!!Экзамен зачет 2023 год / The Law of Obligations

development of the more inflexible fideiussio. Thus it was already recognized in classical law that the creditor could demand payment from the mandator/surety only if he was willing to cede to him his repayment claim against the debtor.164 This idea, in the course of time, came to be applied to fideiussio as beneficium cedendarum actionum. Justinian rounded these developments off by equating mandatores and fideiussiores for all practical purposes.165 It was not difficult, therefore, for later writers such as the Roman-Dutch jurists to weave these two strands into one and to fuse the equitable approach underlying mandatum with the fideiussio.166 Even in countries such as Germany, where mandatum qualificatum did not entirely disappear but continues to occupy a little niche of its own,167 it has come to be generally recognized that the obligations arising from fideiussio/suretyship are to be judged "ex bona fide" too.168

164lui. D. 46, 1, 13; Gai. D. 17, 1, 27, 5; Mod. D. 46, 1, 41, 1; Wesener, (1965) 11 Labeo 347. Of course, the difficulties encountered with regard to fideiussio (that solutio or litis contestatio consumed both actions) did not arise in this case.

165Bortolucci, (1915) 28 BIDR 239 sqq.; cf. also Liebs, Klagenkonkurrenz, pp. 41 sq.; Guarino, op. cit., note 155, pp. 21 sqq.

166There was a third strand in the form of constitutum debiti alieni, a praetorian pact which served the function of suretyship; Justinian was the first to subject it to the rules pertaining to suretyship (by extending the beneficia divisionis, excussionis and cedendarum

actionum). In contrast to fideiussio, constitutum could be made "in durior causa". Cf. Caney/Forsyth, op. cit., note 49, pp. 18 sqq.; Frezza, Garanzie, vol. 1, pp. 229 sqq., 282 sqq.; Girtanner, op. c it ., note 48, pp. 47 sqq.; Jolowicz/Nicholas, p. 301; Kaser, RPr II,

p.461.

167 Cf. Windschcid/Kipp, §§ 412, 2; 476, n. 3; Franz Philipp von Kubel, "Recht der

Schuldverhaltnisse, Teil 3", in: Werner Schubert (ed.), Vorentwurfe, pp. 89 sqq. § 778 BGB reads: "A person who gives a mandate to another to give credit to a third party in the person's own name and for his own account is liable to the mandatary us a surety for the obligation of the third party arising from the giving of credit." Constitutum debiti alieni, on the other hand, has disappeared as a separate institution on its own; cf. e.g. Girtanner, op. cit., note 48, pp. 373 sqq. On constitutum debiti in general, cf. also infra, pp. 511 sqq.

168 This has practical consequences, for instance, regarding the question whether the creditor owes a duty of care towards the surety (cf. supra, p. 140). Such a duty was widely recognized in 19th-century legislation and literature. In the BGB, however, we find a strange relapse into the old Roman law of fideiussio; its §§ 765 sqq. are based on the assumption that, in accordance with its nature as a unilaterally binding contract, suretyship can give rise only to rights and not to duties in the person of the creditor. Thus the creditor is perfectly free to watch his debtor become insolvent without being barred, later on, from claiming from the surety that which can then no longer be claimed from the debtor. The courts have tried to remedy this situation to the best of their ability and have reintroduced, through the back door, and in a very limited way, the more equitable principle of the ius commune. Cf. the analysis by Knutel, Festschrift Flume, pp. 559 sqq. This, incidentally, is a development that can be observed in many cases where a legislator has rather tried to break with tradition. The approach of the BGB, in this particular instance, may have to be seen in the context of the economic crisis of the 1870s and the increasing importance, for the banks, of transactions on credit; hence the desire to make suretyship more attractive/viable from the point of view of the creditor: cf. Knutel, pp. 564 sq.

