!!Экзамен зачет 2023 год / The Law of Obligations

did) was required on the part of the creditor to make him liable is not entirely clear;110 in any event, he had to be careful because

condemnation involved infamia111 and this, in turn, severely affected his own standing within the community. But even apart from this, a necessity to create legal rules about the order in which "principal" debtor and surety had to be approached seems not to have really arisen in classical law, because suretyship was not primarily regarded as an alternative avenue to obtain satisfaction, but rather as a means to exercise pressure.112 If amicitia demanded that one stood surety for one's friend, then, by the same token, it was the debtor's officium to do everything in his power not to let his friend's liability materialize. Similar considerations applied where the wealthy patronus succoured his clients: their social status being ultimately dependent on his patronage, they must have considered it imperative to avoid any inconvenience to their benefactor. Thus, again, they would have tried their best, without further ado, to bring his liability to an end. Therefore, even where it had become necessary for the creditor to remind either "principal" debtor or surety that the debt had fallen due, the ensuing negotiations between creditor and debtor or between surety and debtor usually resulted in the debtor settling his debt (as long, of course, as the claim against him was well founded and he was able to pay) rather than having to face the consequences of the creditor's taking action against the surety.

2. Beneficium divisionis

In another very important respect, the lot of sureties had already been relieved in classical law by a rescript of the Emperor Hadrian.

"fF]ideiussores . . . perpetuo tencntur, ct quotquot erunt numero, singuli in solidum obligantur. itaque liberum est creditor! a quo velit solidum petere. sed nunc ex epistula divi Hadriani compellitur creditor a singulis, qui modo solvendo sint, partes petere."111

This sounds like the lex Furia rediviva: the debt was to be divided per capita between the various co-sureties. But there were important differences between that earlier piece of legislation and the epistula Hadriani. The latter granted only a beneficium divisionis of which each surety, when sued, could, but need not, avail himself. In law, fideiussores remained liable in full. Thus if one of them had paid the whole amount, only to find out that the "principal" debtor had fallen insolvent, the loss was entirely his. Neither was the creditor unjustifiedly enriched (the surety had not paid indebitum), nor was there, failing special legislation after the model of the lex Appuleia, a

110Raber, Injurienanspruche, pp. 150 sqq.

111Gai. IV, 182. On infamia cf. infra, p. 207.

112J. Macqueron, "Le cautionnement moyen de pression", (1957) 5U Annales de la Faculte de droit d'Aix-en-Provence 97 sqq.

113Gai. III, 121. For the background cf. Liebs, Klagenkonkurrenz, pp. 186 sqq.

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general right of recourse against the other fideiussores. ". . . et sibi imputare debet, cum potuerit . . . desiderare ut pro parte in se detur actio":114 he has only himself to blame, since he could have availed himself of the beneficium. The fact that the obligation was not divided ipso iure as between the various co-sureties,115 but that this concession had to be applied for, before the magistrate, at the time when action was brought, had another important consequence: no longer was each co-surety liable for his proportionate share, regardless of whether one or more of the others had in the meantime become insolvent;116 for the calculation of the shares it mattered only how many co-sureties were solvent "litis contestatae tempore".117 If, for example, A, B and C had been fideiussores for a debt of 120, the creditor could claim 40 from each of them, if all were solvent at the time of litis contestatio and had availed themselves of the beneficium divisionis. If, however, C was insolvent at the time when A and B were sued, the liability of each of them increased to 60. Thus, in contrast to the rather inflexible regime of the lex Furia, the co-sureties now had to carry the risk of insolvency of one or more of their number,118 and this, undoubtedly, represents the more appropriate solution to the problem.

3. Beneficium cedendarum actionum

The triplet of privileges available to the surety was completed by the so-called beneficium cedendarum actionum. It had classical roots, but was first shaped into a general right by Justinian. It aimed at providing the surety who had discharged the obligation, with a right of recourse against the principal debtor and/or his co-sureties.

(a) The problem of the surety's right of recourse against the main debtor

Such a right of recourse against the principal debtor had always existed with regard to sponsio: according to a lex Publilia (dating from about the 4th/3rd century B.C.), the sponsor could avail himself of an actio depensi if he had not been reimbursed within six months.119 This liability of the debtor towards the sponsor, incidentally, had not been introduced by the lex Publilia.120 Sponsio was one of the early "liability transactions" by means of which the pledge-like power of seizure, which arose as a consequence of wrongful acts, could be created by the parties.121 Where a third party had released the debtor from the

114Inst. Ill, 20, 4.

