The cases in which the Will and its expression may differ CHAP. VIII. have been distinguished as follows1:

i. The difference may be intentional, resulting from (1) a mental reservation 2: (2) a use of words which would usually amount to a Juristic Act, with an obvious absence of an intention that they should have this effect, e. g. when legal phrases are used in jest, or on the stage, or in the lectureroom; or when phrases appropriate to a Juristic Act of one kind are employed notoriously with a view to the production of a Juristic Act of another kind, e. g. in the sale of an inheritance by 'mancipatio,' or in the proceedings which took place in a 'common recovery'; or, lastly, when several persons are agreed to put a meaning upon their act other than that which it would naturally bear ('simulatio'), when the rule of Roman law was 'plus valere quod agitur quam quod simulate concipitur 3.'

ii. The difference may be unintentional, i. e. it may be the result of essential mistake.

The prevalent theory would seem to be that a want of correspondence between the will and its expression is in every case, except when the result of a mental reservation, a ground of nullity. It can, however, hardly be disputed that all the other cases of intentional non-correspondence must, to be ground for nullity, be known, or knowable, to others. There is in fact here no non-correspondence; if we remember that expression consists not in the literal, or surface, meaning of words and deeds, but in the meaning which, under all the circumstances, other persons are justified in putting on those words and deeds. It would therefore

1 See e. g. Savigny, System, iii. p. 258; Windscheid, Pand. i. §§ 75-77

2 This case Savigny declines to consider, since it amounts to a lie, iii. p. 258, and Windscheid, Wille und Willenserklärung, p. 29, puts it aside as a case of fraud. The only authority for the nullity of a contract when there was a mental reservation seems to be the decision, against a marriage so contracted, in Decretal iv. 1. 26. 3 Cod. iv. 22.

In emptis et venditis potius id quod actum quam id quod dictum sit sequendum est.' Dig. xviii. 1. 1.

CHAP. VIII. seem that unintentional non-correspondence, i. e. such noncorrespondence as arises from mistake, can alone be represented as preventing the production of a Juristic Act. Whether even this can be conceded is open to doubt. There is something to be said for the view, maintained by a recent school of writers, that, in enumerating the requisites of a valid Juristic Act, we may leave out of account the inscrutable will, and look solely to what purports to be its 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."

Form.

Represen. tation.

The mode in which the will ought to be expressed for the 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.

Most, but not all, juristic acts may in modern times be

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, 1. 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 Savigny 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.'

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.

performed through a Representative. A representative whose CHAP. VIII. 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 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'.'

and two

acts.

Juristic Acts are distinguished into 'one-sided,' where the One-sided will of only one party is active, as in making a will, accepting sided an inheritance, or taking seisin ; and 'two-sided,' where there juristic 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.

istics of.

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

tialia.

The essentialia' of the act are the facts without which Essenit 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 Naturalia. to be part of the transaction in question, though the pre

sumption 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 Acciden case are not presumed and must therefore be proved.

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

talia.

CHAP. VIII.
Nullities.

Conditions.

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 1.' In exceptional cases the deficiency can be waived, or is cured by lapse of time. In certain other cases the act, though not ipso facto void, is 'voidable' at the option of a party concerned.

The 'naturalia' and 'accidentalia' can alone be varied by 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 2.'

6

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 Dig. 1. 17. 29.

2 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,