"make the party responsible for DECEIT ONLY; "fome, for both DECEIT AND NEGLECT. No"thing more than refponfibility for DECEIT is "demanded in DEPOSITS and POSSESSION AT WILL; both DECEIT AND NEGLECT are in"bibited in COMMISSIONS, LENDING FOR 66 USE, CUSTODY AFTER SALE, TAKING IN "PLEDGE, HIRING; alfo in PORTIONS, GUAR, 66 . DIANSHIPS, VOLUNTARY WORK: (among "these SOME require even more than ordinary DILIGENCE). PARTNERSHIP and UNDI"VIDED PROPERTY make the partner and jointproprietor answerable for both DECEIT AND "NEGLIGENCE*." 46 66 "In contracts, fays the fame author in his "other work, we are fometimes responsible for DECEIT ALONE; fometimes, for NEGLECT ALSO; for DECEIT ONLY in DEPOSITS; because, fince NO BENEFIT accrues to the depofitary, he can juftly be anfwerable for no more than DECEIT; but, if a REWARD happen to be given, then a refponfibility for NEGLECT ALSO is required; or, if it be agreed 66 68 *Contractûs quidam DOLUM malum DUNTAXAT recipiunt; quidam, et DOLUM ET CULPAM. DOLUM tantùm DEPOSITUM et PRECARIUM; DOLUM ET CULPAM, MANDATUM, COMMODATUM, VENDITUM, PIGNORI ACCEPTUM, LOCATUM; item DOTISDATIO, TUTELA, NEGOTIA GESTA: (in his QUIDAM et DILIGENTIAM). SOCIETAS et RERUM COMMUNIO et DOLUM ET CULPAM recipit. D. 50. 17. 23. "at the time of the contract, that the depofitary "fhall anfwer both for NEGLECT and for ACCI " DENT: but, where A BENEFIT accrues to A THING BOTH parties, as in KEEPING "SOLD, as in HIRING, as in PORTIONS, as in 66 PLEDGES, as in PARTNERSHIP, both DE CEIT AND NEGLECT make the party liable. "LENDING FOR USE, indeed, is for the most 66 part BENEFICIAL to the BORROWER ONLY; "and, for this reason, the better opinion is that "of Q. MUCIUS, who thought, that HE should "be refponfible not only for NEGLECT, but " even for the omiffion of more than ordinary "DILIGENCE*." 66 One would scarce have believed it poffible, that there could have been two opinions on laws fo perfpicuous and precife, compofed by the same writer, who was indubitably the best expositor * In contractibus interdum DOLUM SOLUM, interdum ET CULPAM, præftamus; DOLUM in DEPOSITO; nam, quia NULLA UTILITAS ejus verfatur, apud quem deponitur, merito DOLUS præftatur soLus; nifi fortè et MERCES acceffit, tunc enim, ut eft et conftitutum, ETIAM CULPA exhibetur; aut, fi hoc ab initio convenit, ut et CULPAM et PERICULUM præftet is, penes quem deponitur: fed, ubi UTRIUSQUE UTILITAS vertitur, ut in EMPTO, ut in LOCATO, ut in DOTE, ut in PIGNORE, ut in SOCIETATE, et DOLUS ET CULPA præftatur. COMMODATUM autem plerumque SOLAM UTILITATEM CONtinet ejus, cui COMMODATUR; et ideò verior eft Q. Muci fententia existimantis et CULPAM præftandam et DILIGENTIAM. D. 13. 6. 5. 2. of his own doctrine, and apparently written in illuftration of each other; the firft comprising the rule, and the second containing the reason of it yet the single paffage extracted from the book on SABINUS has had no fewer than twelve particular commentaries in Latin*, one or two in Greekt, and fome in the modern languages of EUROPE, besides the general expofitions of that important part of the digeft, in which it is preferved. Most of these I have perused with more admiration of human fagacity and industry than either folid instruction or rational entertainment; for these authors, like the generality of commentators, treat one another very roughly on very little provocation, and have the art rather of clouding texts in themselves clear, than of elucidating passages, which have any obscurity in the words or the sense of them. CAMPANAS, indeed, who was both a lawyer and a poet, has turned the first law of Ulpian into Latin hexameters; and his authority, both in profe and verfe, confirms the interpretation, which I have just given. The chief causes of all this perplexity have been, first, the vague and indiftinct manner in which the old Roman lawyers, even the most *BOCERUS, CAMPANUS, D'AVEZAN, DEL RIO, Le Conte, RITTERSHUSIUS, GIPHANIUS, J. GODEFROI, and others. The fcholium on Harmenopulus, 1. 6. tit. de Reg. Jur. n. 15. may be confidered as a commentary on this law. eminent, have written on the fubject; fecondly, the loose and equivocal sense of the words DILIGENTIA and CULPA; laftly and principally, the darkness of the parenthetical claufe IN HIS QUIDAM ET DILIGENTIAM, which has produced more doubt, as to its true reading and fignification, than any sentence of equal length in any author Greek or Latin. Minute as the queftion concerning this claufe may feem, and dry as it certainly is, a fhort examination of it appears abfolutely neceffary. The vulgate editions of the pandects, and the manuscripts, from which they were printed, exhibit the reading above fet forth; and it has accordingly been adopted by CUJAS, P. FABER, LE CONTE, DONELLUS, and most others, as giving a fense both perfpicuous in itself and confiftent with the fecond law; but the FLORENTINE copy has quidem, and the copies, from which the Bafilica were tranflated three centuries after JUSTINIAN, appear to have contained the fame word, fince the Greeks have rendered it by a particle of fimilar import. This variation in a fingle letter makes a total alteration in the whole doctrine of ULPIAN; for, if it be agreed, that diligentia means, by a figure of speech, a more than ordinary degree of diligence, the common reading will imply, conformably with the fecond law before cited, that "SOME of the pre ceding contracts demand that higher degree;" but the Florentine reading will denote, in contradiction to it, that "ALL of them require more "than ordinary exertions." It is by no means my design to depreciate the authority of the venerable manuscript preserved at Florence; for, although few civilians, I believe, agree with POLITIAN, in fuppofing it to be one of the originals, which were fent by Juftinian himself to the principal towns of Italy*, yet it may possibly be the very book, which the Emperor LOTHARIUS II. is faid to have found at Amalfi about the year 1130, and gave to the citizens of PISA, from whom it was taken, near three hundred years after, by the Florentines, and has been kept by them with fuperftitious reverencet: be that as it may, the copy deferves the higheft refpect; but, if any proof be requifite, that it is no faultless transcript, we may observe, that, in the very law before us, accedunt is erroneously written for accidunt; and the whole phrafe, indeed, in which that word occurs, is different from the copy used by the Greek interpreters, and conveys a meaning, as BOCERUS and others have remarked, not fupportable by any principle or analogy, Epift. x. 4. Mifcell. cap. 41. See Gravina, lib. i. § 141. |