115Gai. D. 46, 1, 26.

116Cf. supra, p. 119.

117Inst. Ш, 20, 4.

118Gai. HI, 121.

119Gai. Ill, 127; IV, 22. For a recent discussion, see Max Kaser, "'Unmittelbare Vollstreckbarkeit' und Burgenregress", (1983) 100 ZSS 106 sqq.

120For the following, see Kaser, RPr I, p. 153; idem, Altromisches ius, p. 131 sq.; idem,

(1983) 100 ZSS 100 sqq.

121 Cf. supra, pp. 4 sqq.

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creditor's power, the formal solutio per aes et libram originally122 effected a transfer of the creditor's power over the debtor to the third party, in return for payment (depensum — from "dependere", "to weigh out") of the ransom. This liability under the third party's recourse, arising from the transfer of power, was at first immediately executable; later on, an action was introduced which had to be brought first, so as to allow a court to go into the matter and examine possible

defences of the debtor before manus iniectio could take place.123 This was the actio depensi.124 The purpose of the lex Publilia, in the days

when recourse could be had by the sponsor without prior lawsuit and judgment, had been to alleviate his position by granting a period of six months within which to satisfy the claim of his new creditor.125

In the case of fideiussio,126 the actio depensi did not apply. That did not mean that the fidejussor never had any right of recourse against the principal debtor; whether or not he had depended entirely on his internal relationship with the latter. In most cases, the fideiussor would have stood surety at the request of the principal debtor, with the result that a contract of mandatum would have come into existence.127 Thus, the surety had the actio mandati contraria to claim reimbursement for his expenses incurred, that is, in this instance, the sum he had to pay the creditor.I28 Where, on the other hand, the surety had not acted under an express or tacit mandate, but had, for example, wanted to assist his absent friend by standing surety for him, the actio negotiorum gestorum contraria was available to him.129 So it was normally only where the suretyship obligation had been incurred against the wishes of

122Se e Kase r, R Pr I , p. 172; ide m, A ltrOm isc he s ius, pp. 240 sqq. ; Rolf Knute l, "Zum

Prinzip der formalen Korrespondenz im romischen Recht", (1971) 88 ZSS 75.

123However, litiscrescence (infitiando lis crescit in duplum) remained a characteristic of this action: sec Gai. IV, 9; 171 and Kaser, Altromisches ius, pp. 118 sqq.

124"Depensi", because the action arose where payment had been effected by the third party by means of an act per aes et libram, in the course of which the sum had originally been weighed out. In classical law, solutio per aes et libram was used only for the purpose of release and took place nummo uno: see Gai. Ill, 173-5, and infra, p. 756.

125Paul Koschacker, (1916) 37 ZSS 361 sqq.; differently e.g. Francesco de Martino, Studi sulle oaranzie personali II (1938), pp. 42 sqq.

12And also of fidepromissm. The applicability of the actio depensi and lex Publilia were

the only questions in regard to which there was a significant difference between the rules relating to sponsio and fidepromissio. As far as the redress of the fidepromissor against the principal debtor was concerned, see Watson, Obligations, pp. 7 sq.

127 Gai. Ill, 127; Ulp. D. 50, 17, 60; Frezza, Garanzie, vol. I, pp. 162 sqq.; Gunter Wesener, "Die Durchsetzung von Regressanspruchen im romischen Recht", (1965) 11 Labeo 343 sqq.; cf. also Roger Vigneron, "Fideiussor, qui pecuniam deposuit, confestim agere mandati potest", (1974) 77 BIDR 443 sqq.; Kaser, (1983) 100 ZSS 124 sqq.

12H The surety, however, must not have failed to set up exceptiones which were available against the debtor and of which he was aware, and he generally had to have been diligent in conducting the case: cf. Ulp. D. 17, 1, 29 pr., 2-4.

