Gaius, Legal Doctrines of Daily Application and Utility. Book II. The public use of the banks of rivers is subject to the Law of Nations, just as the rivers themselves are. Therefore, everyone is free to conduct a boat to the bank; to attach ropes to trees growing there; to dry nets, and draw them up from the sea; and to deposit any cargo thereon; just as he can navigate the river itself. The ownership of the banks, however, is vested in those to whose lands they are contiguous; for which reason the trees growing upon them also belong to the latter. 1Those who fish in the sea have a right to erect a hut upon the shore in which to shelter themselves.

Gaius, Diurnal, or Golden Matters, Book II. An usufruct can be created in any real property by means of a legacy, so that the heir may be directed to transfer the usufruct to some person; and he is understood to transfer it if he conducts the legatee upon the land or permits him to enjoy or use the same. Where any one wishes to create an usufruct, he can do so by means of agreements and stipulations, without making a will. 1An usufruct may be created not only with reference to land and buildings but also with reference to slaves, beasts of burden, and other property. 2In order, however, that the mere ownership may not become absolutely worthless on account of the perpetual existence of the usufruct, it has been decided that the usufruct may be extinguished in various ways, and revert to the mere ownership. 3Moreover, in whatever way an usufruct is created and terminated, mere use can in the same way be created and terminated.

Gaius, Diurnal, or Golden Matters, Book II. The party entitled to the use can remain on the land only as long as he does not molest the owner of the same, or interfere with those who are engaged in agricultural pursuits; and he cannot sell, lease, or transfer gratis to anyone the right which he has.

Gaius, Diurnal, or Golden Matters, Book II. A testator in his will can direct his heir not to raise the height of his house, in order to avoid obstructing the light of an adjacent building, or charge him to permit a neighbor to insert a beam into his wall, or to allow the rain water to fall on his premises from his roof, or permit his neighbor to walk or drive through his land or conduct water from it.

Gaius, Diurnal or Golden Matters, Book II. Ad Dig. 17,1,2 pr.ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur wegen Dolus nicht auch wegen culpa.The obligation of mandate is contracted between us whether I entrust you only with my business, or whether I charge you only with that of another party, or with his along with mine, or with my business and yours or with yours and that of another. Where I direct you to attend to a matter which concerns you alone, the mandate is superfluous, and no obligation whatever arises from it. 1A mandate only has reference to an affair of mine where, for instance, I direct you to transact my business, or to purchase a tract of land for me, or to become my surety. 2It only has reference to the affairs of another where, for example, I direct you to transact the business of Titius, or to purchase a tract of land for him, or to become his surety. 3It has reference to my affairs and those of another, where, for example, I direct you to transact the business of Titius and myself, or to purchase a tract of land for myself and Titius, or to become surety for him. 4It has reference to your affairs and mine where, for instance, I direct you to lend money at interest to someone who is negotiating a loan on my account. 5It has reference to your affairs and those of another, where, for instance, I direct you to lend money at interest to Titius, but if I direct you to lend it to him without interest, the obligation of mandate is only contracted in favor of a third party. 6Ad Dig. 17,1,2,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 21.The obligation of mandate is only contracted in favor of you, where, for instance, I direct you to rather spend your money for the purchase of land than to lend it at interest; or, on the other hand, to rather lend it at interest than to invest it in land. A charge of this kind is, properly speaking, rather advice than a mandate, and on this account it is not obligatory, for the reason that no one is bound by advice, even though it may not be beneficial to the party to whom it is given; because every one is free to investigate whether the advice will be advantageous to him or not.

Gaius, Diurnal or Golden Matters, Book II. Proculus, however, thinks that he can bring an action for the amount of the established price; and this opinion is indeed the more indulgent one.

Gaius, Diurnal, or Golden Matters, Book II. One partner is liable to another on the ground of negligence, that is to say of failure to act and lack of diligence. Negligence in this instance, however, is not understood to mean want of the most exact diligence, for it is sufficient for him to employ the same diligence in the partnership affairs as he is accustomed to do in his own; because where anyone takes a partner who displays very little diligence he has only himself to blame.