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VII. THE IMPACT OF FIDEIUSSIO ON MODERN LEGAL SYSTEMS

1. Roman-Dutch law

The Roman law of suretyship has had a profound influence on modern legal systems. The suretyship contract in all countries that have received Roman law derives directly from Justinian's fideiussio. lf>9< 17° This is most obvious in the usus hodiernus of Roman-Dutch law.171 Suretyship is an accessory contract and the position of the surety is still governed by the venerable triplet of privileges: he can avail himself of the beneficium excussionis, the beneficium divisionis (where there is a plurality of sureties) and the beneficium cedendarum actionum. With regard to the latter, an interesting development has taken place. Some of the classical Roman-Dutch writers found it repugnant that the surety who paid should remain burdened with the whole debt if he forgot to ask for cession in good time. Thus, in order not to let the co-sureties benefit from his carelessness, they allowed cession to take place at any time, even long after payment had been rendered.172 But once that was accepted, the question was bound to arise sooner or later whether the whole act of cession had not under those circumstances become a meaningless formality which the law could just as well dispense with. This, indeed, was the view taken by WesselsJ, in Kroon v. Enschede,173 who thereby brought South African law in line with the English

164 Cf. the contributions in Les suretes personnelles, op. cit.. note 2, for example, Jean Gilissen. vol. 28, pp. 94 sqq.; Burge, Suretyship, passim; Jones, (1977-78) 52 Tulane LR 136 sqq. (describing, tor instance, ehe French Code Civil as "almost a restatement of the Roman law as ciarified and modified by such jurists as Pothier and Domat"). In many modern systems, writing is prescribed for suretyship contracts (cf. e.g. § 766 BGB (but see § 350 HGB, if the surety is a merchant), s. 6 Act 50/1956 (South Africa), and, generally. Ernst J. Colin, "The Form of Contracts of Guarantee in Comparative Law", (1938) 54 LQR 220 sqq.). In the European usus modernus of Roman law. fideiussio was an informal contract: the oral formality of the Roman stipulatio had become obsolete, and the symbolic forms of Germanic law which existed for the contract of suretyship had been suppressed by the reception of Roman law. Thus, the (re-)introduction of the formal requirements had to take place by deliberate acts ot legislation.

1/0 The promissio (or fideiussio) indemnitans (cf. supra, note 86), incidentally, lives on in the modern contract of indemnity ("a promise to save another harmless from the result of a transaction into which he enters at the instance of the promisor": Anson/Guest, Law of Contract (24th ed., 1975), p. 76; in German: "Garantievertrag"); cf. esp. Rudolf Stammler, "Der Garantievertrag", (1886) 69 Archiv fur die civilistische Praxis 1 sqq. and, more recently, Jorg Kaser, "Garantieversprechen als Sicherheit im Handelsverkehr", (1971) 35 KabelsZ 593 sqq.; Hadding/Hauser/Welter. op. cit., note 17, pp. 682 sqq.

Cf. De Wer en Yeats, pp. 344 sqq.; Wessels, Contract, §§3771 sqq. and Caney/Forsyth, loc. cit.

Groenewegen, De legibus abrogatis. Cod. Lib. VIII, Tit. XLI, 1. 11 cum alter; Voet, Commentarius ad Pandectas, Lib. XLVI, Tit. I, XXX; cf. later on, also Girtanner, op. cit., note 48, pp. 533 sqq.; contra, e.g., Grotius, Inleiding, III, III, XXXI.

m 1909 TS 374; but cf also Voet( Commentarius ad Pandectas, Lib. XLVI, Tit. I, XXX; Pothier,

Traite des obligations, n. 445; Burge, Suretyship, pp. 381 sqq.

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doctrine of contribution:174 without any assignment, the surety who has paid the debt, is entitled to recover from his co-sureties. Thus, he does not pursue the creditor's right, but his own right based not on contract but on general equity. Besides this "automatic" right to contribution against his co-sureties and his right of recourse against the principal debtor arising from their internal relationship (mandate or negotiorum gestio),175 the beneficium cedendarum actionum has not sunk into oblivion; it is still vitally important where the creditor's claim enjoyed a privileged position or where it was secured by accessory real rights.

Kroon v. Enschede, by the way, is but one example of quite a number of decisions of South African courts in this field which fascinate the reader on account of their extensive investigation into the sources of Roman-Dutch law. Sometimes the very question of what these sources are has been the bone of contention. The cause celebre is Wolson v. Gerber.176 Seven persons had stood surety for repayment of a loan "jointly and severally and as sureties and co-principal debtors . . .

renouncing the legal exceptions . . . ordinis seu excussionis et divisionis", as the parties had specified. After one of them, a certain Wolson, had paid the creditor the whole amount, the question arose as to how much he would be able to claim, by way of recourse, from

Gerber, another of the co-sureties. According to Voet,177 Sande178 and Perezius,179 he could sue any of the remaining co-debtors for the whole

of the original debt minus only his own pro rata share (that is, in this instance, for six-sevenths). Pothier,180 on the other hand, had advocated a restriction of his right of recourse against each of the codebtors; as a result, he would have been able to recover only oneseventh of what he had paid to the creditor from the defendant.181 Faced with this conflict of opinion, the court came to the conclusion that the more modern opinion of Pothier could not be followed:

"Pothier is of course a great authority on the Civil law . . . [and] as an interpreter of the Roman law, our law in subsidio, on questions on which the Dutch jurists are

174 Cf. e.g. Fleetwood v. Charnock (1629) Nelson 10; Derm? v. Ear! of Winchehea (1787) 1

Cox_318 at 320.