129 Paul. D. 17, 1, 20, 1; Seiler, Negotiorum gestio, pp. 120 sqq.

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the principal debtor that an avenue for recourse did not exist.130 Nevertheless, the classical lawyers conceived of another possibility enabling the fideiussor to secure his position as far as his right of recourse was concerned: he had to pay only once the creditor had transferred to him, by way of procuratio in rem suam, his own claim against the debtor.131 The surety could then use the creditor's old claim for reimbursement purposes.

One might ask what advantage there was for the surety in acquiring this additional action. Indeed, under the actiones mandati contraria and negotiorum gestorum contraria, he could claim not only the amount of the debt he had paid but also any other loss or expense incurred by him as a result of the debtor not having met his obligation—and this was not possible if he used the creditor's claim that had been ceded to him. But then this latter claim was independent of whatever internal relationship might have existed between the principal debtor and the surety and it was available even where the requirements of the actions arising from mandate or negotiorum gestio did not exist, or (especially) where they could not be proved (or were difficult to prove). Furthermore, these latter remedies were often practically useless, for, where the surety had been called upon to pay, it was not unlikely that the debtor was insolvent. The creditor's right, on the other hand, might well have been superior: either by virtue of being privileged in rank or of being strengthened by real security.132

(b) The construction of the beneficium cedendarum actionum

There was, however, one particular difficulty as far as this "cession" of the creditor's right was concerned. Once the surety had paid, not only his own but also the principal debtor's obligation was discharged. Consequently, the creditor, having obtained full satisfaction, no longer had any right to cede; to effect this cession before payment was made did not obviate the problem, for payment still extinguished the obligation. How, therefore, could the surety assert the creditor's right when this had ceased to exist?133 The answer of the Roman jurists can be found in texts such as Paul. D. 46, 1, 36:

"Cum is qui et reum et fideiussores habens ab uno ex fideiussoribus accepta pecunia praestat actiones, poterit quidem dici nullas iam esse, cum suum perceperit et

130 Cf. Paul. D. 17, 1, 40. This is in accordance with the prevailing opinion (C. 2, 18, 24) that there was no claim for reimbursement of outlays for the gestor who had acted against the will of the principal; cf. Seiler, Negotiorum gestio, pp. 86 sqq.; also Wessels, Contract, §§ 4155 sq.

131 Frezza, Garanzie, vol. I, pp. 18U sqq.; Wesener, (1965) 11 Labeo 346 sqq.; Giuseppe Provera, "Riflessioni sul beneficium cedendarum actionum", in: Studl in onore di Cesare San?ippo, vol. IV (1983), pp. 609 sqq.

12 Cf. e.g. the case on which the decision C. 8, 40, 2 is based.

133 A further problem could arise where the creditor had sued the surety: litis contestatio would then (even before solutio) have destroyed not only the surety's but also the main debtor's obligation (both were for eadem res). Here, the Roman lawyers seem to have helped by means of in integrum restitutio: cf. Levy, Konkurrenz, vol. I, pp. 225 sqq.

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perceptione omnes liberati sunt, scd non ita est: non cnini in solutum accipit, scd quodammodo nomcn debitoris vendidit."

The whole device is treated as a contract of sale, where the surety purchases the creditor's action rather than discharges his obligation. By how far that misses the psychological realities of the situation hardly needs to be stressed; the fiction has, accordingly, been severely criticized.134 Yet, to object to the unrealistic nature of the argument does not seem entirely fair; for the characteristic feature of a fiction is that it deals with a particular set of facts as if a different set of facts were at issue.135 Also, the Roman lawyers always seem to have been aware of the fictitious nature of this purchase contract136 and were not led to inappropriate consequences and distortions.137 As far as the development of recourse devices is concerned, the argument certainly played a very useful role.138 In fact, it seems to have been extended in the course of time.139 At first, a specific agreement concerning the cession between surety and creditor was probably necessary (only the interpretation of this agreement as a contract of sale was fictitious), and this agreement, of course,140 had to be made before solutio had taken place.141 We find other texts, however, where no such time limit was acknowledged; Paul. D. 46, 1, 36 provides an example: the ablativus absolutus "accepta pecunia" indicates that the surety had already paid before the action was ceded to him. In cases such as this, some Roman lawyers apparently did not want to let the principal debtor benefit from a lack of circumspection on the part of the surety. Thus, they did not even require a real conventio between the two parties (which had to have taken place before solutio) any more, but boldly read this whole agreement into the transaction by way of fiction. The Imperial chancellery, however, does not seem to have adopted this broader view,142 but rather started to require the creditor to effect this transfer of

