inscrutable will, and look solely to what purports to be its CHAP. VIII. outward expression 1. We shall hope later to establish that this is at all events the case with that species of Juristic Act which is called a 'Contract 2.'

The mode in which the will ought to be expressed for the Form. production of any given act is its 'form.' In some cases a special form is required by law, as in Roman law for a 'stipulatio,' and in English law for a contract not to be performed within a year, for a marriage, or for the probate of a will. The form may be such as to preclude certain classes of persons from doing the act, as 'peregrini' were incapable of pronouncing the solemn formula of the stipulation. In other cases the form of the act is immaterial, and the determination of will is sometimes expressed only by a course of conduct 3.

tation.

Most, but not all, juristic acts may in modern times be Represenperformed through a Representative. A representative whose authority extends only to the communication of the will of his principal is a mere messenger, nuntius.' A representative whose instructions allow him to exercise an act of will on behalf of his principal, to act to some extent, as it is said, 'at his own discretion,' is an 'Agent." His Agency. authority may be express or implied, and he may, in his

1 This view has been maintained, with reference to all Juristic Acts, by Schall, Der Parteiwille im Rechtsgeschäft, 1877; to Juristic Acts inter vivos, by Röver, Uber die Bedeutung des Willens bei Willenserklärungen, 1874; to Contracts, by Regelsberger, Civilr. Erörterungen, I. pp. 17-23, 1868, and Bähr, in Ihering's Jarhb. xiv. pp. 393-427. 1875; to obligatory Contracts, by Schlossmann, Der Vertrag. pp. 85-140. 1876. See Windscheid, Wille und Willenserklärung. It is temperately advocated, principally with reference to Contracts, by Leonhard, Der Irrthum bei nichtigen Verträgen, 1882-3. I am unable to agree with the learned author that Savigny is to be interpreted as agreeing with the newer theory, although he confesses that a difference between Wille and Willenserklärung is important only when it can be known to others, System, iii. p. 258. So also Windscheid, u. s., has to define 'Willenserklärung' as 'Der Wille in seiner sinnenfalligen Erscheinung.'

2 Infra, Chapter xii.

3

* So the acceptance of an executorship will be inferred from acting as an executor. In some cases the natural inference from a course of conduct may be rebutted by 'Protest,' or 'Reservation.' Cf. Dig. xxix. 2. 20; xx. 6. 4.

CHAP. VIII. dealings with third parties, disclose, or he may not disclose, with different results, the fact that he is acting on behalf of another. The scanty and gradual admission of agency in Roman law is a well-known chapter in the history of that system. The tendency of modern times is towards the fullest recognition of the principles proclaimed in the Canon law: 'potest quis per alium quod potest facere per seipsum;' 'qui facit per alium est perinde ac si faciat per seipsum 1.'

One-sided and two

sided juristic acts.

Character

Juristic Acts are distinguished into one-sided,' where the will of only one party is active, as in making a will, accepting an inheritance, or taking seisin; and 'two-sided,' where there is a concurrence of two or more wills to produce the effect of the act, which is then a 'contract,' in the widest sense of that term.

The characteristics of a juristic act of any given species istics of. are divided into those which are essentialia,' 'naturalia,' and 'accidentalia negotii.'

Essentialia.

Naturalia.

Accidentalia.

Nullities.

The essentialia' of the act are the facts without which it cannot exist, e.g. according to Roman law there could be no contract of sale without a price fixed.

The 'naturalia' are those facts which are always presumed to be part of the transaction in question, though the presumption may be contradicted, e.g. the presumption in Roman law that the property in goods sold did not pass till the price had been paid.

The accidentalia' are those facts which in the given case are not presumed and must therefore be proved.

A pretended act which is deficient in any one of the 'essentialia negotii' is a 'nullity,' 'void ab initio ;' when, as a rule, the deficiency cannot be supplied by any subsequent change of circumstances, 'quod initio vitiosum est non potest tractu temporis convalescere 2.' In exceptional cases the deficiency can be waived, or is cured by lapse of time. In

1 C. 68, de R. I. in Sext.; c. 72, eodem.

2 Dig. 1. 17. 29.

certain other cases the act, though not ipso facto void, is CHAP. VIII. 'voidable' at the option of a party concerned.

The 'naturalia' and 'accidentalia' can alone be varied by Conditions. the will of the parties to the act. The variations which may thus be superadded to necessary portions of the act are its 'conditions.' Some of them, such as 'dies' and 'modus,' affect only its operation; others, which are conditions in the most accurate sense of the term, affect also its very existence. Such a condition' may be defined as 'the presupposition of a future uncertain circumstance, upon which the Will of the party makes the existence of his juristic act, or of its contents, wholly or partially to depend 1.'

A condition is 'suspensive' when the commencement, and 'resolutory' when the termination, of the operation of the act is made to depend upon its occurrence.

1 Puchta, Inst. ii. p. 365.

CHAPTER IX.

THE LEADING CLASSIFICATIONS OF RIGHTS.

THE possible modes of classifying Rights are almost infinite, but four only are of first-rate importance. These depend respectively

I. Upon the public or private character of the persons concerned.

II. Upon the normal or abnormal status of the persons concerned.

III. Upon the limited or unlimited extent of the person of incidence.

IV. Upon the act being due for its own sake, or being

due merely in default of another act.

These various modes of dividing Rights have, be it observed, nothing to do with one another. They are what are called cross divisions, such as would be divisions of liquids into viscous and non-viscous, hot and cold, fermented and nonfermented; and consequently, though any given right can only exhibit one of the alternative characteristics of each mode of division, yet it may combine this with either of the characteristics of each of the other modes. Just as a liquid may be viscous, fermented, and cold, or viscous, fermented,

and hot, or non-viscous, non-fermented, and hot, and so CHAP. IX. forth, through all the possible combinations of viscosity, fermentation, heat, and their opposites.

classifica

Since therefore every Right exhibits either the positive or Choice of a the negative characteristic of each of the above-mentioned tion. modes of division, i. e. since every Right may be classified in accordance with its relations to each and all of the above-mentioned distinctions, it becomes a question which of these is to be adopted by the Jurist as being the radical distinction, and in what order the others are to be subordinated to it; just as a writer on fluids might have to determine whether he would set out by classifying them into viscous and non-viscous, or into fermented and nonfermented. The question is to be decided upon grounds of convenience. Whichever division is most fertile in results should obviously be selected as the radical one, to which the rest should be subordinated in the order of their relative importance.

The relative importance of the four modes of division will perhaps be self-evident when the nature of each has been fully explained.

Private

I. A very radical division of Rights is based upon a broad Public and distinction between the public or private character of the Persons. persons with whom the Right is connected. By a 'Public person' we mean either the State, or the sovereign part of it, or a body or individual holding delegated authority under it1.

By a 'Private person' we mean an individual, or collection of individuals however large, who, or each one of whom, is of course a unit of the State, but in no sense represents it, even for a special purpose.

When both of the persons with whom a right is connected Resulting are private persons, the right also is private. When one of Rights,

1 All authority is of course exercised by permission of the State, e. g. of a father over his family, but it is better to see here only a relation of private life, sanctioned by the sovereign, not a delegation of the sovereign power.

division of