OBLIGATIONES
OBLIGATIONES
Obligatio is defined by Justinian
(
Inst. 3.13, pr.) as “juris vinculum, quo necessitate
adstringimur alicujus solvendae rei, secundum nostrae civitatis
jura:” a legal bond, with which we are bound by a necessity of
performing some act according to the laws of our state. It is thus a legal
relation between two ascertained persons, respectively debtor and creditor
(using these terms in a wide sense), in virtue of which the latter is
entitled to a certain act or forbearance from the former. Sometimes the term
is used to denote specifically the right creditor (e.g.
Inst.
3.28;
Dig. 45,
1,
126,
2, &c.) or the
duty of the debtor (e. g.
Dig. 12,
1,
6, &c.), and it occasionally
bears
[p. 2.255]other divergent but cognate meanings: but
its proper signification is that which has been stated. It differs from the
legal relations exemplified in ownership, servitudes, or possession, in that
it involves only what jurists call rights
in
personam: the person who owes the duty is specific and ascertained
from the outset, whereas the duty owed to the owner of property, not to
interfere with his proprietary rights, is incumbent not on any particular
person, but on persons generally: and this contrast is well put by Paulus in
Dig. 44,
7,
3, pr.: “Obligationum substantia non in eo
consistit, ut aliquod corpus nostrum, aut servitutem nostram faciat, sed
ut alium nobis obstringat ad dandum aliquid, vel faciendum, vel
praestandum.” According to the Roman view, the relation between
the two parties is strictly personal: the right is the creditor's, and the
duty is the debtor's only: neither: debtor nor creditor can be really
changed without destroying the existence of the obligation itself: or, as
has been said, “The personal relation in an obligatio, according to
the Romans, is so essential, that its active or passive
transfer--assignment of the right, assumption of the liability by
another--cannot in any way be directly effected.”
The result of an obligatio is the partial subjection (in law) of one person's
will to another, the debtor's freedom of action being partially limited in
favour of the creditor: “debitor intelligitur is, a quo invito pecunia
exigi potest” (
Dig. 50,
16,
108). But even this
must not be taken to imply that the creditor can in all cases enforce his
right by action at law. In the earlier period of the Roman legal system it
was otherwise: obligation and actionability went hand in hand; unless there
was an action, the obligation had no legal existence. But when the ideas of
equity and the
jus gentium began to gain
ground, the praetor came to recognise other legal incidents to an obligatio
than actionability, and would allow the creditor's right to be enforced or
realised in other ways. Hence the distinction of obligations into
naturales and
civiles:
a civil obligation is one enforceable by action; a natural obligation is one
which, though not actionable, possesses all the other legal properties of
obligationes in general. For instance, though the debtor could not be made
to pay, yet if he paid voluntarily, even by mistake, he could not recover
the money back on the ground that it was not due (
Dig.
46,
1,
16,
4). So, too, a debt “naturally” owed
could be set-off against an actionable claim of the debtor against the
creditor (Dig. ib. 26), and it could form a sufficient basis for a pledge, a
guarantee, or a novation (of which something will be said below). The causes
which made obligations natural instead of civil are mainly two:
insufficiency of form in contracts, and defective capacity of legal right or
legal action in a party. As regards the first, agreements according to Roman
law were actionable only if they were expressed in a definite form, or else
belonged to one or other of certain specially favoured classes; otherwise
they were called
nuda pacta; no action would
lie on them, but yet the promisee might get and retain what was due to him
in other ways. As regards the second, there were certain classes of persons
between whom there could be no civil obligation. A slave could not be bound
civiliter to any one, but was capable of
natural obligation, and similarly no one could be bound
civiliter to a slave. So, too, between pater-and filius-familias
there could be natural obligation only. Lastly,
civilis obligatio sometimes became
naturalis by operation of law: e. g. through the rules as to
limitation of actions, or capitis deminutio (
Dig. 4,
5,
2,
2).
