BOOK CHAPTER IV. Of Obligations in general. AN Obligation is a bond of law or equity, and sometimes of both, by which a person is laid under Obligation, a necessity to give or to do something: it is thus defined by Justinian. Definition. Obligatio est juris vinculum quo necessitate astringimur alicujus rei solvendæ secundum nostræ civitatis jura'. It has already been observed that right and obligation are reciprocal; the obligation on one side involves the Jus ad rem, on the other, whereby the creditor can sue the debtor. Obligations are threefold: 1. Natural. 3. Mixed. Natural. 2. Civil. A natural obligation is that which is not recognized by the Civil Law. Quibus natura debeatur, ii non sunt loco creditorum3, and therefore such have a remedy only in equity. Natural obligations are perfect, and imperfect. A perfect natural obligation is that whereof the performance may be compelled in equity. Ait Prætor pacta conventa, quæ neque dolo malo neque adversus leges facta sunt, servabo. All such therefore were perfect natural obligations, the performance of which could be compelled by application to the Prætor. A natural obligation, strictly speaking, is only another term for a moral obligation, which has no legal validity until it be recognized by the civil law; the transactions therefore which did not come within the recognized contracts of the Roman law, to which specific actions were assigned for enforcing IV. redress to those who were injured, soon received CHAP. the support of the Prætor through his equitable jurisdiction, provided they were not tainted with dolus malus, and were not pacta conventa adversus leges; but it is difficult to mark the exact confines between a perfect natural obligation which might be enforced only in equity, and that to which the jus civile assigns a remedy by an actio in factum, or præscriptis verbis. The Prætor's authority was more frequently exerted in affording a valid defence to those who were sued upon a nudum pactum, than in enforcing a natural obligation. We may assume that all innominate contracts were originally enforced by the Prætor before the legal remedy by the actio in factum, or præscriptis verbis, was established; and whenever any obligations arose which were not within the verge of the law, the Prætor enforced them on the grounds of equity, if they came within the verge of his album'. The case of pecunia constituta will afford an ex- Perfect. ample. This was where the debtor covenanted to pay money due, but without writing, or the solemn form of stipulation, and therefore it did not come within any recognized contract; but the Prætor enforced it naturali ratione, quoniam grave est fidem fallere: and Ulpian adds, et mulieres de constituta tenentur SI NON INTERCESSERINT2. Here Imperfect. the Prætor's hands were tied, because women were forbidden by the Sctum Velleianum3 to become sureties; and they and their heredes could claim an exceptio whereby, if they were sued on such an undertaking, the plaintiff would be nonsuited, summotus. A civil obligation is that which is recog- Civil. nized and enforced by the civil law. A mixed Mixed. obligation was that in which the parties were bound both in law and equity, as in all innominate contracts, where a remedy might be had by the actio præscriptis verbis, or by the edict of the Prætor. Óbligations might arise from a lawful, or an unlawful 1 D. II. 14. I. 2 D. XIII. 5. I. 3 D. XVI. 6. 1. 2. III. How created. BOOK act: the former were called contractus, the latter delicta. When the agreement in a contract was not expressed, but presumed, it was called quasi contractus; and when an unlawful act was committed through negligence, and not ill design, it Four kinds. was called quasi delictum1 Obligations therefore are classed under four heads: 1. Ex contractu. 2. Quasi ex contractu. 3. Ex delicto. 4. Quasi ex delicto. Definition tract. A contract is an agreement, upon sufficient of a Con- consideration, to do, or not to do, a particular thing; with an obligation, at least on one side, and an action to enforce the performance. Contractus sunt conventiones quæ habent nomen et causam præsentem sua natura civiliter obligantem2. Conventio. Pacta. Nudum. Legitimum. Conventio, vel pactio, est duorum pluriumve in idem placitum consensus3. Pacts and contracts, says Dr Hallifax, were different from each other; but there is no essential difference between them; a pact is a contract, but the Roman Jurists called those agreements pacts to which no civil action eo nomine was attached, and contracts those to which a special action was assigned to enforce the performance. A pact, unless it were a nudum pactum, could be enforced either in law or equity. Pacta were, 1. Nuda. 2. Legitima. 