor, fidepromissor, or fide­jussor, was greater security to the stipulator. On the other, hand, the stipulator had an adstipulator only when the promise was to pay something after the stipulator's death, for if there was no adstipu­lator the stipulatio was inutilis or void. (Gaius, iii. 100, 117.) The adstipulator was' the proper party to sue after the stipulator's death, and he could be compelled by a man dad judicium to pay to the heres whatever he recovered.

The heres of a sponsor and fidepromissor \vas not bound, unless the fidepromissor were a pere­grin us, whose state had a different law on tho

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