134 Cf. e.g. Fritz Schulz, Ruckgriff und Weitergriff {\9Q7), p. 27.

13э Cf. esp. Dieter Medicus, "Der fingierte Klagenkauf als Denkhilfe fur die Entwicklung des Zessionsregresses", in: Festschrift fur Max Kaser (1976), pp. 391 sqq.; 396 sqq. On the use

officiions generally, ci. the references quoted supra, p. 64, note 219.

136 Cf. Paul. D. 46, 1, 36: "quodammodo"; M od. D. 46. 3, 76: "magis - . . vidcatur".

137This is one of the great dangers of developing the law by means of fictions.

138It was still used by the German legislator to justify the cessio legis of § 774 BGB: cf. "Motive", in: Mugdan, vol. II, p. 376.

139Medicus, Festschrift Kaser, pp. 402 sqq.

140Payment was supposed to discharge the actio venditi and thus to leave the claim for which the surety had made himself liable intact. If no contract of "sale" had been made at the time of solutio, solutio could be taken only to have discharged the main debtor's (and the surety's) obligation.

141Cf. Mod. D. 46, 3, 76: "Modestinus respondit, si post solutum sine ullo pacto omne,

quod ex causa tutelae debeatur, actiones post aliquod intervallum cessae suit, nihil ea cessione actum, cum nulla actio superfuerit: quod si ante solutionem hoc factum est vel, cum convenisset, ut mandarentur actiones, tunc solutio facta esset mandatum subsecutum est, salvas esse mandatas actiones, cum novissimo quoque casu pretium magis mandatarum

actionum solutum quam actio quae fuit perempta videatur." 142 C. 5, 58, 1 (Sev. et. Ant.); 8, 40, 11 (Alex).

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his rights against the principal debtor:

"Creditor!, qui pro eodem debito et pignora et fideiussorem accepit, licet, si malit, fideiussorem convenire in earn pecuniam, in qua se obligaverit. quod cum facit, debet ius pignorum in eum transferre."143

It is along these lines that Justinian introduced the beneficium cedendaruni actionum as a general right of the surety to demand cession before discharging his suretyship obligation.144

(c) The recourse ofthe surety against his co-sureties

Regarding the recourse of the surety who had paid the whole amount against possible co-sureties, the matter had been regulated by the lex Appuleia for sponsio and fidepromissio transactions. Whether the provisions of this law had survived the introduction of the lex Furia is, as we have seen,145 very doubtful. Seeing that the surety was now liable for his aliquot part only, he hardly needed any action against his cosureties any longer. Again, however, this regime did not apply to fideiussio. In contrast to the situation governing his recourse against the principal debtor, the surety did not normally have any actions arising from an internal relationship with the co-sureties either: unless, for instance, they had contracted inter se to bear their share of the debt, a contractual or quasi-contractual nexus between them usually did not exist; and failing specific legislation to this effect, one could not simply somehow throw them together into some sort of partnership ("quandam societatem").146 In this predicament, the Roman lawyers once again helped with a beneficium cedendarum actionum, again dressed up, initially as a contract of sale. From D. 46, 1, 17147 we know that, already by the time of Iulianus, the praetor was prepared to force the creditor to cede his action against the debtor to the surety. However, the introduction of the beneficium divisionis under Hadrian had a similar effect on the praetor's willingness to intervene in this way as the lex Furia had had on the provisions of the lex Appuleia: where a surety could avail himself in the first place of this more favourable beneficium, which enabled him to reduce his liability to his aliquot share, there was no longer any necessity for the praetor to rush to his aid. Of course, the creditor was perfectly free to cede his actions against the co-sureties voluntarily. But otherwise we find the praetor intervening on behalf of the surety only in situations where the

143C. 8, 40, 2 pr. (Sev. et. Ant.).

144Nov. 4, 1 in fine (". . . a creditore actionibus sibi cessis").

145Supra, pp. 119 sq.

146Gai. HI, 122, referring to the lex Appuleia.

