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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0008-0001-0001

Author: Adams, John
DateRange: 1758-12 - 1759-01

[Notes on Civil Law, December 1758–January 1759.]1

Sequestration is when two, or more, deposit a controverted Thing, with a 3d Person, on that Condition, that he, at the Conclusion of the suit, Dispute, will restore the Thing to the Conqueror.2 This is either voluntary, which is <made> done by the Agreement of Parties, or necessary, which is done by the Authority of a Judge. This, regularly, is prohibited. From a Deposit, arises a twofold Action, direct and contrary. A direct Action of detinue, is a personal Action of good Faith, famous, public, which is given [ . . . ] to the Deponent against the Depositary, <to> for this, viz. that he may restore the thing deposited, sarcio, to repair, mend, and repair the Damage given by fraud and faults committed. Lata Culpa, by a gross fault. A contrary Action is given to the Depositary against the Deponent, to be saved harmless.
A Pawn or Pledge is a Contract of the Law of Nations, of good faith, re constans, consisting in a thing, fact, by what means, in what Ways, an Obligation <to> Contract, in fact by a fact, an Action or Deed, consisting in fact, in a Thing, by which any Thing is given to a Creditor by a Debtor or [any other?]<for a> as a Security of his Debt, on that Condition that the same Thing be restored, in Specie, on the Payment of the Debt. Soluto Debito, the Debt being paid, eadem res in Specie. From this Contract, arises an Action, direct and contrary. The direct Action <of a Pl> for a Pawn is given to the Debtor, on Payment of the Debt, against the Creditor, for this, that he restore the Pawn with all Cause, and repair the Damage, given by fraud, or by any gross or even by a light fault. Levis culpa, a light fault. A Contrary Action is given to the Creditor, against a Debtor, to be saved harmless. { 56 } Of the Performance of fraud, of fault, and Accident. Praestare. To answer for a fraud or fault is to repair the Damage, given by Deceit, by Accident or by fault. Deceit is all subtilty, Deceit, or Contrivance, employed to circumvent, deceive, or delude another. A fraud is all subtilty, Deceitfulness, or Contrivance, employed to circumvent, deceive, delude another. A fault is nothing less than Negligence [ . . . ], whether of omission or Commission, in the Affairs of another, and is T[hree]fold gross, light and lightest. A gross fault is not to use that dilligence which even a negligent father of a family uses, or to be ignorant of what all understand. This in Contracts is compared to Deceit, fraud, excepting the Case of a Capital Crime. A light fault is not to use that diligence which a thrifty and diligent father of a family, uses in his own Things. This fault is regularly meant, denoted when the Word faults is put simply in the Laws. The lightest fault is not to adhibit, use, employ, exert that diligence, which a most diligent father of a family exerts. An accidental Misfortune is a greater Strength, to which human Weakness is not able to resist. Humana, Casus fortuitus, a casual Mishap. A Chance medly. [ . . . ] Dolum. To answer for a fraud. Fraud is answered for, paid for, repaid in all Contracts. Accidents, misfortune in none, except in Lending, Loan. Loan. Payment of what is not due, is in some respects like a Loan, which nevertheless is not a true Contract but a sort of Contract, by which he who received what was [undue?] is obliged to him, who by Error and Ignorance paid what was [ . . . ] that it be [ . . . ].3 A fault, regularly, is made good, repaid, according to these 3 Rules, 1. As often as a <Contract> Bargain is driven, a Contract is taken, entered into, for the Sake of the giver alone, so often Deceit only and a gross fault is answered for, as in a Deposit. 2. As often as a Contract is celebrated, for the sake of the receiver alone, so often fraud, deceit, fault, even the lightest is answered for as in [commodatum].4 A direct Action of [ . . . ] is a personal civil Action, demanding a Thing, which is given to a Lender against the Borrower to restore the Thing lent in Specie, and answer for fraud and [ . . . ] the light fault.5 3. As often as the Utility, Advantage, Benefit of both, takes place in a Contract, so often fraud, a gross and a light fault, is answered for, as in a Pawn, Buying and selling. The aforesaid Rules concerning fraud, Negligence and Misfortune, then cease, if the contractors otherwise agree; except if it is agreed that fraud shall not be answered, even when any special Reason shall except this or that Contract from the common Rules.
Of the Obligations of Words. An Obligation of Words, or any Stipulation, is a Contract of the civil Law, of strict law, consisting in { 57 } Words, by which he, who is asked, whether he is about to give [or to do?] what he is interrogated, answers. Emancipation is an Act by which Children are dismiss[ed] from the father’s Power. Act.6 From a Stipulation arises a two fold Action, a personal Action of a certain Thing; if a certain Thing is drawn into a Stipulation and of an uncertain Thing, or an Action, from a Bargain, if an uncertain Thing is drawn into a Stipulation. Each is a personal Action, civil, of strict Law, which is given to the stipulant, against the Promisor to oblige him to perform what he promised.