Gaius, Daily Occurrences, Book II. The following also is true, namely: if the vendor has need of the vessels for the new vintage, and he is a merchant who is in the habit of purchasing and selling wine, the time must be considered when the wine can conveniently be removed from the possession of the vendor. 1Moreover, let us see in what way the vendor must take care of the wine before the time appointed to measure it arrives; must he exercise exact or ordinary diligence, or is he only liable for fraud? I think that the vendor should merely exercise ordinary diligence, and is excusable in case of unavoidable accident or the display of superior force.

Gaius, Daily Occurrences, Book II. Where wine in casks is sold, and it is spoiled on account of its nature, before it is removed by the purchaser, and the vendor has vouched for the good quality of the wine, he will be liable to the purchaser; but if he said nothing with reference to this, the purchaser must bear the loss, either because he did not taste the wine, or, if he did taste it, he formed an incorrect opinion, and has only himself to blame. It is clear that if the vendor knew that the good quality of the wine would not last until the day when it was to be removed, and did not notify the purchaser, he will be liable to the extent of the interest of the latter in being warned.

Gaius, Daily Events, Book II. Leasing and hiring resembles purchase and sale, and is established by the same rules of law. For as purchase and sale is contracted by an agreement as to the price to be paid, so also is leasing and hiring understood to be contracted where an agreement is made as to the rent. 1Purchase and sale is held to bear such a resemblance to leasing and hiring that, in some instances, it is customary to make the inquiry as to whether the transaction is one of purchase and sale, or one of leasing and hiring; for example, if I have a contract with a goldsmith to make me some rings of a certain weight, and of a designated form, and he agrees to make them for three hundred aurei; is this a purchase and sale, or a leasing and hiring? It is held that it is only a single transaction, and is rather a purchase and sale than a leasing and hiring. If, however, I furnish him the gold, and compensation for his work is agreed upon, there is no doubt that this is a leasing and hiring.

Ad Dig. 22,1,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.Gaius, Daily Occurrences, Book II. Ad Dig. 22,1,28 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 5.The yield of flocks, such as milk, hair, and wool, is also considered profit. Therefore lambs, kids, and calves, at birth, immediately become the absolute property of a bona fide possessor, or an usufructuary. 1The offspring of a female slave is not, however, considered to be profit, and therefore belongs to the owner of the property. For it would seem absurd for a man to be classed under the term “profit,” when Nature has prepared the fruits of everything for the benefit of the human race.

Gaius, Diurnal or Golden Matters, Book II. We obtain the ownership of certain property by the Law of Nations, which is everywhere observed among men, according to the dictates of natural reason; and we obtain the ownership of other things by the Civil Law, that is to say, by the law of our own country. And because the Law of Nations is the more ancient, as it was promulgated at the time of the origin of the human race, it is proper that it should be examined first. 1Therefore, all animals which are captured on land, on sea, or in the air, that is to say, wild beasts and birds, as well as fish, become the property of those who take them.

Gaius, Diurnal or Golden Matters, Book II. For what does not belong to anyone by natural law becomes the property of the person who first acquires it. 1Nor does it make any difference, so far as wild animals and birds are concerned, whether anyone takes them on his own land, or on that of another; but it is clear that if he enters upon the premises of another for the purpose of hunting, or of taking game, he can be legally forbidden by the owner to do so, if the latter is aware of his intention. 2When we have once acquired any of these animals, they are understood to belong to us, as long as they are retained in our possession; for if they should escape from our custody and recover their natural freedom, they cease to belong to us, and again become the property of the first one who takes them,