147"Fideiussoribus succurri solet, ut stipulator compellatur ei, qui solidum solvere paratus est, vendere cetcrorum nomina." On this text, see Medicus, Festschrift Kaser, pp. 394 sqq.; Provera, Studi San?lippo, vol. IV, pp. 636 sqq.

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beneficium divisionis had not been available to him.148 This is the background of Pap. D. 46, 6, 12: "Si plures fideiussores a tutore pupillo dati sunt, non esse eum distringendum, sed in unum dandam actionem ita, ut ei, qui conveniretur, actiones praestarentur." Where a tutor had provided for several co-sureties on behalf of his ward, the ward was allowed to sue each of them for the whole; in the interests of the ward, the beneficium divisionis was not granted under these circumstances. On the other hand, it was then only just and reasonable to require the ward to cede his actions against the co-sureties. In the end, therefore, it was not the ward but one of the sureties who had to face the problem of getting his money back from all the others. Again, however, it was Justinian who generalized this idea by granting a beneficium cedendarum actionum to any surety149 (and, indeed, to all joint debtors)150 who had paid solidum.

VI. SPECIAL TYPES OF SURETYSHIP TRANSACTIONS

1. Promissio indemnitatis and fideiussio fideiussoris

We have so far largely been dealing with the standard form of fideiussio. Suretyship, however, gave the Roman lawyers ample opportunity to display their ingenuity in devising special types of transactions to meet special circumstances or to get around some of the more cumbersome edges of fideiussio. Promissio indemnitatis has been mentioned already.151 This way of drafting the suretyship stipulation seems to have become fairly popular in classical law, because it had advantages for both the creditor and the surety: for the creditor it provided a convenient way of avoiding the consequences of litis consumptio; for the surety it was favourable in that it made his liability a subsidiary one. The fideiussor fideiussoris (achterborg, Nachburge, rear-surety) is another example.152 He undertook a suretyship for a surety, thus guaranteeing not the obligation of the principal debtor but that of the first surety. By using this form of rear-suretyship, the creditor had the benefit of the additional security afforded by a plurality of sureties, while on the other hand evading the inconvenience of having to sue all of them individually for their proportionate share (in case they chose to avail themselves of the beneficium divisionis).

Cf. Levy, Sponsio, pp. 164 sqq.; Frezza, Garanzie, vol. I, pp. 186 sqq.; but see Provera. Studi Sanfilippo, vol. IV, pp. 636 sqq.

149Cf. e.g. Windschcid/Kipp, § 481, 3.

150As far as the right of recourse between joint debtors is concerned, cf. Wesener, (1965) 11 Labeo 35U sqq.; Kaser, RPr II, pp. 456 sq. For an evaluation of the historical development

of the right of recourse in Roman law generally, see Wesener, pp. 360 sq.

151Cf. supra, note 86.

152Cf. e.g. Ulp. D. 46, 1, 8, 12 and Caney/Forsyth, op. cit.. note 49, p. 48.

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2. The use of emptio venditio for the purpose of suretyship

Even more interesting are the cases where the Roman lawyers used consensual contracts for the purpose of suretyship. Thus, for instance, the late Republican jurists already seem to have devised a transaction, by means of which a result very similar to fideiussio could be achieved, but which avoided certain of its disadvantages, especially litis consumptio, and also all the inconveniences relating to the oral formality of stipulation. The creditor would ask his debtor to mandate a third party (Seius) to buy his claim. Normally, the purchase price which Seius had to pay was less than the amount of the debt which was the object of the transaction. Thus, the creditor could claim the purchase price from Seius (not the full amount of his claim against the debtor; that was the disadvantage of this construction) in case the debtor fell insolvent or was not able to pay for any other reason. Once Seius had paid the purchase price, he (Seius) could try to recover his expenses from the debtor (on the basis of his actio mandati contraria). A transaction of this type had been concluded in the much-disputed fragment Ofilius/Ulp. D. 44, 4, 4, 6:

"Quod si is, cui pecunia debcatur, cum debitore decidit et nomen eius vendidit Seio, cui debitor mandaverat, ut nomen emeret, deque ea re emptor stipulatus est, deinde creditor earn pecuniam retinet, quam per iudicem abstulit, an emptor ex stipulatu possit experiri? et Ofilius putat, si venditor nominus paratus non sit reddere, quantum ab emptore acceperit, non nocituram exceptionem doli mail: et puto sententiam Ofilii veram."153