17r> As far as the right of recourse against the principal debtor is concerned, an (automatic) "subrogation" is unknown in South African law; cf. e.g. J.E. Scholtcns. (1959) 76 SAL]266 sqq-

176 1954 (3) SA 94 (T); the decision of the Appellate Division of the South African Supreme Court is to be found sub nom. Gerber v. Wolson in 1955 (1) SA 158 (A).

hl Commentarius ad Pandectas, Lib. XLVI, Tit. I, XXIX.

178De Actionum Cessione, Cap. VI, 33.

179Perezius, Praelectiones, Lib. VIII, Tit. LIX, 41 (p. 498).

Traite des obligations, n. 281 ; cf. also the references in Berlichius, Conclusiones practicales

secundum ordinem Constitutionum Dit'i Augusti, Hlecloris Saxoniae (4 ed., Leipzig, 1670), Pars II,

Cond. XXII, nn. 88 f.

1H1 This solution was adopted by Burge, Suretyship, p. 417 and in the code civil (artt. 1214, 2033).

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silent, his opinions naturally carry much weight . . . But [his authority] cannot prevail against the opinions of the accepted Dutch authorities."182

It is not without irony, however, to see that, notwithstanding these general pronouncements about his relevance for South African courts, Pothier at least scored an indirect victory; the majority of the court did, in the end, limit the right of recourse to one-seventh but based their decision on a somewhat unsatisfactory fiction, namely on an implied agreement between the seven co-sureties limiting their reciprocal rights of recourse to the pro rata share.183

2. German law and the English common law

In modern German law, too, suretyship is characterized by its accessoriness.184 According to § 771 BGB, the surety may refuse to satisfy the creditor as long as the latter has not attempted compulsory execution against the principal debtor without success: a statutory version of the beneficium excussionis. Hadrian's beneficium divisionis, however,'has not been adopted: co-sureties are liable as joint debtors for the whole debt {unless, of course, something else was agreed upon by the parties). The beneficium cedendarum actionum has been developed into a cessio legis: where the surety satisfies the creditor, the latter's claim against the principal debtor is (automatically) transferred to him.185 As a consequence of this, all ancillary rights pass to the assignee, too.186 Hence, the surety who has paid also acquires the claims of the creditor against the other (co-)sureties, but only to the extent of their pro rata share.187 Even the English law of suretyship "has been much influenced by Roman law, partly directly, partly through medieval mercantile law which had been in contact with Roman law, partly through the system of 'Equity' administered by the English chancellors, which was itself influenced by canon law and late Roman law".188 The rules relating to fideiussio have shaped the accessory nature of the surety's liability.189 The beneficium cedendarum actionum lives on in the form of a duty of contribution between co-sureties and of the doctrine of subrogation.190 Sureties do not, however, have the

182Van den HeeverJA, in Gerber v. Woison 1955 (1) SA 158 (A) at 170H-171 A. Similarly, Steyn J in Woison v. Gerber 1954 (3) SA 94 (T) at 99 sq. Differently Fagan JA, in Gerber v. Woison 1955 (1) SA 158 (A) at 183. On the influence of Pothier on South African law, in theory and in actual practice, see generally Reinhard Zimmermann, "Der Einnuss Pothicrs auf das romisch-hollandische Recht in Sudafrika", (1985) 102 ZSS (GA) 176 sqq.

183Cf. Zimmermann, (1985) 102 ZSS (GA) 200 sqq.

1H4 Cf. §§ 767, 768, 770 BGB and "Motive", in: Mugdan, vol. II, pp. 369 sqq.

185§ 774 I BGB.

186§§ 412, 401 BGB.

187§§ 774 II, 426 I BGB.

