previous next


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.)


hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: