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custody, as in that of LENDING FOR USE, an extraordinary degree of care is demanded; and the borrower is, therefore, responsible for Night 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 boldest of expositors and the keenest adversary of the practisers*, discovered no error in the common interpretation of two celebrated laws, which have so direct and so powerful an influence over social life, and which he must repeatedly have considered: but the younger Godefror of Geneva, a lawyer confessedly of eminent learning, wlio died about the middle of the last century, left behind him a regular commentary on the law Contractus, in which he boldly combats the sentiments of all his predeceffors, and even of the ancient Romans, and endeavours to support a new system of his
He adopts, in the first place, the Florentine reading, of which the ftudent, I hope, has
Osig, Jur. Civ. lib. i. $ 183.
formed by this time a decided opinion from a preceding page of this essay.
He censures the rule comprised in the law Si ut certo as weak and fallacious, yet admits, that the rule, which He condemns, had the approbation and support of MODESTINUS, of PAULUS, of AFRICANUS, of Galus, and of the great PAPINIAN himself; nor does he satisfactorily prove the fallaciousness, to which he objects, unless every rule be fallacious, to which there are some exceptions. He understands by DILIGENTIA that care, which a very attentive and vigilant man takes of his own property; and he demands this care in all the eight contracts, which immediately precede the disputed clause: in the two, which follow it, he requires no more than ordinary diligence. He admits, however, the three degrees of neglect above stated, and uses the common epithets levis and levisima; but, in order to reconcile his system with many laws, which evidently oppose it, he afcribes to the old lawyers the wildest mutability of opinion, and is even forced to contend, that ULPIAN himself must have changed his mind.
Since his work was not published, I believe, in his life-time, there may be reason to suspect, that he had not completely settled his own mind; and he concludes, indeed, with referring the decision of every case on this head to that most
dangerous and most tremendous power, the difcretion of the judge*.
The triple division of neglects had also been highly censured by some lawyers of reputation. Zasius had very justly remarked, that neglects differed in degree, but not in species ; adding, “ that he had no objection to use the words “ levis and levisima, merely as terms of practice
adopted in courts, for the more easy distinction “ between the different degrees of care ex“ acted in the performance of different con“ tracts t:" but Donellus, in opposition to his master Duaren, insisted that levis and leviffima differed in sound only, not in sense; and attempted to prove his assertion triumphantly by a regular fyllogism#; the minor proposition of which is raised on the figurative and inaccurate manner, in which positives are often used for superlatives, and conversely, even by the best of the old Roman lawyers. True it is, that, in the law Contraétus, the division appears to be
Ego certè hac in re censentibus accedo, vix quidquam generaliùs definiri posse; remque hanc ad arbitrium judicis, prout res eft, referendam.” p. 141. + Zas. Singul. Refp. lib. i. cap. 2.
I « Quorum definitiones eædem funt, ea inter fe sunt “ eadem; levis autem culpæ et leviffima una et eadem defi“ nitio est; utraque igitur culpa eadem.” Comm. Jår. Civ.
lib. xvi. cap. 7.
two-fold only, DOLUS and CULPA; which differ in species, when the first means actual fraud and malice, but in degree merely, when it denotes no more than gross neglect; and, in either cafe, the second branch, being capable of more and lefs, may be subdivided into ordinary and fight; a subdivision, which the law Si ut certo obviously requires: and thus are both laws perfectly rea conciled.
We may apply the same reasoning, changing what should be changed, to the triple division of diligence; for, when good faith is confidered as implying at least the exertion of Night attention, the other branch, Care, is subdivisible into ordinary and extraordinary; which brings us back to the number of degrees already established both by the analysis and by authority.
Nevertheless, a system, in one part entirely new, was broached in the present century by an advocate in the parliament of PARIS, who may, probably, be now living, and, pofiibly, in that professional station, to which his learning and acuteneis justly entitle him. I speak of M. LE Brun, who published, not many years ago, an Elay on Responsibility for Negle&t*, which he
Esai sur la Prestation des Fautes, à Paris, chez Saugrain, 1764.
had nearly finished, before he had seen the commentary of Godefroi, and, in all probability, without ever being acquainted with the opinion of Donellus.
This author sharply reproves the triple divifion of neglects, and seems to disregard the rule concerning a benefit arising to both, or to one, of the contracting parties; yet he charges Godefroi with a want of due clearness in his ideas, and with a palpable misinterpretation of several laws. He reads in his quidem et diligentiam; and that with an air of triumph; insinuating, that quidam was only an artful conjecture of Cujas and Le Conte, for the purpose of establishing their system; and he supports his own reading by the authority of the BASILICA ; an authonity, which, on another occasion, he depreciates. He derides the absurdity of permitting negligence in any contract, and urges, that such permission, as he calls it, is against express law: “ now,
says he, where a contract is beneficial to both
parties, the doctors permit sight negligence, “ which, how flight foever, is still negligence, “ and ought always to be inhibited." He warmly contends, that the Roman laws, properly understood, admit only two degrees of diligence; one, measured by that, which a provia dent and attentive father of a family uses in his own concerns; another, by that care, which