1HM Albert Kiralfy, "History of the Law of Personal Guarantee (Suretyship) in England

since 1500", in: (1971) 29 Recueils (op. cit., note 2) 400.

1H9 Cf. Kiralfy, op. cit., pp. 410 sqq.; for details of the English law in this regard, see Johan Steyn, "Guarantees: The Co-extensiveness Principle", (1974) 90 LQR 246 sqq.

'*■' Burge, Suretyship, pp. 352 sqq., 384 sqq.

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right to compel the creditor to proceed against their co-sureties (beneficium divisionis). Nor, in fact, is the creditor required to sue the principal debtor first; the beneficium excussionis, recognized in medieval English law,191 has not managed to establish itself in the modern common law.192

It is not accidental that neither the beneficium divisionis nor the beneficium excussionis became part of the English law. Even in those

legal systems where they have been received, their operation is usually excluded by the parties.193 Thus, if one looks, not at the common law or

statute book, but into how suretyship is actually practised today, one will generally find the sureties to be in the position of joint and several debtors: liable for the whole debt and as a principal debtor. In so far as certain Germanic forms of suretyship still live on in this practice, the history of suretyship could indeed be written as a struggle of indigenous custom against the received rules of Roman law.194

VIII. WOMEN AS SURETIES

1. The senatus consultum Vellaeanum

Before concluding this chapter, a small arabesque should be added. At some time between A.D. 41 and 65195 the Roman Senate enacted the following law:

"Quod Marcus Silanus et Velleus Tutor consules verba fecerunt de obligationibus feminarum, quae pro aliis reae fierent, quid de ea re fieri oportet, de ea re ita censuere: quod ad fideiussiones et mutui dationcs pro aliis, quibus intercesserint feminae, pertinet, tametsi ante videtur ita ius dictum esse, ne eo nomine ab his petitio neve in eas actio detur, cum eas virilibus officiis fungi et eius generis obligationibus obstringi non sic aequum, arbitrari senatum recte atque ordine facturos ad quos de ea re in iure aditum erit, si dederint operam, ut in ea re senatus voluntas servetur."l9fi

These are the words of the famous (or notorious) senatus consultum Vellaeanum by which women were prohibited from "interceding", that is, from incurring liability for the benefit of others (pro aliis reas fieri), as, for instance, in the case of suretyship contracts.

1 l Cf. already Glanvill, X, 3, in fine: ". . . si principals debitor ita inde defecerit quod non habeat unde solvere possit, tunc demum recuperandum erit ad plegios" and then the Statute of Merchants 1285 (13 Edward I) (on which, see Theodore Plucknett, Legislation of Edward I (1962), pp. 138 sqq.).

192Burge , Su retysh ip, pp. 341 sq.

193As has been the case, for instance, in Wolson v. Gerber, supra, note 176.

194Cf. Fecnstra, op. cit., note 21, pp. 296 sqq., 322 sqq. ; Werner Ogns, "Die personlichen Sicherheiten in den westeuropaischen Rechten des Mittelalters", (1971) 29 Recueils (op. cit., note 2) 21 sqq. For the "Dogmengeschichte" of the suretyship contract generally, see Girtarmer, op. cit., note 48, pp. 151 sqq.; for its Germanic roots, see Franz

Beycrle, "Die Ursprung der Burgschaft", (1927) 47 ZSS (GA) 567 sqq.

ІУэ Cf. the arguments advanced by Hans Kreller, Das Verbot der Fraucninterzession von

Augustus bis Justinian, Anzeiger der phil.-hist. Klasse der Osterreichischen Akademie der

Wissenschaften (Wien), pp. 6 sq.

106 Ulp. D. 16, 1, 2, 1.

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Reading this enactment, one is not struck by its precision and lucidity. But that in itself is no reason to regard the text, as it has been handed down to us, as largely interpolated.197 Modern legislators have not always done much better as far as the clarity of expression and stylistic elegance of their enactments are concerned; the science (or art) of how to legislate has, until very recently, received hardly any attention in academic legal circles.198 Besides, the Roman Senate was not composed of private lawyers; the wording of its consulta was often based, quite probably, on the motions brought before it, and these motions, frequently containing not only a specific rule but also the motivation for it, were not necessarily skilfully drafted.199 It is, however, precisely its somewhat clumsy wording that makes this senatus consultum such an instructive example of how classical lawyers interpreted statutory provisions in order to make them workable tools for the implementation of the legislative policy.

2. The policy of the senatus consultum

But what was this policy underlying the senatus consultum Vellaeanum? According to Fritz Schulz, it was "an outspokenly reactionary enactment in conformity with the general attitude of the Senate which at that period was the centre of reaction".200 Since the time of the Punic wars the increasing emancipation of women201 had led to a deplorable decay of the good old mores maiorum, and the Senate now tried to reverse this development by preventing women from indulging in business transactions and by bringing them back to their proper place, which, according to traditional opinion, is, of course, at home.202 But

147 Heinrich Vogt, Studien zum Senatus Consultum Velleianum (1952), pp. 2 sqq. 19M Cf., however, Peter Noll, Gesetzgebungslehre (1973) (by now a classic); now also Jurgen Rodig,

Studien zu einer Theorie der Gesetzgebung (1976); Hans Schneider, Gesetzgebung (1982).

199 ?-? ?)ieter Medicus, Zur Geschichte des Senatus Consultum Velleianum (1957), p. 19. As to the style and structure of senarus consulta in general, cf. David Daube, Forms of Roman Legislation (1956). pp. 78 sqq. (". . . as a senatusconsult is addressed not to the people at large but to a magistrate . . ., its language is much freer and more general than that of statutes or edicts. It is not intended as a precise guide for the ordinary man, but as advice for an official, who will be quite capable of judging exactly how far and in what way to follow it out. A great deal, that is, must be left to the discretion of the recipient").

200CRL, p. 569.

201Cf. e.g. Schulz, CRL, pp. 180 sqq.; Johannes Georg Fuchs, Die rechtliche Stellung der Frau im alten Rom (1960), pp. 9 sqq.; cf. also, more recently, the studies by Suzanne Dixon, "Infirmitas scxtus: Womanly Weakness in Roman Law", (1984) 52 TR 343 sqq; Leo Peppe,

Posizione giuridica e ruolo sociale delia donna romana in eta repubblicana (1984); Jane F. Gardner,

Women in Roman Law and Society (1986), and O.F. Robinson, "The Status of Women in Roman Private Law", \9S7 Juridical Review 143 sqq.

202That the senatus consultum was a measure directed against the women has been asserted, especially, by Vogt, op. cit., note 197, pp. 6 sqq.; cf. also J.E. Spruit. "Het Raets-besluit van Burgemeester Velleius", in: Huldigingsbundel Paul van Warmelo (1984), pp. 197 sq. and 194 sq. with quotations from Philips van Leyden (14th century): "muliercs vagari non convenu nee se virorum coetibus immiscere", "mulieres commodius domesticorum curam gerunt." During the Middle Ages, women were denounced not only for being too earthbound to give due thought to matters of business but also for being unable

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even though some of the senators may indeed have thought so, the predominant intention of the enactment was a less sinister one: if the senate took "intercedere" to be a matter for men only ("virile officium"), this seems to have been primarily an assessment (possibly a paternalistic one) of what was in the women's best interest. In other words, the senatus consultum was designed to be an instrument of protection, and in that sense a privilege—or, in the words of Hugo

Grotius: a "voordeel" for "vrou-menschen".203 This appears from the enactment itself204 and is also, for instance, borne out by the way in

which the condictio was handled: where a woman had actually performed what she had promised in violation of the senatus consultum, and had done so in full knowledge of the legal position, she was not able to claim her performance back.205 Obviously, under these circumstances, she did not need to be protected by the law. Thus, there was no necessity for the lawyers to deviate from the normal rule that no enrichment claim can be brought where the person performing knew that he or she was not bound to effect the performance.206

However, this way of looking at the enactment raises two questions: why did the enactment relate to women only, and why did it prevent women from "intercedere" rather than, for instance, from incurring obligations in their own interest too? The answer is to be found in what the Roman lawyers described as sexus imbecilhtas,2"7 inflrmitas208 or fragilitas feminarum.209 Even though the realities of Roman life had, to a certain extent, left behind the stage at which women were "content to sit at the distaff or the weaving loom",210 and even though a lawyer such as Gaius — albeit a good hundred years later!—regarded the common idea of levitas animi feminarum as more specious than true,211 these arguments should not simply be discounted as rhetorical phraseology or the professorial wisdom of reactionary philistines.212 As

to devote themselves to divine things. Woman was, in the words of Vincent de Beauvais, "the confusion of man, an insatiable beast, a continuous anxiety, an incessant warfare, a daily ruin, a house of tempest, a hinderance to devotion" (cf. Gerald R. Owst, Literature and Pulpit in Medieval England (2nd ed., 1961, p. 378)).

