formed by this time a decided opinion from a preceding page of this effay.

He cenfures 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 fupport of MODESTINUS, of PAULUS, of AFRICANUS, of GAIUS, and of the great PAPINIAN himself; nor does he fatisfactorily prove the fallacioufnefs, to which he ob jects, unless every rule be fallacious, to which there are fome 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 difputed claufe: 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 leviffima; but, in order to reconcile his fyftem 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 fettled his own mind; and he concludes, indeed, with referring the decifion of every cafe on this head to that most

dangerous and moft tremendous power, the dif cretion of the judge*.

The triple divifion of neglects had also been highly cenfured by fome lawyers of reputation. ZASIUS had very juftly remarked, that neglects differed in degree, but not in fpecies; adding, "that he had no objection to use the words "levis and leviffima, merely as terms of practice "adopted in courts, for the more easy diftinction "between the different degrees of care ex"acted in the performance of different con

tracts:" but DONELLUS, in oppofition to his mafter Duaren, infifted that levis and levif fima differed in found only, not in fenfe; and attempted to prove his affertion triumphantly by a regular fyllogifm‡; the minor propofition of which is raised on the figurative and inaccurate manner, in which positives are often used for fuperlatives, and converfely, even by the best of the old Roman lawyers. True it is, that, in the law Contractus, the divifion appears to be

* "Ego certè hac in re cenfentibus accedo, vix quidquam generaliùs definiri poffe; remque hanc ad arbitrium judicis, prout res eft, referendam." p. 141.

+ ZAS. Singul. Refp. lib. i. cap. 2.

"Quorum definitiones eædem funt, ea inter fe funt "eadem; levis autem culpæ et leviffima una et eadem defi"nitio eft; utraque igitur culpa eadem." Comm. Jur. Civ. lib. xvi. cap. 7.

two-fold only, DOLUS and CULPA; which differ in fpecies, when the first means actual fraud and malice, but in degree merely, when it denotes no more than grofs neglect; and, in either cafe, the fecond branch, being capable of more and lefs, may be fubdivided into ordinary and flight; a fubdivifion, which the law Si ut certo obviously requires: and thus are both laws perfectly reconciled.

We may apply the fame reasoning, changing what should be changed, to the triple divifion of diligence; for, when good faith is confidered as implying at least the exertion of flight attention, the other branch, Care, is fubdivifible into ordinary and extraordinary; which brings us back to the number of degrees already established both by the analyfis and by authority.

Nevertheless, a fyftem, 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, poffibly, in that profeffional station, to which his learning and acuteness justly entitle him. I fpeak of M. LE BRUN, who published, not many years ago, an Effay on Refponfibility for Neglect*, which he

*

Effai fur la Preftation des Fautes, à Paris, chez Saugrain, 1764.

had nearly finished, before he had feen the commentary of Godefroi, and, in all probability, without ever being acquainted with the opinion of Donellus.

This author fharply reproves the triple divifion of neglects, and feems to disregard the rule concerning a benefit arifing 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 mifinterpretation of several laws. He reads in his quidem et diligentiam; and that with an air of triumph; infinuating, that quidam was only an artful conjecture of Cujas and Le Conte, for the purpose of establishing their fyftem; and he supports his own reading by the authority of the BASILICA ; an autho11ty, which, on another occafion, he depreciates. He derides the absurdity of permitting negligence in any contract, and urges, that fuch permission, as he calls it, is against exprefs law: "now, "fays he, where a contract is beneficial to both

parties, the doctors permit flight negligence, "which, how flight foever, is ftill 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 provident and attentive father of a family uses in his own concerns; another, by that care, which

the individual party, of whom it is required, is accustomed to take of his own poffeffions; and he, very ingeniously, substitutes a new rule in the place of that, which he rejects; namely, that, when the things in queftion are the SOLE property. of the perfon, to whom they must be restored, the holder of them is obliged to keep them with the first degree of diligence; whence he decides, that a borrower and a birer are refponfible for precisely the fame neglect; that a vendor, who retains for a time the cuftody of the goods fold, is under the fame obligation, in refpect of care, with a man, who undertakes to manage the affairs of another, either without his request, as a negotiorum geftor, or with it, as a mandatary: mandatary: "but, fays he, when the things are the JOINT property of the parties

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contracting, no higher diligence can be required "than the fecond degree, or that, which the acting party commonly ufes in his own affairs; "and it is fufficient, if he keep them, as he keeps "his own." This he conceives to be the dif tinction between the eight contracts, which precede, and the two, which follow, the words in bis quidem et diligentiam.

Throughout his work he difplays no small fagacity and erudition, but speaks with too much confidence of his own decifions, and with too much afperity or contempt of all other interpreters from BARTOLUS to VINNIUS.