Another division of obligations is based upon the character of the
legislative organ (so to speak) to which they respectively owe their
validity. When that organ was the mouthpiece of the civil law (
e.q. the comitia, emperor, or custom), the obligatio
was said to be
civills (in another sense): when it
was the praetor or some other magistrate, it was said to be
honoraria or praetoria. And sometimes obligations
are classified in a manner more proper to the actions which lie upon them,
as either
stricti juris or
bonae fidei. Personal actions of the
CONDICTIO class were
stricti juris, others were
bonae
fidei; and these terms were transferred to the obligations
which they were brought to enforce. Hence the contracts which were ascribed
to the
jus gentium (with the exception of
mutuum) are sometimes said to create
bonae fidei obligations; e. g. sale, hire,
agency, pledge, deposit, and others.
Finally, modern writers usually divide obligations into
unilateral and
bilateral. An obligation is
unilateral when only one of the parties is bound, as where A lends B five
pounds: the latter alone owes anything. It is bilateral where duties exist
on both sides, as in a contract of sale, where the vendor has to convey the
thing sold, and the vendee has to pay the price. But, strictly speaking,
every obligation is unilateral, for a person cannot play two different
rôles in the same legal relation: so that
the so-called bilateral obligations are in reality two separate obligations
regarded as one by reason of the identity of their origin:
The “object” of an obligation is always either an act or a
forbearance; the person bound has to do or not to do. If A agrees to sell B
a horse, B has in law no right to the horse (for in that case his right
would be
in rem, not
in
personam); all he has a right to is a conveyance from A, which
is an act. Of the possible objects of an obligation, in this sense, the
Romans have no scientific classification; the nearest approach to one is
that suggested in the passage of Paulus cited above into
dationes, factiones, and
praestationes. But this originated in the technicalities of
pleading under the formulary system, and in the finished law of Justinian is
merely a worthless survival of an older and obsolete procedure. But whatever
the act or forbearance may be which is owed under an obligation, it is
subject to three rules. It must have an appreciable money value in relation
to the creditor: “ea enim in obligatione consistere, quae pecunia lui
praestarique possunt” (
Dig. 40,
7,
9,
2): though whether this rule was in force under Justinian has been
denied by modern writers (e. g. Windscheid,
Lehrbuch,
§ 251, note 3; Ihering,
Jahrbuch für
Dogmatik, xviii. pp. 34--115). It must be lawful, and further
possible both in nature and in law: and thirdly it must be, or be capable of
being rendered, sufficiently definite; e. g. one cannot
[p. 2.256]be bound to do just as much as and no more than one pleases
(
Dig. 45,
1,
108,
1).
Viewed with reference to the facts on which the law operated so as to give
them binding force, obligations arose, according to the Institutes of Gaius,
from Contract and Delict: to these he adds in the third book of his Aurei
(
Dig. 44,
7,
5) “variae causarum figurae,” a source
which in Justinian's Institutes is represented by the more intelligible
heads of quasicontract and quasi-delict. Justinian's enumeration of the
sources of obligations, though hardly exhaustive and not scientifically
adequate, is more satisfactory than the classification of Modestinus, who in
Dig. 44,
7,
52 says that obligations arise from
res, verba, consensus, lex, jus honorarium,
necessitas, and
peccatum. To make
Justinian's statement at all a good one, the term
contractus must be taken to include all agreements, for every
agreement, if Savigny is correct, gave rise to at least a
“natural” obligation, though by Justinian himself it is used to
denote only certain agreements which, owing to their form or nature, were
actionable under the civil law. The general Roman terms signifying
“agreement” are
conventio, pactio,
pactum:
“et est pactio duorum pluriumve in idem placitum consensus”
(
Dig. 2,
14,
1,
2). The essential element
here is the consent of two (or more) wills, but this was not enough, in the
Roman view, to make a
contractus, a term
differentiated from
pactum by the circumstance
that to certain agreements (
pacta) a
“civil” obligation was annexed by the older law in virtue
either of their nature, or of their being attended by some other fact
besides the mere fact of agreement. An unaccepted promise, or promise
without agreement (
pollicitatio), gave rise to
an obligation only in certain cases when made to a municipal corporation
(
Dig. 50,
12,
3, pr.), and where vows were made to the Deity or
pagan gods (Dig. ib. 2, pr. and 1). Actionable
pacta are called by modern writers
pacta
vestita: they include, firstly, the contracts recognised by
the older law:--
NEXUM (which is
not treated by Gaius or Justinian), and the contracts made
verbis and
litteris, re
and
consensu: and, secondly, certain agreements
which were made actionable at different times by the edict or imperial
legislation (
pacta praetoria and
legitima). Agreements on which no action lay were
termed by the Romans
pacta nuda:
“nuda pactio obligationem non parit, sed parit exceptionem”
(
Dig. 2,
14,
7,
4): i. e. they could be
relied upon in defence, e. g. for purposes of set-off, and according to
Savigny possessed all the incidents of
naturalis
obligatio, but could not be sued upon: “ex nudo pacto
inter cives Romanos actio non nascitur” (Paul.