Here, the debtor had agreed to mandate Seius to buy the creditor's claim as part of a settlement ("decidit") with his creditor (who, in turn, might have granted indulgence; the text does not inform us about the creditor's concession). The purchase of the claim had been accompanied by a stipulation, according to which (i.a.) the creditor had promised to hand over to Seius whatever he might receive under his claim from the debtor. The creditor thus had a choice: he could either sue his debtor and then, if unsuccessful, proceed against Seius, or he could claim the purchase price from Seius immediately. This is what he seems to have done in the present instance. However, later on, and against all expectations, he received the full debt from the debtor. It is obvious that under these circumstances he could not be allowed to keep both sums. The question is whether he now had to hand over to Seius the full amount he had received from his debtor or whether he could keep the amount by which the debt exceeded the purchase price. According to Ofilius, the creditor could meet Seius' action arising from the stipulation with an exceptio doli, if he was prepared to pay back as

153 As to the interpretation of this text, I follow Andreas Wacke, "Ofilius D. 44, 4, 4, 6. Ein Forderungskauf zu Burgschaftszwecken", (1970) 17 RIDA 345 sqq.; cf. also Dieter Norr, "Bemerkungen zur spatrepublikanischen Kautelarpraxis", in: Eranion in honorem G.S. Maridakis (1963), vol. I, pp. 204 sqq.; Geoffrey MacCormack, "'Dolus' in Republican Law", (1985) 88 BIDR 35 sq. and (differently) Watson, Obligations, pp. 261 sqq.

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much as he had received from him (Seius). In other words: Seius was not meant to benefit from the transaction; it would not have been in accordance with what the parties had intended (namely a form of suretyship) if Seius had been able to claim the full sum of the debt which the creditor had been able to recover. Should he have tried to do that, his behaviour would have been classified as fraudulent, i.e. the creditor could have raised the exceptio doli.

3. The use of manda turn, especially the mandatum qualificatum

More often than emptio venditio, however, the Romans employed the contract of mandatum in the present context. That could happen even where a fideiussio had already been concluded. Thus, the creditor could arrange with the fideiussor to be mandated by him to sue the debtor.154 In this way, the vexed problem of litis consumptio could be obviated; for whilst the creditor's action arising from the fideiussio was still consumed, an actio mandati contraria remained available to him against the fideiussor even after his unsuccessful attempt to obtain his satisfaction from the debtor. At the same time, this construction ensured that the creditor instituted legal proceedings against the principal debtor first, before turning to the fideiussor. More importantly, however, the contract of mandate could often be used in the place of fideiussio, i.e. as an alternative form of suretyship.155 If Maevius requested Titius to lend money to Seius, he had in actual fact become surety for Seius: for if the latter failed to repay, Titius could sue Maevius with the actio mandati contraria for reimbursement on the ground of his having suffered loss in carrying out the request.156 The validity of this type of transaction (which came to be called "mandatum qualificatum" since the days of the commentators) was disputed at first, because, according to Servius Sulpicius, the mandator/surety himself (Maevius) had no actionable interest in the fulfilment of the mandate; however, Sabinus' opposite opinion seems to have prevailed,157 and in classical law this device was apparently fairly popular.158 It differed from fideiussio in that litis contestatio with the debtor did not consume the action against the mandator/surety.154 Thus, the creditor could

154Paul. D. 17, 1, 22, 2; cf. also Inst. Ill, 26, 2.

155Cf. G. Bortolucci, "Ilmandatodicredito", (1915) 27 BIDR 129 sqq., (1916) 28 ВЮЯ 191 sqq.; Frezza, Garanzie, vol. I, pp. 199 sqq.; Antonio Guariiio, Mandatum credendi (1982); Buckland/Stcin, pp. 519 sqq.; Kaser, RPr I, p. 666; II, pp. 460 sq.; Schulz. CRL, p. 558; Girtanner. pp. 60 sqq.; Windscheid/Kipp, § 412, 2; 476, n. 3.