Gaius, Diurnal or Golden Matters, Book II. Wild animals are understood to recover their natural freedom when our eyes can no longer perceive them; or if they can be seen, when their pursuit is difficult. 1It has been asked whether a wild animal which has been wounded in such a way that it can be captured is understood immediately to become our property. It was held by Trebatius that it at once belongs to us, and continues to do so while we pursue it, but if we should cease to pursue it, it will no longer be ours, and will again become the property of the first one who takes it. Therefore, if during the time that we are pursuing it another should take it, with the intention of himself profiting by its capture, he will be held to have committed a theft against us. Many authorities do not think that it will belong to us, unless we capture it, because many things may happen to prevent us from doing so. This is the better opinion. 2The nature of bees, also, is wild. Hence, if they settle upon one of our trees, they are not considered to belong to us until we have enclosed them in a hive, any more than birds who have made their nests in our trees. Therefore, if anyone else should shut up the bees, he will become their owner. 3Likewise, if bees make honey, anyone can take possession of it without being guilty of theft. But, as we have already stated, if anyone enters upon the land of another for such a purpose, he can legally be forbidden by the owner from doing so, if the latter is aware of his intention. 4A swarm of bees which has left our hive is understood to be ours as long as it is in sight and its pursuit is not difficult; otherwise, it becomes the property of the first one who takes possession of it. 5The nature of peacocks and pigeons is also wild. Nor does it make any difference whether or not they have the habit of flying away and returning; for bees, whose nature has been decided to be wild, do the same thing. Certain persons have stags, which are so tame that they go into forests and return, and no one denies that their nature is wild. Moreover, with reference to such animals as have the habit of going away and returning, the following rule has been adopted, namely: “That they shall be understood to belong to us, as long as they have the intention of returning, but if they should cease to have this intention, they will no longer be ours, and will become the property of the first occupant.” They are understood to have ceased to have the intention to return where they have lost the habit of doing so. 6The nature of chickens and geese is not wild, for it is well known that there are wild chickens and wild geese. Hence, if my geese or my chickens, having been frightened for any reason, fly so far that I do not know where they are, I will, nevertheless, retain ownership over them, and anyone who takes them with the intention of profiting by it will be held to have committed theft. 7Likewise, anything which is taken from the enemy immediately becomes by the Law of Nations the property of him who takes it.