Every Stipulation is either pure, or for a certain day, or conditional. A pure Stipulation is one which is contracted without [the addition?] of any time or Condition, and in that pure Stipulation, the Day of the Obligation begins, and comes immediately. The Day of the Obligation is said to proceed when a Thing, drawn into Obligation, begins to be due, altho it cannot yet be demanded. A day is said to come when that can be demanded which is due. A stipulation, at a certain day, is that which is [made] annexing a day, appointing a day, in which the Money is to be paid. A day may be added to an Obligation 2 Ways, either as a Time from which, as after 5 years I will give, or as a Time to which, as untill 5 years, or as long as I shall live. In the 1st Case, the day of the Obligation, immediately [goes?] but comes not before the day exists. It is [right?] however for the Debtor to pay before the day if he will. In the other Case also, the time being past, the Obligation is perpetuated by the Law it self, but the Promissor of the Agreement, by the Exception of the Agreement [ . . . ] may [ . . . ] himself. The time moreover may be added to the Stipulation not only expressly, but also it is sometimes tacitly implied; which happens if a Place is added to the Stipulation, the Performance it self of the Thing, or fact in it self against a space of Time. A conditional stipulation is, one which is made, with regard to a future, [uncertain?] Case, in that the day of the Obligation, neither goes nor comes, unless the Condition happens. Yet the Hope of the future Obligation is transmitted, from the Part of each Contractor to his Heirs. [But?] if the Condition is affixed to the present or the past time, that is scarcely esteemed a [Contract?] nor differs the Obligation.
{Folio: 8, upside down}7 A Stipulation is made in any Tongue yet the Question and Answer must agree, and, all things [ . . . ] drawn into that, which are in Commerce, also the facts must be possible and lawful, [ . . . ] own, not [anothers?]. If a fact is drawn into [ . . . ] in a Stipulation, the Promissor cant be compelled precisely to the fact, but is freed from [ . . . ] and therefore it is [actible?] to [ . . . ]8 Stipulator, for { 58 } thus he exempts himself from the difficulty of proving that which is due.
Of the 2 Parties of stipulating and promising. The [accessors] of the Stipulation are 2 Stipulators to each of whom the same Thing, Speech by [ . . . ] is [promised?] in the whole. The [Accessor?] of promising or of owing the [joint?] Promisers or [ . . . ] conjuncta oratione. Fellow Promisers, joint Promisers [ . . . ]9 2 [promisors?] who singly promise the same Thing, at one time, to a Person Stipulating. Stipulans, in eadem Res, the en solidum, the same thing to a [ . . . ]. Eandem Rem, in solidum. That therefore 2 may be joint Accessers to [ . . . ] of Stipulating or promising, it is required 1. that the same Thing be draw[n] into the stipulation, brought into the Stipulation. 2. That the Promise be made from one and the same Cause. 3. That the whole be promised to both, and by both. Yet one of the Accessors may be rightly obliged, purely, and the other, on Condition, or to a certain day. The Effect of such a stipulation is, that the 2 Partners may act or agree, for the whole, singly, separately, yet so that one accepting, receiving a Debt, or one paying the whole Obligation is destroyed. But if joint Debtors are obliged to any thing by an alternate Engagement, they may enjoy the Benefit [of the] Divisons. Of the Stipulation of Servants. Even servants may stipulate from the Person of their Masters, also an hereditary servant, and a common servant. But a servant acquires not any thing that is stipulated to himself, but to his Master or to the Inheritance or if there are many Masters he stipulates to each for Part, unless it was by the Order of one, or for one by name. Yet a servant, if he stipulates for a fact, acquires it to himself. Of the Division of Stipulation. [ . . . ] Stipulations are either, judicial, or praetorial, or conventional, or common.10
1. The text of this entry is written in JA’s small but familiar hand, immediately following the canceled beginning of his notes on Winthrop’s lectures, preceding, on a page of the MS otherwise left entirely blank in 1754. For the assigned date see the following note.
2. This is the beginning of JA’s notes on Johannes van Muyden’s Tractatio . . . , 3d edn., Utrecht, 1707, an abridgment of Justinian’s Institutes, which had been lent to him by Jeremy Gridley in Oct. 1758, which JA read during the following months, and which he later obtained for his own library from the sale of Gridley’s books. See the Introduction, p. 15–16, and references there; see also the titlepage of the Gridley-JA copy of the Tractatio (now in MB) as reproduced in the present volume. JA‘s notes in this entry are drawn from p. 114–121 of Van Muyden, beginning in the Institutes at bk. 3, part way through title 15, and continuing part way through title 19. Since JA is known to have resumed his reading of this work on 20 Dec. 1758 at p. 99 (Diary and Autobiography, 1:63), we may suppose the present notes were written late in Dec. 1758 or early in Jan. 1759.
It cannot be said that JA was an exemplary note-taker. He not only omitted author, title, and all references to sections and pages of the book he was abstracting, but seems to have been satisfied at times with gibberish. His writing { 59 } is so cramped and his translation so rough that sometimes, even with the Latin original in hand, it has proved impossible to render his words and grasp his meaning.
3. The preceding four lines, beginning with the word “Loan” as repeated, are out of context; they are possibly from some source cited in Van Muyden’s marginal gloss.
4. Omitted in JA’s notes; supplied from Van Muyden’s text.
5. The preceding sentence is out of context; see note 3.
6. This word and the whole sentence preceding it are out of context; see note 3.
7. The notes that follow in this entry are upside down on p. {8} of the MS, below the passage we have entitled Rules for Determining the Excellence of a Language (next entry in the Diary Fragment). It may therefore be presumed that all the notes on Van Muyden were written later than the “Rules.”
8. Five or six words undecipherable.
9. Two or three words undecipherable.
10. JA’s notes on Van Muyden continue without a break much later in the MS; see p. 100, below.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/