203 Itileiding, Ш, III, XV; cf. also Girtanner, op. cit.. note 48, pp. 135 sq., 335 sq.; Medicus, op. cit., note 199, pp. 18 sqq. and passim; Dixon, (1984) 52 I'R 356 sqq., 363 sqq.; as to the older literature, see Gluck, vol. 14, pp. 447 sqq.; Spruit. Huldigingsbunde! van Wannelo, pp. 200 sqq. By implication, then, the necessity of enacting the senatus consultum Vellaeanum shows the decay, at that time already, of the other protective devices, especially the tutela mulierum.

2(14 "Et ems generis obligationibus obstringi non sit aequum": it is not the activity of the woman but the fact that she is bound that is considered inequitable.

205C. 4, 29, 9 (Gord.); Medicus, op. cit., note 199, pp. 30 sqq.

206Cf. Schwarz, Condictio, pp. 65 sqq.

2117 Ulp. D. 16, 1. 2, 2.

208 Ulp. D. 16, 1, 2, 3.

2m C. 4, 29, 22 (Just.). On these topoi cf. Dixon, (1984) 52 TR 343 sqq. 21( 1 Schulz. CRL, p. 183.

211Gai. I, 190.

212Schulz, CRL, p. 184.

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a rule, it was the paterfamilias who administered the property of the family, and as a result of this and of tutela mulierum, the average Roman woman did in fact lack business experience. That made it particularly difficult for her coolly to assess the risks involved in those transactions which did not immediately affect her own affairs. The senatus consultum Vellaeanum dealt with situations where the woman acted in the interest of somebody else; this third party was the "true" debtor, who was to be ultimately responsible for the debt incurred. Thus, the woman could easily be tempted to think of her own obligation as a mere formality which she would never be required to fulfil. Emotionally inclined to rush to somebody else's help when required to do so, acting with undue confidence in this other person's ability and readiness to honour his promise, unable, especially, to withstand the importunacy of their husbands or friends, and generally prone to be influenced by unscrupulous or well-meant but unsound advice—so one probably thought—women tend to be somewhat frivolous, over-optimistic and reckless of their own interests. The danger therefore existed that they would all too readily bind themselves

for others (pro aliis reas fieri), and it was this specific danger that the Senate set out to combat.213

3. The interpretation of the senatus consultum by the Roman lawyers

(a) Protection of the woman

The senatus consultum Vellaeanum was interpreted and applied with this purpose in mind; in modern parlance, one might say that the Roman lawyers followed a purposive or teleological214 approach. Thus, they were ready to apply the enactment to all situations that were dangerous in the above-mentioned sense: where a woman stood surety,

213For a slightly different analysis, see Dixon, (1984) 52 TR 356 sqq., 363 sqq. She argues that the senatus consultum was in line with the Augustan legislation preventing the husband from selling dotal land in Italy without the permission of his wife (cf. Gai. Il, 63; Inst. II. 8 pr.) and that it was thus intended to protect her fortune from inroads by the husband. The wording of the enactment as it has come down to us "is concerned with the proper sphere of women rather than their intrinsic character" (p. 369). Dixon admits, however, that the notion of female weakness soon began to play its part in the application of the senatus consultum.

214"jTne European countries] adopt a method which they call m English by strange words—at any rate they were strange to me—the 'schematic and teleological' method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit — but not the letter—of the legislation, they solve the problem by looking at the design and purpose of the legislature—at the effect which it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation? They lay down the law accordingly": Lord Denning MR injames Buchanan

&Co. Ltd, v. Babco Forwarding & Shipping (UK) Ltd. [1977] QB 2U8 (CA) at 213F-H.