Gaius, Diurnal, or Golden Matters, Book II. To such an extent is this true that even men who are free become the slaves of the enemy; but, still, if they escape from the power of the enemy they will recover their former freedom. 1Moreover, anything which a river adds to our land as alluvium is acquired by us under the Law of Nations. That, however, is considered to have been added by alluvium which is added little by little, so that we cannot perceive the amount which is added at each moment of time. 2But if the force of a stream takes a portion of your land away from you, and brings it upon mine, it is evident that it will continue to be yours. If, however, it should remain on my land for a long time, so that the trees which it brought with it take root in my soil, it will be considered to form part of my land from that time. 3Where an island arises in the sea (which rarely happens), it becomes the property of the first occupant; for it is considered to belong to no one. Where an island is formed in a river (which takes place very frequently), and it occupies the middle of the stream, it becomes the common property of those who have land near the banks on both sides of the stream in proportion to the extent of the land of each person along the banks. If the island is nearer to one side than the other, it will belong to him alone who has land along the bank on that side of the stream. 4If a river overflows on one side, and begins to run in a new channel, and afterwards the new channel turns back to the old one, the field which is included between the two channels and forms an island will remain the property of him to whom it formerly belonged. 5If, however, the stream, having abandoned its natural bed, begins to flow elsewhere, the former bed will belong to those who have land along the bank, in proportion to the extent of the land situated there, and the new bed will come under the same law as the river itself does, that is, it will become public by the Law of Nations. But if, after a certain length of time, the river should return to its former bed, the new bed will again belong to those who own the land along the banks. Where the new bed occupies all the land, even though the river may have returned to its former channel, he to whom the land belonged cannot, strictly speaking, assert any right to the bed of the stream; because the land which formerly belonged to him has ceased to be his, having lost its original form; and since he has no adjoining land, he cannot, by reason of neighborhood, be entitled to any part of the abandoned bed. To rigidly observe this rule, however, would be a hardship. 6The rule is different when anyone’s field is entirely covered by water, for the inundation does not change the form of the land; and it is clear that when the water subsides, the land will belong to him who previously owned it. 7Ad Dig. 41,1,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 2.When anyone makes an article in his own name with materials belonging to another, Nerva and Proculus think that its ownership will belong to him who made it, for the reason that what has been fabricated formerly belonged to no one. Sabinus and Cassius think that, in accordance with natural reason, he who owned the materials would also be the proprietor of what was made out of them, because no article can be manufactured without materials; as, for instance, if I should make a vase out of your gold, silver, or brass; or a ship, a cupboard, or a bench cut out of your boards; or a garment out of your cloth; or mead out of your wine and honey; or a plaster, or an eye-wasli out of your drugs; or wine out of your grapes, or grain; or oil out of your olives. There is, however, a moderate opinion entertained by persons of good judgment, who believe that, if the article can be reduced to its original form and material, what Sabinus and Cassius hold is true, but if this cannot be done, the opinion of Nerva and Proculus should be adopted; for example, when a vase of gold, silver, or copper can be melted and returned to its original rough metallic mass, but wine, oil, or grain cannot be restored to the grapes, olives, and ears from which it was derived; nor can mead be restored to the honey and wine of which it is composed, nor can a plaster or an eye-wash be resolved to the drugs out of which it was compounded. Still it seems to me that some authorities very properly held that no doubt should exist on this point, when wheat has been obtained from the ears of others to whom the latter belonged, for the reason that the grain retains the ears in its perfect form, and he who threshes it does not manufacture a new article, but only extracts what is already in existence. 8If two owners agree to mix materials belonging to them, the entire compound becomes their common property, whether the materials are of the same description or not; as where they mix wine or melt silver, or combine different kinds of substances; or where one contributes wine and the other honey, or one gold and the other silver, although compounds of mead and electrum are products of a dissimilar character. 9The same rule of law will apply where materials belonging to two persons are mingled without their consent, whether they are of the same, or of a different nature. 10Where one person erects a building on his own ground out of materials belonging to another, he is understood to be the owner of the building, because everything is accessory to the soil which is built upon it. Nevertheless, he who was the owner of the materials does not, for this reason, cease to be such, but, in the meantime, he cannot bring an action to recover them, or to compel their production, under the Law of the Twelve Tables, by which it is provided that no one can be forced to remove timbers belonging to another which were used in the construction of his own house, but he must pay double their value. By the term “timbers” out of which buildings are constructed, all materials are meant. Therefore, if for any reason a house should be demolished, the owner can then bring an action to recover the materials, and have them produced. 11Ad Dig. 41,1,7,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 175a, Note 2; Bd. I, § 182, Note 13.The question was very properly asked, if the person who built the house under such circumstances should sell it, and it, after having been owned for a long time by the purchaser, should be demolished, whether the owner would still have a right to claim the materials as his own. The reason for the doubt is that, although the entire building can be acquired by prescription after a long time has elapsed, it does not follow that the separate materials of which it was composed can also be acquired. The latter opinion has not been adopted. 12On the other hand, if anyone constructs a building on the land of another with his own materials, the building will become the property of the person to whom the ground belongs. If he knew that the land was owned by another, he is understood to have lost the ownership of the materials voluntarily; and therefore if the house is demolished he will have no right to claim them. Where, however, the owner of the ground claims the building, and does not reimburse the other for the value of the materials and the wages of the workmen, he can be barred by an exception on the ground of fraud; and if he who constructed the building did not know that the land belonged to another, and hence erected it in good faith, this course should certainly be pursued. For if he was aware that the land belonged to another, it can be alleged that he was to blame for rashly building a house upon land which he knew was not his. 13If I plant a shrub belonging to another upon my ground, it will belong to me. If, on the other hand, I plant one of mine upon the ground of another, it will belong to him; provided that in either case it has taken root; for, otherwise, it will remain the property of him who previously owned it. In accordance with this, if I press a tree belonging to another into my soil, so it takes root, it will become my tree; for reason does not permit that a tree shall be considered to belong to another unless it takes root in his soil. Hence, if a tree planted near a boundary line sends its roots into the adjoining earth, it becomes the common property of both owners,