Sent.
rec. 2.14, 1).
Perhaps the oldest of the Roman contracts was
NEXUM to the article on which reference may be made.
But there were two other very old formal contracts which had a longer
history, and of which we have far fuller knowledge, viz. Stipulatio and
Expensilatio or literal contract. The first is by Gaius and Justinian
identified with the obligation made
verbis,
which is usually taken to comprise two other far less important formal
promises:
dotis dictio (Ulpian,
Reg. 6, 2; Cic.
pro Flacco, 35,
86;
pro Caec. 25, 72; Terence,
Andr. 5.4, 47:
see Dos) and
jurata promissio liberti (
Dig. 38,
1,
7: see
LIBERTUS).
Stipulatio was a form of contract which gave rise only to a unilateral
obligation, the promiser binding himself to the
stipulator or promisee by returning an oral affirmative
answer to the oral question of the latter (
Cic.
pro Caec. 3, 7). Originally the only terms
which could be used were
spondes? spondeo
(Plaut.
Capt. 4.2, 117), and the strictest correspondence
between question and answer was insisted upon: moreover in this form no one
could contract except Roman citizens, so that
peregrini could not avail themselves at first of stipulation at
all (Gaius, 3.93, 179). Later, other words became sanctioned by usage: e.g.
pronittis? promitto, dabis? facies? &c.
(Gaius, 3.93;
Inst. 3.15, 1), by employment of which the form
was made accessible to aliens. and in Gaius' time Greek equivalents were
permitted. Similarly, by degrees the requirement of strict and literal
correspondence between question and answer was dispensed with, and, owing to
a constitution of Leo, A.D. 469 (Cod. 8, 38, 10;
Inst. l.c.),
the law allowed in Justinian's age the use of any terms and any language
whatever, provided the parties understood one another: by which time, too,
it had been discovered to be so inconvenient that the proceedings must be
oral, and so necessitated the presence of the parties, that the original
solemnities of stipulation had in most cases dwindled down to a written
memorandum of a promise fictitiously represented as having been made in
answer to a preceding question (
cautio), upon
which an action would successfully lie unless the defendant chose
dishonestly to rely upon the defence that the contract had not been made
(as, strictly speaking, the law required) by oral question and answer
(
Inst. 3.19, 17 and 12). The value of such
cautiones was merely evidentiary: oral stipulations
were probably always made in the presence of witnesses (
Cic. pro Rosc. Com. 5, 13),
which, however, were not prescribed by law, as in the case of mancipations
and nexum.
Stipulation is not so much a peculiar species of contract as a universal
contract form: a form in which any agreement whatever could be concluded,
and into which many were thrown, even though actionable in themselves (e. g.
sales), on account of the superiority of the remedy (
condictio) that would then be enforced. Justiuian
(
Inst. 4.15, 7) recommends that whenever the object of a
stipulation is other than the payment of a sum of money, it should be
expressed in the form of a condition to a bond: e. g. “If you do not
do so and so for me, do you promise me so much?” The advantages
secured by this were that the promisee, if the condition was not fulfilled,
was not under any necessity of proving what loss he had suffered
(
Inst. l.c.), which perhaps would have given him very
inadequate damages ( “et ad exiguam summam deducitur,”
Dig. 46,
5,
11), and that the ground of action was not a promise
to do, but a promise to pay, so that until Justinian's time the plaintiff
recovered more than the sum actually due by means of the penal wager
involved in
condictio certi [see PER CONDICTIONEM ACTIO].
