This, too, is indifputably clear; that the fen, tence in his QUIDEM et diligentiam, is ungrammatical, and cannot be conftrued according to the interpretation, which fome contend for. What

may

verb is understood? Recipiunt. What noun? Contractus. What then becomes of the words in bis, namely contractibus, unless in fignify among? And, in that cafe, the difference between QUIDEM and QUIDAM vanifhes; for the claufe ftill import, that " AMONG the preceding con"tracts (that is, in SOME of them), more than "ufual diligence is exacted:" in this fenfe the Greek prepofition feems to have been taken by the scholiaft on HARMENOPULUS; and it may here be mentioned, that diligentia, in the nominative, appears in fome old copies, as the Greeks have rendered it; but AccURSIUS, DEL RIO, and a few others, confider 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 jurifconfulti et diligentiam requirunt," but this interpretation, if it could be admitted, would entirely destroy the authority of the claufe, and imply, that Ulpian was of a dif ferent opinion. As to the last conjecture, that only certain cafes and circumftances are meaned by the word QUIDAM, it scarce de

ferves to be repeated. On the whole, I ftrongly incline to prefer the vulgate reading, especially as it is not conjectural, but has the authority of manuscripts to fupport it; and the mistake of a letter might eafily have been made by a tranfcriber, whom the prefaces, the epigram prefixed, and other circumftances, prove to have been, as Taurelli himself admits, a Greek.Whatever, in short, be the genuine words of this much-controverted claufe, I am perfuaded, that it ought by no means to be ftrained into an inconfiftency with the fecond law; and this has been the opinion of moft foreign jurists from Azo and ALCIAT down to HEINECCIUS and HUBER; who, let their diffenfion be, on other points, ever fo great, think alike in diftinguishing three degrees of neglect, which we may term gross, ordinary, and flight, 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.

Grofs neglect, lata culpa, or, as the Roman lawyers most accurately call it, dolo proxima, is in practice confidered as equivalent to DOLUS, or FRAUD, itself; and confifts, according to the beft interpreters, in the omiffion 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 ufe in their own concerns; that is, of ordinary

care.

Slight neglect, leviffima culpa, is the omiffion of that care, which very attentive and vigilant perfons take of their own goods, or, in other words, of very exact diligence.

Now, in order to afcertain the degree of neglect, for which a man, who has in his poffeffion the goods of another, is made responsible by his contract, either express or implied, civilians eftablish three principles, which they deduce from the law of Ulpian on the Edict; 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.

First: In contracts, which are beneficial folely to the owner of the property holden by another,

Or 1. 5. § 2. ff. Commod. and 1. 23. ff. de reg. jur. Inftead of ff, which is a barbarous corruption of the initial letter of mavdéulai, many write D, for Digest, with more clearness and propriety.

no more is demanded of the holder than good faith, and he is confequently 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 geftorum, a certain care is requifite from the nature of the thing; and, as good faith itself demands, that fuch care be proportioned to the exigence of each particular cafe, the law prefumes, that the mandatary or commiffioner, and, by parity of reason, the negotiorum geftor, engaged at the time of contracting to use a degree of diligence adequate to the performance of the work undertaken*.

Secondly: In contracts reciprocally beneficial to both parties, as in thofe of SALE, HIRING, PLEDGING, PARTNERSHIP, and the contract implied in JOINT-PROPERTY, fuch care is exacted, as every prudent man commonly takes of his own goods; and, by confequence, 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 negotio parem.

cuftody, as in that of LENDING FOR USE, an extraordinary degree of care is demanded; and the borrower is, therefore, refponfible for flight negligence.

This had been the learning generally, and almost unanimously, received and taught by the doctors of Roman law; and it is very remarkable, that even ANTOINE FAVRE, or Faber, who was famed for innovation and paradox, who published two ample volumes De Erroribus Interpretum, and whom GRAVINA justly calls the boldeft of expofitors and the keenest adversary of the practifers*, discovered no error in the common interpretation of two celebrated laws, which have fo direct and fo powerful an influence over focial life, and which he must repeatedly have "confidered: but the younger GODEFROI of Geneva, a lawyer confeffedly of eminent learning, who died about the middle of the last century, left behind him a regular commentary on the law Contractus, in which he boldly combats the fentiments of all his predeceffors, and even of the ancient Romans, and endeavours to fupport a new system of his

own.

He adopts, in the first place, the Florentine reading, of which the ftudent, I hope, has

Orig, Jur. Civ. lib. i. § 183.