Gaius, Diurnal or Golden Matters, Book II. For this reason plants which have taken root on land belong to it, and grain which has been sowed, is also considered to form a part of the soil. Moreover, as in the case of one who builds upon land belonging to another, if the latter brings an action to recover the building, he can be barred by an exception on the ground of fraud; so, likewise, he who has, at his own expense, sowed seed upon the land of another, can protect himself by means of an exception. 1Letters, also, even though they may be of gold, form part of the papyrus and parchment on which they are written; just as materials of which houses are constructed are accessory to the land, and, on the same principle, seeds that have been sown form part of it. Hence, if I write a poem, a history, or a speech of my own upon papyrus or parchment belonging to you, not I, but you, will be understood to be the owner of the work. If, however, you bring an action against me to recover your books or your parchment, and refuse to pay me the expense incurred by writing, I can protect myself by an exception on the ground of fraud, provided I have obtained possession of the articles in good faith. 2Pictures, however, do not usually constitute part of the tablets on which they are painted, as letters do of the papyrus and parchment on which they are written; but, on the other hand, it has been decided that the tablet is accessory to the painting. Still, it is ever perfectly proper that a prætorian action should be granted to the owner of the tablet against him who painted the picture, provided he is in possession of the tablet; of which action he can effectually avail himself if he tenders the expense of painting the picture: otherwise, he will be barred by an exception on the ground of fraud, as he certainly should have paid the expense if he was the bona fide possessor of the tablet. We say, however, that an action to recover the tablet will properly lie in favor of him who painted it, against the owner, but he should tender him the value of the tablet; otherwise, he will be barred by an exception on the ground of fraud. 3Property which becomes ours by delivery is acquired by us under the Law of Nations; for nothing is so conformable to natural equity as that the wish of an owner, who intends to transfer his property to another, should be complied with. 4It, however, makes no difference whether the owner himself delivers the article in person to another, or whether someone else does it with his consent. Hence, where the free administration of his affairs is entrusted to anyone by a person about to depart upon a journey to a distant country, and the former, in the regular course of business, sells and delivers anything to a purchaser, he transfers the ownership of the same to him who receives it. 5Sometimes, even the mere wish of the owner is sufficient to transfer the property without delivery, as, for instance, if I have lent or hired an article to you, and then after having deposited it with you, I sell it to you. For, although I have not delivered it to you for this reason, still, I render it your property by the mere fact that I permit it to remain in your hands on account of it having been purchased. 6Ad Dig. 41,1,9,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 153, Note 7.Likewise, if anyone sells merchandise which is stored in a warehouse, and, at the same time, delivers the keys of the warehouse to the purchaser, he transfers to him the ownership of the merchandise. 7Moreover, at times, the will of the owner transfers the title to property to a person who is not designated; for example, where someone throws anything into a crowd, for he does not know how much of it any individual may pick up; and, still, as he is willing that whatever anyone may pick up shall belong to him, he immediately renders him the owner of the same. 8The rule is different where merchandise is thrown into the sea during a storm for the purpose of lightening a ship, for it remains the property of the owner, as it was not thrown overboard with the intention of relinquishing it, but that the owner together with the ship might the more readily escape the perils of the sea. For which reason, if anyone obtains the property while on the sea itself, or after it has been cast on land by the force of the waves, and removes it with the intention of profiting by it, he commits a theft.

