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Of civil actions in personam; how they arise.

[002] 1[We have spoken above of actions which arise ex contractu],2 of which some arise
[003] from agreement, [Actions also arise quasi ex contractu [and] are so called because
[004] they arise neither wholly ex pacto nor wholly ex maleficio, but have a greatest affinity
[005] with agreements than with maleficia.3 Ex maleficio actions arise by which the
[006] wrongful deeds of men are punished, as the condictio rei furtivae, the actio vi bonorum
[007] raptorum, the actio legis Aquiliae and the actio iniuriarum.4 Quasi ex maleficio
[008] actions arise which cede neither wholly to agreements nor properly to maleficia
[009] but are closer to maleficia than to agreements.] 5others by a thing, by words,
[010] by writings [or] by consent.6 [By reason of a thing, as the condictio certi on a
[011] loan for consumption: 7a condictio certi lies on every ground and obligation out
[012] of which a specific thing is claimed, whether the contract on which the demand
[013] arises was for a specific thing or not.]8 The causae9 of such actions [arising
[014] ex pacto] are the four innominate contracts referred to above in the title on gifts,
[015] as ‘I give that you give;’ ‘I give that you do;’ ‘I do that you give;’ ‘I do that you
[016] do.’10 11[The petitory actio hereditatis lies for those to whom the mere right descends
[017] from ancestors, as to nearer heirs.

Of the possessory action for an inheritance, which may be called the assise of novel disseisin.

[019] 12The hereditatis petitio possessoria [lies] on the possession of some ancestor, for a
[020] thing of which the ancestor died seised as of fee, [and] is called the action quorum
[021] bonorum or the assise of mortdancestor.13 There is also a petitio possessoria on one's
[022] own possession, which is called the action unde vi [or] the assise of novel disseisin,
[023] by which his own possession is restored to the person despoiled.]

For whom actions arising ex maleficio lie and against whom.

[025] 14We must see for whom actions arising ex maleficio lie and against whom they lie.
[026] The actio furti or condictio is available to the owner of the thing against the thief
[027] and his successor and any holder of the stolen thing.15 The actio vi bonorum raptorum
[028] for movables taken away by force or robbed is given either to the owner of the
[029] things or him from whose custody they were taken, who is responsible for them to
[030] his lord so that he has an interest enabling him to sue.16 An action under the lex
[031] Aquilia17 for men feloniously killed or wounded is given to the nearer relatives, or
[032] to strangers bound by homage or service18 in such a way that they have an interest
[033] enabling them to sue.19


1. Br. and Azo, 177-9

2. As supra 287

3. Inst. 3.27. pr.; the portion on actions quasi ex contractu, supra 287, also from Inst. 3.27, belongs here

4. Supra 290, n. 17

5. Om: ‘Ex contractu ... dictum est’

6. Inst. 3.13.2; supra 284 ff.

7-8. D. 12.1.9. pr.

9. ‘causae,’ all MSS.

10. Supra 71

11. Belongs on 296

12. Br. and Azo, 178-9; Kantorowicz, 125

13. Supra 294, infra 296

14. Br. and Azo, 179, 182

15. Inst. 4.1.19. The English actio furti (P. and M., ii, 159-65, 494) is a condictio (cf. Kantorowicz, 103); infra 425-6

16. Infra 394, 398-9, 412-3; appeal of larceny: infra 426

17. A far-fetched parallel, but see J. M. Kelly in L.Q.R., lxxx, 77, nn. 17, 18

18. Glanvill, xiv, 3; P. and M., ii, 486, n. 3; infra 352, 407

19. Infra 399, 407

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