Various grounds are stated by Gaius (3.97-109) and Justinian
(
Inst. 3.19) on which stipulations were void (
inutiles), some of which,
[p. 2.257]however, affect all contracts, and not stipulation only. Among the latter
are impossibility of performance (Gaius, 3.97;
Inst. 3.19, 1
and 2), impossible conditions (Gaius, 3.98;
Inst. ib. 11),
and the elementary principle of law that a contract can confer rights and
impose duties only on those who are parties to it (Gaius, 3.103;
Inst. ib. 3, 4, 19-21). To stipulation alone relate the
rules as to the correspondence of question and answer (Gaius, 3.102;
Inst. ib. 5), to the incapacity of deaf or dumb persons
to be parties (Gaius, 3.105;
Inst. ib. 7), and to the
necessity of the parties being simultaneously present with one another
(Gaius, 3.138;
Inst. ib. 12). Something also is said upon the
contractual capacity of
pupilli and.
infantes, as to which see
IMPUBES and
INFANS
It was not unusual for the promise to be made on the stipulator's behalf to a
second promisee as well as to himself, who was called the
adstipulator, and was a kind of trustee for the real
creditor. He could accept and even sue for performance of the promise
(Gaius, 3.111), but could be compelled by
actio
mandati to deliver up to his principal or the latter's heir
anything which thereby came into his hands, and was liable to a penal
procedure under the Lex Aquilia (Gaius, 3.215) if he fraudulently released
the promiser. Some peculiar rules as to adstipulatio are noticed by Gaius
(3.114). Its object was to facilitate representation of the promisee by an
agent in an action at a time when attorneys were not generally allowed for
that purpose, and to enable a promise to be validly made of performance to a
person after his death, which otherwise could not have been done till the
time of Justinian (Gaius, 3.100;
Inst. 3.19, 13). In the
latter's legislation adstipulatio disappears, both of the purposes which it
had served being directly attainable.
Stipulation was also perhaps the commonest mode in which the contract of
suretyship was made. [See
INTERCESSIO]
For Expensilatio, or literal contract, see the article on
OBLIGATIO
LITTERARUM The “real” contracts, those in which the
obligation is generated
re, i.e. by delivery of
property or possession, are four in number, viz. two varieties of loan,
MUTUUM and
COMMODATUM Deposit [
DEPOSITUM] and Pledge [
PIGNUS]. Both Gaius and Justinian
also speak of the duty of a man to repay money paid to him in the mistaken
belief that he could legally claim it as “real,” though (Gaius,
3.91;
Inst. 3.14, 1) they hesitate to attribute to it a
contractual character, and later in the Institutes (3.27, 6) Justinian
enumerates it among quasi-contractual obligations.
The Consensual Contracts, agreements on which an action lay in virtue of the
mere consent of the parties (Gaius, 3.136;
Inst. 3.22), apart
from all form, are sale [
EMPTIO VENDITIO], hire [
LOCATIO CONDUCTIO], partnership [
SOCIETAS], and agency [
MANDATUM]. With regard to the
last, it should be observed that where an agent made a contract on behalf of
his principal, the Roman law never allowed the latter to sue directly on it;
but only as the assignee of his own agent (
Dig. 3,
3,
68;
41,
2,
49,
2). The only exception to this was where
the agent was the principal's filiusfamilias; and this was due to the rule
that, as persons in potestas are incapable of proprietary rights, rights
acquired by them
ex contract 3 vest immediately in
their dominus or paterfamilias. The dominus could not sue on contracts made
by his slave, for they gave rise to
natzralis
obligatio only, but he was entitled to any advantage otherwise
derivable from them; on those made by his son in power the paterfamilias had
an action: the modifications of this principle by the development of the
doctrine of
peculium are described under
PATRIA POTESTAS Manus
and Mancipium were also conditions which vested in the superior the benefit
arising from contracts made by the inferior: see Gaius, 3.163-167, and
Inst. iii. titles 17 and 28.
