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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 supposing it to be one of the originals, which were sent by Fustinian himself to the principal towns of Italy*, yet it may possibly be the very book, which the Emperor LOTHARIUS II. is said 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 fuperstitious reverencet: be that as it
the copy deserves the highest respect; but, if any proof be requisite, 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 phrase, 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: # Taurelli, Præf, ad Pand. Florent.
This, too, is indisputably clear; that the fen, tence in bis QUIDEM et diligentiam, is ungrammatical, and cannot be construed according to the interpretation, which fome contend for. What verb is understood? Recipiunt. What noun? Contractús. What then becomes of the words in bis, namely contractibus, unless in fignify among? And, in that case, the difference between QUIdem and QUIDAM vanishes; for the clause may still import, that “ AMONG the preceding con" tracts (that is, in some of them), more than “ usual diligence is exacted :" in this sense the Greek preposition seems to have been taken by the scholiast on HARMENOPULUS; and it may here be mentioned, that diligentia, in the nominative, appears in some old copies, as the Greeks have rendered it; but ACCURSIUS, Del Rio, and a few others, consider the word as implying no more than diligence in general, and distinguish it into various degrees applicable to the several contracts, which ULPIAN enumerates. We may add, that one or two interpreters thus explain the whole fentence,“ in his contractibus qui“ dam jurisconsulti et diligentiam requirunt," but this interpretation, if it could be admitted, would entirely destroy the authority of the clause, and imply, that Ulpian was of a different opinion. As to the last conjecture, that only certain cases and circumstances are meaned by the word QUIDAM, it scarce de
ferves to be repeated. On the whole, I strongly incline to prefer the vulgate reading, especially as it is not conjectural, but has the authority of manuscripts to support it; and the mistake of a letter might easily have been made by a tranfcriber, whom the prefaces, the epigram prefixed, and other circumstances, prove to have been, as Taurelli himself admits, a Greek.Whatever, in short, be the genuine words of this much-controverted clause, I am persuaded, that it ought by no means to be strained into an inconsistency with the second law; and this has been the opinion of most foreign jurists from Azo and ALCIĄT down to HEINECCIUS and HUBER; who, let their dissension be, on other points, ever so great, think alike in distinguishing three degrees of neglect, which we may term grofs, ordinary, and Night, and in demanding responfibility for those degrees according to the rule before expounded.
The law then on this head, which prevailed in the ancient Roman empire, and still prevails in Germany, Spain, France, Italy, Holland, conftituting, as it were, a part of the law of nations, is in fubftance what follows.
Gross neglect, lata culpa, or, as the Roman lawyers most accurately call it, dolo proxima, is in practice considered as equivalent to DOLUS, or FRAUD, itself; and consists, according to the best interpreters, in the omision of that care,
which even inattentive and thoughtless men never fail to take of their own property: this fault they justly hold a violation of good faith.
Ordinary neglect, levis culpa, is the want of that diligence, which the generality of mankind use in their own concerns ; that is, of ordinary
Slight neglect, levisima culpa, is the omission of that care, whićh very attentive and vigilant persons take of their own goods, or, in other words, of very exact diligence.
Now, in order to ascertain the degree of neg. lect, for which a man, who has in his possession the goods of another, is made responsible by his contract, either express or implied, civilians establith three principles, which they deduce from the law of Ulpian on the Ediet ; and here it may be observed, that they frequently distinguish this law by the name of Si ut certo, and the other by that of Contractus*; as many poems and histories in ancient languages are denominated from their initial words.
Firít: In contracts, which are beneficial solely to the owner of the property holden by another,
* Or 1. 5.9 2. ff. Commod. and l. 23. ff. de reg. jur. Instead of ff, which is a barbarous corruption of the initial letter of Trav Jéxlol, many write D, for Digeft, with more clearness and propriety,
no more is demanded of the holder than good faith, and he is cousequently responsible for nothing less than gross neglect : this, therefore, is the general rule in DEPOSITS; but, in regard to COMMISSIONS, or, as foreigners call them, MANDATES, and the implied contract negotiorum gestorum, a certain care is requisite from the nature of the thing; and, as good faith itself demands, that such care be proportioned to the exigence of each particular case, the law prefumes, that the mandatary or commissioner, and, by parity of reason, the negotiorum gestor, engaged at the time of contracting to use a degree of diligence adequate to the performance of the work undertaken *.
Şecondly: In contracts reciprocally beneficial to both parties, as in those of SALE, HIRING, PLEDGING, PARTNERSHIP, and the contract implied in JOINT-PROPERTY, such care is exacted, as every prudent man commonly takes of his own goods; and, by consequence, the vendor, the hirer, the taker in pledge, the partner, and the co-proprietor, are answerable for ordinary neglect.
Thirdly: In contracts, from which a benefit accrues only to him, who has the goods in his
* Spondet diligentiam, fay the Roman lawyers, gerendo nego