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thing was called custodia. Various adjectives are found joined to these nouns: as omnis ; lata, latior ; levis, levior, levissima; diligens, diligentissimur ; exacta, exactissima.
Culpa thus occupies all the middle ground between casus and dolus ; between absolute non-imputability on the one hand, and absolute liability, under all circumstances, on the other. But the obligee's liability was not coextensive with this ground. As a general rule, he was held to bring to the performance of his obligations the care which a prudent man might reasonably be expected to exercise under the circumstances of the given case. If he failed in this, he was in culpa.
Culpa lata, culpa latior, magna culpa; were terms used of a debtor whose conduct might be aptly expressed in English by the phrase, “ He acted like a fool.” Lata culpa est nimia negligentia ; i. e. non intelligere quod omnes intelligunt. Latæ culpæ finis est, non intelligere quod omnes intelligunt. Lata culpa, sometimes called culpa dolo proxima, was generally considered to be equivalent to dolus ; that is, in the absence of stipulation, no distinction was made between them in respect to liability : “ Magnam tamen negligentiam placuit in dolo cadere ;” “ Magna negligentia culpa est; magna culpa dolus est.”
To culpa lata all other imputable culpa was put in opposition : either as culpa simply, without a qualifying adjective ; or as omnis culpa, culpa levis, levior; and in one single passage, that being the only place in which the expression occurs, culpa levissima.
The adjectives levis, levior, levissima, were not used in opposition one to the others, to mark a division of degrees; but in opposition to the adjectives lata, latior, magna, and to the noun dolus, to mark the division of culpa, or negligence proper, from dolus, or intention, — culpa lata, as we have seen, being ranked with dolus. Beyond this, these various comparatives and superlatives are nothing but variations in the style of the several authors employing them, or in the style of the same author writing at different times.1
1 It is singular to observe how near Sir William Jones himself came to hitting upon this explanation. Had not his mind been fully occupied in the attempt to bend every thing to support his own theory, it would seem as if he could not have missed it. He says : “ Locatio, or locatio-conductio, rei, is a contract by which the hirer gains a transient, qualified property in the thing hired, and the owner acquires an absolute property in the stipend, or price, of the hiring; so that, in truth, it bears a strong resemblance to the contract of emptio-venditio, or sale; and, since it is advan.
But we can form no definite ideas of what culpa levis and what culpa lata are, unless we have standards, types, with which to compare them. For the culpa levis, the Roman lawyers took for a type a careful person who was sui juris (quisque diligens, diligentissimus pater familias), or as it is expressed in English law, since by that law every man is presumably sui juris, a prudent man. To be exempt from omnis culpa, culpa levis, one must have conducted himself as a prudent man. Culpa autem abest, si omnia facta sunt, quæ diligentissimus quisque observaturus fuisset. This conduct the Roman jurists called exacta, exactissima diligentia. Talis diligentia qualem quisque diligentissimus pater familias suis rebus adhibet. For the culpa lata, they took as a type a man of the lowest class. There was culpa lata when there was negligence which the man of grossest intellect would not have been guilty
tageous to both contracting parties, the harmonious consent of nations will be interrupted, and one object of this essay defeated, if the laws of England shall be found, on a fair inquiry, to demand of the hirer a more than ordinary degree of diligence. In the most recent publication that I have read on any legal subject, it is expressly said, ‘that the hirer is to take all imaginable care of the goods delivered for hire.' Esp. N. P. 625.] The words, “all imaginable,' if the principles before established be just, are too strong for practice, even in the strict case of borrowing; but, if we take them in the mildest sense, they must imply an extraordinary degree of care; and this doctrine, I presume, is founded on that of Lord Holt in the case of Coggs and Bernard, where the great judge lays it down that, if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a family uses. It may seem bold to controvert so respectable an opinion; but, without insisting on the palpable injustice of making a borrower and a hirer answerable for precisely the same degree of neglect, and without urging that the point was not then before the court, I will engage to show, by tracing the doctrine up to its real source, that the dictum of the chief justice was entirely grounded on a grammatical mistake in the translation of a single Latin word.
“In the first place, it is indubitable that his lordship relied solely on the authority of Bracton, whose words he cites at large, and immediately subjoins, 'whence it appears,' &c. Now the words, talis ab eo desideratur custodia, qualem diligentissimus pater familias suis rebus adhibet, on which the whole question depends, are copied exactly from Justinian; who informs us in the proem to his Institutes, that his decisions in that work were extracted principally from the Commentaries of Gaius; and the epithet diligentissimus is in fact used by this ancient lawyer, and by him alone, on the subject of hiring : but Gaius is remarked for writing with energy, and for being fond of using superlatives where all other writers are satisfied with positives ; so that his forcible manner of expressing himself misled the compilers employed by the emperor, whose words Theophilus rendered more than literally, and Bracton transcribed; and thus an epithet which ought to have been translated ordinarily diligent’has been supposed to mean extremely careful.'! This same criticism applied to comparatives as well as to superlatives, and to other writers as well as to Gaius, would have given the true solution; but with it Sir William Jones's own structure would have crumbled.
of, - negligence of which any one might have foreseen the consequences, and which any one would have shunned. Latæ culpce finis est non intelligere quod omnes intelligunt. When the negligence was considered in this way, it was said by the commentators to be appreciated in abstracto. But there was another way of measuring negligence. They took for a type the character of the man himself whose conduct was in question. If according to the nature of the case he was liable for culpa levis, they said he was bound to take more care than he was in the habit of taking of his own concerns, if a prudent man would have taken more. Nec sufficit ei eandem diligentiam adhibere quam suis rebus adhibet, si alius diligentior custodire poterit. If he was liable for dolus and culpa lata, he fulfilled his duty if he took as much care as he took of his own concerns. Sufficit etenim talem diligentiam adhibere, qualem suis rebus adhibere solet. In this way the negligence was said to be appreciated in concreto.