Among the agreements which were actionable without being termed
contractus by the Romans, the first place is to be
given to the so-called Innominate Contracts, which were a development of the
principle--in reality part-performance--involved in the obligations arising
re. The simple reason why the borrower in a
Mutuum (e. g.) or the pledgee in a Pignus was bound by a civil obligation
was that the other party had first done all he had engaged to do. Apparently
owing to the influence of the jurist Labeo, a more general application of
this principle shortly after the fall of the Republic gave a great extension
to the Roman contract system; and by a gradual development it was at length
held that every agreement (even though not belonging to any of the hitherto
established classes of contract), in which an act on the one side was the
consideration for an act on the other, was enforceable by action at the suit
of that party who had done all to which he was bound under its terms (
Dig. 2,
14,
7,
2). Such agreements are by modern
writers termed Innominate Contracts because they have no specific names,
such as Sale, Pledge, &c.; their characteristic marks are mutuality
and part-performance: until one of the parties has done what he has engaged
to do, no action lies, whereby they are clearly distinguished from the
contracts which are actionable in virtue of the mere fact of agreement
(
Dig. 19,
4,
1,
2). By Paulus they are
roughly classified according to the possible acts which might be the
consideration for one another respectively ( “ant enim do tibi ut des,
aut do ut facias, aut facio ut des, ant facio ut facias,”
Dig. 19,
5,
5, pr.): but the most usual clue to them is the
mention of the actio (
civilis in factum, or
praescriptis verbis) by which the party who
had performed could exact counterperformance performance or recover damages
from the other (e.g.
Inst. 3.24, 1 and 2). If the
part-performance performance had consisted in conveyance of property
(
dare), the plaintiff might, as alternative
to the
actio praescriptis verbis, redemand what
he had conveyed by the older remedy known as “condictio causa data
causa non secuta” (
Dig. 12,
14,
3,
2). The commonest examples of Innominate Contract are exchange
(
Permutatio, Inst. 3.23, 2);
Aestimzatum, the acceptance of property valued at a
certain maximum under the condition of either returning it or paying the
price at which it is valued (
Dig. 19,
13,
1, pr.);
Transactio, or compromise (
Dig.
2,
15; Cod. 2, 4); and
Precarium, or permissive occupancy (
Dig.
43,
26,
19,
2). But the practical value of the
actio praescriptis verbis is
[p. 2.258]best
realised in cases which cannot certainly be regarded as within the principle
of any named (i. e. Real or Consensual) Contract, and in which the jurists
say, “
tutius esse, praescriptis verbis
agere” (
Dig. 19,
3,
1, pr.; 4, 3, 9, 3, &c.). This
extension was apparently due to juristic action. Other agreements, as has
been observed above, were made actionable by the praetor or by the emperor.
The chief
pacta praetoria are Constitutum [
INTERCESSIO], Hypotheca
[
PIGNUS]; Receptum arbitrii,
the agreement to refer a dispute to arbitration (
Dig.
4,
8); and Receptum nautarum, cauponum,
&c., the obligation (
quasi ex contractu
rather than contractual) of innkeepers, shipowners, and others in similar
positions, to be answerable for the safe custody and restitution of property
put under their charge and control (
Dig. 4,
9,
1, pr., &c.). Of
the
pacta legitima first made actionable by the
emperors, the chief example is DONATIO: compare
also the legislation of Zeno on the subject of
EMPHYTEUSIS It is also usual to enumerate among
pacta vestita What civilians call
pacta adjecta: subsidiary conventions annexed to an
agreement remedied by
bonae fidei action, and
themselves enforceable by that action if entered into substantially as part
of and at the same time with the main agreement (
ex
continenti), even though expressed in the guise of a
condition. For instance, if A agreed to buy B‘s house on condition
that the latter put it in repair, this condition would itself be construed
as a promise; and an action would lie for its breach, the contract being
consensual: had the transaction been Stipulatio or Mutuum (on which the
action was
stricti juris), it would have been
otherwise (
Dig. 2,
14,
7,
5; ib. 7; 19, 1, 13,
30; 19, 5, 6; 18, 1, 75).
