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CAU´TIO has a variety of meanings, corresponding in the main with those of the verb from which it is formed, of which the following are the most prominent.

1. The giving of security for the future performance of a legal obligation. The value of such security varied with its form. First, it might be a merely personal undertaking by the party liable (nuda cautio, Dig. 5, 1, 2, 6; Cod. 63, 38, 3), which would be actionable in itself if clothed in the form of stipulation (stipulatio cautionalis, Dig. 46, 5, 1, pr.), though not if it were made simply by oath (cautio juratoria, Inst. 4.11, 2; Cod. 12, 1, 17, pr.): in Justinian's time the oath of persons of high rank seems to have been regarded as equally good security with an actionable promise given by others less exalted (Cod. 12, 22, 8). Secondly, the promise, though actionable perhaps in itself, might be fortified by the promisor's giving the promisee a right of pledge or hypotheca, or by the subsidiary liability of sureties: in these cases, as, on the person primarily liable failing, recourse might be had to the pledge or sureties, the cautio was said to be idonea. And from the act by which the security was given, cautio came also to mean the protection which it afforded; “plus cautionis in re est (i. e. when a thing is pledged) quam in persona” (Dig. 50, 17, 25).

Roman Law made a very extensive use of cautiones, especially those fortified by sureties (satisdatio) for the protection of legal rights which otherwise might have been brought into jeopardy. Thus the defendant in an action was frequently required to give security judicatum solvi, that the judgment, if it went against him, should be satisfied (Gaius, 4.91, 102), or “pro praede litis et vindiciarum,” that the property, the title to which was in question, should be delivered up if found to belong to the plaintiff; and if the plaintiff appeared in any action by an attorney or procurator, the latter had to bind himself with sureties “ratam rem dominum habiturum,” that his principal would be bound by his acts (Gaius, 4.98). Of much the same kind are the stipulationes judiciales de dolo and de persequendo servo, &c., mentioned by Justinian in Inst. 3.18, 1: unless they were entered into by the party from whom they were required, the judge might refuse to proceed with the action. Similarly the praetor and aedile often had occasion, in the discharge of their constitutional functions, to require persons to give security by means of a cautio (Inst. 3.18, 2). The “praetorian stipulations” are there exemplified by those damni infecti and legatorum. By the first the owner of land or houses threatened with damage from the defective condition of adjoining premises could demand security from the owner of or other persons having interests in the latter, and in default was entitled to be put in possession (Cic. Top. 4, 22; Dig. 39, 2, 7, pr.): the second was employed when a legacy was given under a condition or from a specified future day, or was disputed; the legatee being entitled to security with sureties for its future payment, or in default to be put in possession (Dig. 36, 4, 5, pr.). And the obligation of a vendor under Roman law to indemnify the purchaser in case his title proved defective originated (according to Theophilus) in the aedile's requiring all vendors to enter into a stipulatio dupli, i.e. to promise the purchaser twice the purchase-money if the property were recovered from him by some one having a better title (Dig. 21, 2, 60). Other illustrations may be found in the following:--Guardians and curators were as a rule required to give security “rem pupilli salvam fore,” that the property entrusted to them should not be squandered, misappropriated, or wrongly administered (Gaius, 1.199). Persons who had a usufruct (Dig. 7, 9) or right of usus over property had to bind themselves in the same way that it should be returned to the owner when their interest determined: analogous to this is the cautio in respect of quasi-usufruct referred to by Justinian in Inst. 2.4, 2. In many cases a heres could not safely pay legacies unless the legatee gave security to refund, in case the will under which he claimed should turn out to be bad (Dig. 5, 3,17). The cautio Muciana applied to the case of testamentary conditions, which consisted in not doing some act, which, if done, would deprive the heres of the hereditas, or the legatee of the legacy: the contingent right of the person who would take in the event of the condition being broken was secured in this manner. [p. 1.390]

The security was very commonly attested by a written instrument, which is itself called cautio or chirographum ( “cautio chirographi mei,” Cic. Fam. 7.1. 8), though the chirographa mentioned by Gaius (3.134) seem to be different: they were writings actually creating an obligation between peregrini, whereas the chirographum of a civis was merely evidence of a liability which arose on some other ground (Savigny, Verm. Schriften, i. p. 246). Hence--

2. The common use of cautio in the legal literature of the middle and later empire to denote a memorandum acknowledging an existing debt or liability (cautio pollicitationis, Dig. 4, 2, 9, 3; depositionis, Dig. 36, 3, 18, 1; dotalis, Dig. 31, 89, 5), especially acknowledgment of loans of money (Dig. 12, 1, 40, pr.; 44, 7, 29; Cod. 5, 14, 11; cf. Inst. 3.21). And by a slight change of meaning it comes to signify in other passages the acknowledgment of payment or performance, i. e. a receipt (Dig. 22, 3, 15; Cod. 9, 1, 2; Cic. Brut. 5, 18).

3. Very rarely cautio is used as equivalent simply to “contract,” agreement: “privatorum cautione legibus non esse refragandum” (Dig. 35, 2, 15, 1).


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