3. Adjecta. Nudum pactum was that which was sine causa, without any consideration, and therefore no action would lie; hence the universal maxim ex nudo pacto non oritur actio. Dabo ut des was a nudum pactum; but do ut des, if accompanied by the absolute delivery and acceptance of the thing, was a pact which could be enforced; the causa præsens immediately arose civiliter obligans, and the donee would be obliged to perform his part by an action bona fidei. Pactum legitimum was that which the law enforced, although, on the face of it, it was a nudum 1 See post ch. 2 D. II. 14. 7. I. 3 D. II. 14. 2. IV. pactum. Several instances might be given, one CHAP. will serve as an example: the mere promise to pay the dos, though unaccompanied by any writing or stipulation, could be enforced, marriage being a sufficient consideration1. Pactum adjectum was a collateral pact attached Adjectum. to some contract, and so in fact formed a part of the contract in question; as in the case of the emancipation of the filius familias, the father at the third sale added the pactum fiducia, which was thus said to be adjectum". Pactum Prætorium Prætohas already been explained as that which the Præ- rium. tor enforces on the ground of equity. and stricti Contracts were either stricti juris, or bona fidei. Bona fidei In the contract stricti juris the plaintiff had judg-uri. ment for so much, and no more, than he was entitled to by the express words of the contract. For example, if the plaintiff brought his action to recover centum aurei, which he alleged were due on a stipulation, he was strictly confined to his proof, and he had centum aurei, or nothing; but in the contract bona fidei he had judgment for that which was not expressly agreed upon, provided it was incident and common to the contracts of the description in question, e.g. buying and selling, and letting and hiring, and many others in which full power was given to the judge to determine according to the rules of justice and equity how much the plaintiff was entitled to recover, because in contracts of this kind an adjustment of the respective claims of the parties was allowed. In estimating the damage occasioned by either of the parties to a contract it was considered whether such damage was owing to dolus, or culpa, or casus fortuitus. Damnum, or damage, is the loss Damnum. which is occasioned to one of two contracting parties by the fault of the other; and might arise by design, by negligence, or by accident. Under the head of dolus, or design, is included Dolus. Culpa. BOOK every thing which comes within the verge of fraud: III. it is omnis calliditas, fallacia, machinatio ad circumveniendum, fallendum, decipiendum alterum adhibita'. Every one is liable for dolus without exception; and in interpreting dolus the intent must be regarded. Culpa, or negligence, is omne factum inconsultum, every inconsiderate act, which includes acts of omission as well as commission whereby another is injured; and Paulus defines it as quod cum a diligente provideri poterit non est provisum2. The Roman Jurists arranged culpa under three heads: lata, levis, and levissima, representing the liabilities of persons according to the circumstances of each particular case. Lata. Levis. Lata culpa was said to be committed by those who neglected to use such diligence and care as all persons, etiam dissoluti, of common sense, however inattentive, are accustomed to show in the management of their affairs. Levis culpa was the omission of such care and diligence as every man of common Levissima, prudence takes of his own concerns. Levissima culpa was the neglect of that diligence which patresfamilias attentissimi only were guilty of. It was an Liability of admitted principle that secundum utilitatem contraparties. hentium dolus et culpa est præstanda; and therefore where the advantage was all on one side, as in the contract of depositum3, the depositarius was only liable for dolus. Where the advantage was mutual, as in the case of locatio et conductio, the conductor, a carrier for instance, was liable for culpa levis. If the benefit were entirely on the side of the receiver he would be liable for culpa levissima, as in the case of commodatum1. Casus. Casus fortuitus, or accident, is defined as eventus cui resisti non potest, and included not only the actus Dei, but latronum hostiumve incursus; also rapinæ, tumultus, incendia, aquarum magnitudines, for which no one was liable. A person 1 D. IV. 3. I. 2. 2 D. IX. 2. 31. 5 D. XIII. 6. 18. 3 See post ch. 5. 6 D. L. 17. 23. |