Obligationes arising
quasi ex contractu are
illustrated in the Institutes (3.27) and in
Dig.
44,
7,
5 by
Negotiorum gestio [
NEGOTIORUM GESTORUM ACTIO], the relation of guardian and ward
[CURATOR, TUTOR], joint-ownership arising from
gift, inheritance or legacy, &c. In all these cases the party or
parties are bound by an obligation, though not under any express agreement;
but the circumstances being more analogous to Contract than to Delict, the
obligation is said to be quasi-contractual.
Obligationes arising from Delict denote the
vinculum
juris which the law creates in certain cases of wrong-doing
between the injured person and the delinquent. As soon as a
“delict,” in the Roman sense, is committed, the wrong-doer is
“bound” to the man he has wronged, to pay him a penalty;
and where the act is one which causes loss of or damage to property, he is
also bound to indemnify the person on whom such loss or damage falls. Such
delicts are four in number, viz. Theft [
FURTUM], Robbery [BONA VI
RAPTA or
RAPINA], Damage to
property [
DAMNUM INJURIA
DATUM], and Assault, Libel, Slander, &c. [
INJURIA]. Quasi-delictual
obligations are illustrated in the Institutes (4.5) by instances of two
kinds: cases of vicarious responsibility, imposed on a man because he
employs careless or dishonest servants (e.g.
Inst. 4.5, 3),
or because it may be difficult to ascertain the real offender (ib. 1 and 2),
and wrongs which result directly from a man's own
cutpa or
dolus, but which do not come
under the definition of any of the four delicts proper (ib. pr.).
Hitherto obligations have been spoken of as existing between two parties
only: but to the same obligation there may possibly be two or more debtors,
or two or more creditors, all of whom are comprehended under the general
name of
rei (
Cic.
de Orat. 2.43, 183). Two distinct forms of such plurality of
parties are found in the Roman law, called by modern writers Solidarity and
Correality. Solidarity is mainly passive: one creditor is entitled against
two or more debtors by different obligations; but these obligations, though
different from one another, have one and the same act or forbearance as
their object: so that when that object is once attained by the performance
of one of them, all the rest, having no longer any object, cease
ipso facto to exist. For instance, where two persons
jointly commit a delict--e. g. break a man's windows--the obligation to make
compensation (though not that to pay the penalty prescribed by law) is of
this nature: as soon as one has paid for mending the windows, the other's
liability is at an end (
Dig. 2,
10,
1,
4;
4,
2,
14,
15, &c.). Other examples of
solidary obligation are found in the liability of co-tutors for
dolus and
culpa in the
discharge of their duties (
Dig. 16,
3,
1,
43), and in those cases where two or more persons jointly incur
duties
ex contractu without becoming
correi (e.g.
Dig. 17,
1,
60,
2;
16,
3,
1,
43;
13,
6,
5,
13). Correality resembles Solidarity in the identity
of the obligation-object which is owed to one creditor by several debtors,
or by one debtor to several creditors; but it differs in that there is also
but one obligation: there is but, one single
vinculum
juris by which the debtor and the creditors, or the creditors
and the debtor, are bound to one another; so that any act or event which
extinguishes that single obligation between the creditor and one of the
debtors, or between the debtor and one of the creditors, puts an end to it
between them all. Correal obligation arose most commonly from contract,
usually stipulation in the form described in
Inst. 3.16, pr.:
but it could also be created in a testament, by the testator charging a
bequest on one or other of his heirs in the alternative (
Dig. 30,
8,
1),
and similarly in a banking partnership the
socii were liable
correaliter on all
their business transactions, whether entered into by one or all of them
(
Dig. 2,
14,
9, pr.).
