CAU´TIO
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).
[
J.B.M]