We have here two kinds of liability, - the liability for dolus and culpa lata, standing together as one kind of liability, and also the liability for culpa levis. We have, moreover, two modes of appreciating the liability, — that in abstracto and that in concreto.
There is no general rule, and no set of general rules, by which · it can be determined for what culpa one is liable in any particular
class of cases, or whether his liability is to be appreciated in abstracto or in concreto. The liability for the various classes of obligations was not determined upon a uniform system. Divers considerations were taken into account, but their application was not uniform. The result was, probably, nearly as follows:
The receiver of a commodatum, that is a person to whom a thing was loaned gratuitously for his use; deponens, or the person who made a gratuitous deposit; the pledgor and the pledgee; the vendor and the vendee; the letter and the hirer in the contract for hire; the mandator and the mandatary in the gratuitous mandate; the negotiorum gestor, that is one who voluntarily undertook to look after the interests of another in his absence, &c., — were all bound to exercise the same care, the care of a prudent man. If they had not exercised such care, they could not excuse themselves by showing that they had exercised the care they gave to their own affairs. They were liable for culpa levis in abstracto.
Partners, joint-owners, co-heirs, tutors, curators, and the husband in relation to his wife's property in which he had an interest,
&c., were, on the other hand, allowed to show, as a matter of defence, that if they had been wanting in the care of prudent men, still they had given to the affairs with which they were intrusted the same care which they gave to their own. They were liable for culpa levis in concreto.
He who gratuitously loaned a thing for another's use, and he who gratuitously received a deposit, were both liable for the want of that care which they used about their own affairs; but the burden of proof was upon the plaintiff to show that want of care.
If the view here given of the Roman law is substantially correct, it affords very little support for the doctrine of a symmetrical threefold division of degrees of negligence.
It has sometimes been said, that though there may not be, in the English law, three degrees of negligence, yet there are three degrees of care; and that, care and negligence being correlative terms, the result is the same. The answer is that, since care and negligence are correlative terms, if there be not three degrees of negligence there are not three degrees of care.
1 The authorities relied upon to justify the above view of the Roman law are: “ Cours de Droit Romain, par Charles Maynz, professeur de droit à l'université de Liege” (Brussels and Paris, 1870); “Explication Historique des Instituts de L'Empereur Justinien, par M. Ortolan, professeur à la faculté de droit de Paris," &c. (Paris, 1870); “ Cours Elémentaire de Droit Romain, par M. Charles Demangeat, professeur de Droit Romain à la faculté de droit de Paris,” &c. (Paris, 1866); “ Manuel de Droit Romain, par E. Lagrange, docteur en droit” (Paris, 1869); “The Pandects, a treatise on the Roman Law, &c., by J. E. Goudsmit, LL. D., professor of Jurisprudence in the University of Leyden, translated from the Dutch by R. De Tracy Gould, M.A.” (London, 1873); and a letter of Professor Goudsmit, which he was kind enough to write to the author of this article in answer to some inquiries addressed to him upon the subject.
TESTAMENTARY POWERS OF SALE.
THERE is, perhaps, no class of instruments which come under the cognizance of the law, where the intention of the parties is to form an element of consideration, in which greater difficulty arises in ascertaining that intention and enforcing it in accordance with the rules of law than in wills ; and in no branch of the construction of wills have the courts been driven to a greater nicety than in the interpretation of powers and trusts, and the discrimination between these two. To add to the inherent difficulties of the subject, the department of trusts is of later origin, or rather development, than the general rules of real property, and the enunciation of these by the elder authorities of the common law; and these latter, with the decisions founded on them, present quite as much conflict inter se as assistance towards forming a coherent or symmetrical system of the principles of this topic of the law.
In recurring, therefore, to the older authorities, great discrimination must be exercised in referring to cases, as support can readily be drawn from them for opposite sides of almost every question which arises in this department; and the true rule is rather to eliminate from than to attempt to harmonize the various decisions and propositions of the text writers when determining what are powers and what trusts, and who are authorized to execute the former.
In Tainter v. Clark,? which may be regarded as a leading case in this commonwealth, the court decided that an administrator de bonis non cum testamento annexo could not execute a power given by the will to the executor, to sell such of the testator's real estate as in his judgment was best to raise the money necessary to pay the testator's debts and certain pecuniary legacies given by the will. The power in question was not coupled with an interest, but was united with a trust to dispose of the proceeds as executor, i. e., to pay debts and legacies, and was given in the same clause in which the executor was appointed, and immediately
1 13 Mete. 220.