Of the modes in which obligations could be extinguished (which extinction is
commonly expressed by
solvere in the general
sense of loosing or releasing,
Dig. 42,
1,
4,
7;
50,
16,
47; ib. 176), the first to be noticed is performance
( “solutio
stricto sensu” ). So
far as the release of the debtor was concerned, it was immaterial from whom
performance proceeded--whether from himself or from some third person
(Gaius, 3.168). Whether he was equally discharged by what is called
datio in solutum, the acceptance by the creditor of
something other than what was really owed in lieu of it, had been disputed
between the two schools of jurists: the Sabinians, whose view was eventually
confirmed by Justinian (
Inst. 3.29, pr.), answered in the
affirmative, while the Proculians held that in law the debtor remained
bound, though if sued he could successfully meet the creditor's
[p. 2.259]action by the plea of fraud (
exceptio doli mali). Secondly, certain obligations could be
properly discharged only by an “imaginaria solutio per aes et
libram” (Gaius, 3.173-175): for these reference may be made to the
article on
NEXUM A third mode of
extinction was Acceptilatio, a formal release from an obligation incurred by
stipulation only (Terence,
Adelph. 2.1, 10), and expressed in
a solemn corresponding form of question and answer--“Quod ego tibi
promisi habesne acceptum? Habeo: consentaneum enim visum est,”
says Gaius (3.170), “verbis factam obligationem posse aliis verbis
dissolvi.” But though Acceptilatio was specialised to the
discharge of obligations created
verbis, a
liability incurred in any other way whatsoever could be transformed by
Novatio (of which below) into a verbal obligation, and then released in this
manner (Gaius, 3.170;
Inst. 3.29, 1): and the jurist Gallus
Aquilius devised a comprehensive formula, called the Stipulatio Aquiliana
(
Inst. ib. 2), by which all obligations in which one and
the same person was debtor, and another and the same creditor, could be
embraced in a single
novatio, whereby they were
converted into a single obligation, which could then, if required, be
discharged by Acceptilatio: “Quidquid tibi hodierno die per Aquilianam
stipulationem spopondi, id omne habesne acceptum? Habeo, acceptumque
tuli” (
Inst. 3.29, 2, after Florentinus in
Dig. 46,
4,
18, pi. and 1). Novation, which has already been more than once
referred to, is the extinction of one obligation by the substitution for it
of another (
Dig. 46,
2,
1, pr.). Originally this could be effected in
two ways: by Transcriptio (Gaius, 3.128-130: see
OBLIGATIO
LITTERARUM) and Stipulation: but the former had gone out of use long
before Justinian's time, and perhaps even as early as that of Gaius. The end
in view in a Novation was sometimes to change one of the parties to a
subsisting obligation, as where A stipulates from B for payment to him of a
debt due to himself from C (change of debtor), or where C (with
B‘s consent) stipulates from A for payment to himself of a debt
owed by A to B (change of creditor): but more commonly perhaps it was to
alter the nature of a subsisting liability by converting a real or
consensual into a verbal obligation (so as to substitute a
stricti juris for a
bonae
fidei action), or by modifying its terms. It was immaterial
whether the obligation “novated” was
civilis or
naturalis, and the
obligation created by the “novating” contract would extinguish
the old one even though itself
naturalis only
(Gaius, 3.176;
Inst. 3.29, 3). Whether an absolute obligation
was extinguished at once by a conditional novating stipulation was at one
time a question: the great jurist Servius Sulpicius had held that extinction
ensued even though the condition of the novating contract was never
fulfilled, but Justinian confirmed the view up-held by Gaius (3.179), that
the old obligation subsisted until the condition of the new one was
fulfilled, but that if the creditor sued upon it before such fulfilment he
could be repelled by
exceptio doli or
pacti (
Dig. 23,
3,
50;
Inst.
3.29, 3). He also enacted that in order to effect a novation the parties to
the contract must expressly state this as their intention.