156A practical disadvantage of the mandate was that it had to be undertaken before the principal obligation (cf. Ulp. D. 17, 1, 12, 14: "Si post croditam pecuniam mandavero crediton credendam, nullum esse mandatum rectissime Papmianus ait"), whereas the fideiussor could accede beforehand or (as is the usual case) afterwards. As to the question of

ratihabitio, see Frezza, Garanzie, vol. I, pp. 212 sqq.

157Gai. Ill, 156.

158Jolowkz/Nicholas, p. 301 even say "extremely common"; cf. also Watson, Mandate,

p. 84.

159Pap. D. 46, 1, 52, 3; Just. C. 8, 40, 28 pr. (by implication).

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choose whom to sue first;160 in case he did not obtain satisfaction from the one, he was not barred from proceeding against the other. Furthermore, due to the informal, consensual nature of mandatum, this type of suretyship could be concluded inter absentes, which was, of course, not possible in the case of fideiussio. Also, the mandatum qualificatum, like all consensual contracts, gave rise to iudicia bonae fidei: the judge, according to the procedural formula, was requested to condemn the defendant into "quidquid . . . dare facere oportet ex fide bona" and therefore had a wide discretion to assess the obligations of the parties in accordance with the equities of the individual case. The action arising from fideiussio, on the other hand, was stricti iuris. Thus, for instance, the creditor lost his right of recourse against the surety/mandator where a mandatum qualificatum had been concluded, if his action against the debtor failed due to his own negligence: "Si creditor a debitore culpa sua causa ceciderit, proper est, ut actione mandati nihil a mandatore consequi debeat, cum ipsius vitio accident, ne mandatori possit actionibus cedere." The creditor was therefore taken to owe a duty of care towards the surety. There was no room for duties of this kind in the case of fideiussio. The stipulation by means of which it was concluded was a unilaterally binding contract which only placed the surety under an obligation to perform. As the action was stricti iuris, the judge did not have any discretion to derive reciprocal duties from or ascribe them to this contract.161

The Roman lawyers, of course, realized the true function of this type of mandatum. Thus a tendency is noticeable to treat it as a kind of suretyship and to apply, for instance, the beneficium divisionis where there was a plurality of mandators,162 or to allow the mandator to raise

not only his own but also the debtor's exceptiones when he was sued by the creditor.163 On the other hand, due to the bonae fidei nature of its

actions, mandatum qualificatum sometimes served as a model for the

Ш) Schindler, Justitiians Haltung zur Klassik, pp. 38 sqq.

161Cf. Scaev. D, 46, 1, 62: "Si fidejussor creditori denuntiaverit, ut debitorem ad solvendam pecuniam compcllcret vel pignus distraheret, isque cessaverit, an possit eum fideiussor doli mali exceptione summovere? respondit non posse." There was, however, one instance of fideiussio in which the creditor did have such a duty: promissio indemnitatis. Mod. D. 46, 1, 41 pr.: "Respondit, si fideiussores in id accepti sunt, quod a curatorc servari non possit, et post impietam legitimam aetatem ram ab ipso curatore quam ab heredibus eius solidum servari potuit et cessante eo, qui pupillus fuit, solvendo esse desierit: non temere utilem in fideiussores actionem competere." The reason for this decision is not given by Modcstinus; it seems to lie in the nature of a fideiussio indemnitatis as a conditional promise (Paul./Pap. D. 45, 1, 116), to which the rule applied that the condition is deemed not to have been fulfilled, if the party to whose advantage it would have operated was responsible for its fulfilment. Cf. Rolf Knutel, "Zur Frage der sog. Diligenzpfhchten des Glaubigers gegenuber dem Burgen", in: Festschrift fur Werner Flume, vol. I (1978), pp. 568 sqq. and infra, p. 729.

162Cf. Pap. 27, 7, 7 in fine (interpolated?) and Just. C. 4, 18, 3; Karl-Heinz Schindler,

"Zum Problem byzantinischer Bearbeitungen des ersten Codex", in: Studi in onore di Edoardo Volterra, vol. II (1971), pp. 371 sqq., but Liebs, Klagenkonkurrenz, pp. 187 sq.

163 Ulp. D. 46, 1, 32; Diocl. C. 4, 30, 12. Both texts have often been regarded as spurious; but see Kaser, RPr II, pp. 460 sq. (n. 28).

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