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incurred joint obligations,215 gave security for another by way of pledge,216 released the debtor by means of novatio,217 or took out a loan on somebody else's behalf and thus saved him from incurring any liability himself.218 Furthermore, even contracts of sale219 or hire220 could be hit by the senatus consultum and it was also taken to cover cases

where a woman had not interceded herself on behalf of the third party but had mandated a fourth party to do so for her.221

From another angle, however, we find the lawyers displaying a very restrictive tendency, willing to recognize exceptions where the requirements of the senatus consultum had, in a very literal sense, in actual fact been met.222 The common denominator of these situations appears to lie in the absence of a necessity to protect the interceding woman. Hence, for example, decisions such as Paul. D. 16, 1, 24 pr.; "Debitrix mulier a creditore delegata pro eo cui delegata est promisit: non utetur exceptione." Here the woman had incurred an obligation on behalf of, i.e. interceded for, a third party. However, she had been authorized to do so by her creditor by way of delegatio obligandi, which meant a change of creditor and involved a novation. Thus, by assuming the new obligation, the woman got rid of her old one, and this meant that her intercession did not entail a specific risk or danger. It was "neutral", in so far as in being released from the old obligation she received a compensation for facing the prospect of liability to the new creditor. Therefore, the transaction was not treated as invalid. The same could apply where the woman had interceded donandi animo, i.e. in order to donate the sum, for which she had made herself liable, to the debtor: "Item si [mulier] quid hberaliter fecent, veluti ne iudicatus pater eius propter solutionem vexetur, non erit tuta senatus consulto."223 There was no misconception, in a case such as this, about the financial risk involved. Nor was the senatus consultum Vellaeanum applied where the woman had pursued her own interest:

215Afr. D. 16, 1, 17, 2.

216Ulp. D. 16, 1, 8 pr.; Pomp. D. 16, 1, 32, 1.

217C. 4, 29, 1 (Ant.); 4, 29, 4 pr. (Alex.).

219Pomp. D. 16, 1, 32. 2.

220C. 4, 29, 1U (Phil.).

221Pomp. D. 16, 1, 32, 3. If the fourth party had incurred expenses as a result ot having

interceded (because he was called upon to pay), he could claim reimbursement from the woman by way of the actio mandati contraria. Thus, from the point of view of the rationale of the senatus consultum, the woman was in very much the same position as when she had interceded herself.

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"Aliquando, licet alicnam obligationem suscipiat пшіісг, non adiuvatur hoc senatus consulto: quod turn accidit, cum prima facie quidem alienam, re vera autem suam obligationcm suscipiat. ut ecce si . . . pro fidciussore suo intercedat."224

Here, the woman had interceded on behalf of a third party and therefore, prima facie, acted for the benefit of somebody else. But since this third party was her own surety, she had "re vera" incurred the obligation in her own interest. It was characteristic of their general approach to this enactment that the Roman lawyers looked at the real interest situation rather than contenting themselves with a formal classification of the transaction.225

(b) Protection of the creditor

The lawyers, however, had to be concerned with the protection of the creditor too. To strengthen his position was not problematic as long as that did not affect the woman. According to the senatus consultum, any action against a woman who had interceded was barred by an exceptio.226 That left the creditor in a very unsatisfactory position where this intercession had had the effect of releasing the debtor, or of saving the third party in whose interest the woman had incurred her obligation, from assuming any liability himself. Thus two new (praetorian) remedies had to be developed: an actio restitutona,227 for the first of these two situations, in order to reinstate the creditor into his former claim against the debtor, and an actio institutoria,228 which enabled the creditor to proceed against the third party, just as if the contract had been concluded with him instead of with the woman.

(c) Policy conflict

But the policies of protecting the woman and of avoiding unreasonable consequences for the creditor could clash. That was the case especially where a third party had interceded on behalf of the woman or where the woman had concluded a transaction that was not immediately recognizable as an intercession. This conflict of interests was resolved in favour of the creditor: the exceptio senatus consulti Vellaeani was to be employed only where the creditor had known of the intercessory nature of the woman's transaction (as, for instance, always in the case of

224 Gai. D. 16, 1, 13 pr,; cf. also Pomp. D. 16, !, 32 pr.. Mod. D. 16, 1, 25 pr.. Pap. D. 16 1. 27. 2. 22:1 Ct. also e.g. supra, pp. 148 sq.

226That exceptio was (probably) inserted by the praetor ex officio (i.e. even invita muliere): cf. Mcdicus, op. cit., note 199. pp. 30, 48.

227Ulp. D. 16, 1, 8. 7 sqq.; cf. further Arthur Hartkamp, "Die Drittwirkung der 'in integrum restitutio'", in: Daube Noster, Essays in Legal History for David Daube (1974), pp. 150 sqq.

22W Ulp. D. 16, 1, 8, 14; cf. further Giovanni Bortolucci, Actio quae instituit obligationem (1915), pp. 9 sqq.

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