Gaius (4.108) tells us that under the old procedure by
legis actio no second action could ever be brought on the
same ground, so that obligations were extinguished by being sued upon: and
also (3.180) that under the formulary system of procedure the same result
ensued from
litis contestatio or joinder of issue,
if the action belonged to the class of Judicia legitima:
litis contestatio thus having a quasinovative effect, and
substituting for the original obligation a new liability on the defendant to
be condemned if the plaintiff proved his case (Gaius, 3.181); though
according to
Dig. 12,
6,
60, the old obligation was not really
destroyed, but continued to exist
naturaliter.
The judicia which were not
legitima litis
contestatio did not destroy the obligation, but if the plaintiff sued
on it a second time he could be defeated by
exceptio rei
in judicium deductae or
rei
judicatae (Gaius, 4.106). When the formulary system was superseded
(A.D. 294),
litis contestatio ceased to have this
operation in any case, though if the action had been decided on its merits
the
exceptio rei judicatae was as powerful to
repel a second suit as before (
Inst. 4.13, 5). [See the
article on
LITIS
CONTESTATIO] Justinian also observes (
Inst. 4.29,
4) that the obligation of a consensual contract could be extinguished by
contraria voluntas, i.e. by the parties
agreeing to be off their bargain, provided neither had done anything in
execution of his side of it (
re integra): such
an agreement, when the
res was no longer
integra, had not the same effect, but
operated as a new contract, which bound the party in whose favour
performance had taken place to restore the other
in
statum quo, but which was unable to affect injuriously rights
acquired under the original agreement by third persons (
Dig. 2,
14,
58).
There were other modes in which obligations were discharged, and of which no
mention is made in the Institutional works of Gaius and Justinian: e. g.
physical impossibility of performance arising
ex post
facto without default of the debtor (
Dig.
46,
3,
92): in some
cases
CONFUSIO (Dig. ib. 95,
2); and sometimes death of one of the parties to a contract, as in societas
(
Inst. 3.25, 5) and mandatum (ib. 26, 10). The obligation
to pay a penalty on a delict was also destroyed by the delinquent's decease,
and those involved in the
actiones furti and
injuriarum were dissolved
ipso jure by “pactum de non petendo” or
agreement not to sue (
Dig. 2,
14,
17,
1).
A few words are necessary on the transfer
inter
vivos of the rights and liabilities in an obligation. The latter
could in no way be transferred without the creditor's assent, and then only
by means of a novatio, the old obligation being destroyed, and a new one
with different parties taking its place. Similarly the creditor's right
could be transferred, with the debtor's co-operation, by substituted
agreement; but without such novation he had no means of assigning his right
so as to enable the assignee to sue in his own name, or indeed to sue at all
till the introduction of the formulary procedure. After this the assignee
could bring his action as the assignee's agent and in the latter's name
(Gaius, 2.39; 4.86), but subsequently he was enabled to sue in his own name
by
actio utilis (
Dig.
3,
3,
55;--Cod. 4,
15, ult.; 6, 37, 18). The Roman law, however, apparently never recognised a
genuine assignment of rights
in
[p. 2.260]personam, by which
the assignee simply and actually stepped into the shoes of his assignor, who
simultaneously dropped altogether out of the matter.
(Gaius, 3.88-225;
Inst. 3.13-4.5;
Dig.
2,
14;
44,
7;--Cod. 4, 10; Savigny,
Obligationenrecht; Unterholzner,
Quellenmässige Zusamenstellung der Lehre des
römischen Rechts von den Schuldverhältnissen,
Leipzig, 1840. Reference may also be made to the part on Obligations in the
works of the leading modern civilians, such as Vangerow, Windscheid,
Ortolan, Thibaut, Arndts, Baron, Puchta, and to Dr. Bruns' article on the
modern Roman law in Holzendorff's
Encyclopädie (4th
edit.), pp. 458-509. Compare also for some points only slightly touched on
in this article Excursus v., vii., viii. and ix. in Mr. Moyle's edition of
the Institutes of Justinian.)
[
J.B.M]