Gaius, Diurnal or Golden Matters, Book II. It can happen in several ways, that a person laboring under some mistake may sell or give away property as his own which belongs to another; and, under such circumstances, it can be acquired by usucaption by a bona fide possessor; for instance, if the heir should sell property which was lent to the deceased, or leased by him, or deposited with him, believing that it belonged to the estate. 1Likewise, if anyone, misled by some opinion, and thinking that he is entitled to an estate, which is not the case, should alienate property forming part of the same; or where a person to whom the usufruct of a female slave belongs, believing her children to be his, for the reason that the increase of flocks belongs to the usufructuary, should sell the children;

The Same, Diurnal or Golden Matters, Book III. A person cannot, himself acquire the property by usucaption in this case, because he knows that it belongs to another, and therefore he is a possessor in bad faith; but if he transfers it to someone else who receives it in good faith, the latter can acquire it by usucaption, for the reason that he has gained possession of property which has not been acquired by force, and has not been stolen: as the opinion of certain ancient authorities, who held that a theft of land or a house could be perpetrated has been abandoned.

Gaius, Golden Matters, Book II. Obligations arise whether from contract, from crime, or from various other causes by operation of law. 1Obligations arise from contracts either by words or by consent. 2In the case of a loan for consumption, the obligation is contracted with reference to the property lent. Such a loan consists of articles which can be weighed, counted, or measured; as, for instance, wine, oil, grain, and money; we also lend things in such a way that their ownership vests in the person who receives them with the expectation that other articles of the same kind and quality will be given us in return. 3He to whom we lend anything for use is liable to us on account of the transfer of the property, but he is also obliged to restore the very same thing which he received. 4Ad Dig. 44,7,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.He, however, who has received a loan for consumption, still remains liable if he loses what he receives by any accident whatsoever; but anyone who receives an article for use is released from liability if he loses what he received by an accident which human weakness could not provide against (as, for example, by fire, by the falling of a building, or by shipwreck). He is, nevertheless, held to the strictest diligence in taking care of the article loaned; nor will it be sufficient if he loses what he received by an accident which human weakness to his own property, provided another could have exercised greater vigilance in its preservation. He is also liable for occurrences which could not be prevented when it was his fault that the property was lost; for instance, if anyone, having invited his friends to supper, should borrow silverware for that purpose and then, having gone on a journey and taken the silverware with him, should lose it, either by shipwreck or by an attack of robbers or enemies. 5He, also, with whom we deposit property is liable to us for it, and is obliged to return the same article which he himself received. If, however, he should, through negligence, lose what was entrusted to his care, he will be free from liability, as he did not receive it for his own benefit, but for that of the person from whom he obtained it, and he will only be responsible if any of it was lost through fraud. He, however, will not be liable on the ground of negligence, who entrusted his property to a friend of his, who was careless, for he has only himself to blame. Still, it has been decided that gross negligence is included in the offence of fraud. 6A creditor who has received property in pledge is also liable on this ground, and is obliged to return the very same article which he received. 7An obligation is verbally contracted by question and answer; as when we stipulate that something shall be paid to or done for us. 8Anyone can be bound either in his own name or in that of another. Where a person is bound in the name of another, he is called a surety, and we frequently bind a man in his own name, and receive others from him who are bound by the same obligation, in which way we provide for the better discharge of an obligation which is contracted for our benefit. 9If we stipulate for something to be given to us, which is of such a nature that this cannot be done, it is evident that such a stipulation is void by natural law; as, for example, if an agreement is entered into for the delivery of a freeman, or for that of a slave who is dead, or for a house which has been burned, and this is done between parties who did not know that the man in question was not free, or that the slave was dead, or that the house had been destroyed by fire. The rule is the same if anyone should stipulate for the transfer of a sacred or religious place to himself. 10A stipulation is also void if a person contracts for property which belongs to himself, not knowing that this is the case. 11It is also established that a stipulation made under an impossible condition is void. 12It is clear, by natural law, that the act of an insane person who makes either a stipulation or a promise is of no effect. 13He resembles a child who is of such a tender age that he does not yet comprehend what he is doing. The law, however, is more indulgent to him, for anyone who can speak is believed to be capable of making a valid stipulation or promise. 14It is perfectly clear that a mute cannot contract a verbal obligation. 15The same rule also applies to a person who is deaf, for, if he can speak or promise, he should hear the words of the stipulator; but if he stipulates, he should hear the words of the promisor. Hence it is apparent that we are not speaking of one who hears with difficulty, but of one who does not hear at all.