missariis contraxisse, seque ad legata et fideicom- CHAP. missa præstanda obligasse censetur1. The act of

accepting the inheritance made the heir bound to the legatees to pay them the legacies left by the testator2; but this implied contract existed only between the heres, and the legatarii, and fideicommissaria; for the creditors to whom the estate of the deceased was indebted could sue the heres as they could have done the deceased; upon whom devolved not only his rights, but all his liabilities. From this contract arose the actio personalis ex testamento against the heres who had administered to the estate, to enforce the delivery of the legata and fideicommissa, with any accessions that might have accrued to them, with interest for the period of his delay3.

IX.

6. Indebiti solutio was a contract by which he Indebiti who by mistake had been paid what was not due solutio. to him was bound to make restitution to the person who had paid him. Est quasi contractus quo Definition. quis ex errore facti id quod naturaliter indebitum erat solvendo, alterum, qui ex ignorantia accepit ad restitutionem obligasse censetur3. It is therefore necessary to constitute this contract, that the payment and receipt should be with the ignorance of the payer and payee, and that the thing paid was indebitum. If the payer knew he was paying what was not due he had no remedy, because he either intended it as a gift, or his intention was to vex the payer with an action, which the law would not countenance. If the payee receives with a knowledge it was not due, not only the condictio indebiti, but the actio furti, would lie against him. The condictio indebiti was an action stricti juris for the recovery of whatever had been paid per errorem, to compel the receiver and his heres to

1 Hein. El. 985.

2 I. III. 28. 5.

3 D. XXXI. 33.

4 Whether an error in law was sufficient to support an action is doubtful. Vid. Colq. 1786 et seq.

BOOK refund with all accessions from the time of ment.

III.

pay

A payment to the wrong person per errorem would support the action. Also in the case of payment to minors, prodigals, and women. This action must be distinguished from the condictio causa data, causa non secuta, as in the case of do ut des; also from the condictio ob turpem causam, as where I give you money not to commit murder1; and from the condictio sine causa, as in the case of a dos given in consideration of an incestuous marriage, which may be recovered by that action from the want of consideration. It is obvious that we may be involved in the abovementioned contracts by those who act by our authority, and on our behalf, as a filiusfamilias, or a servus.

CHAPTER X.

Of the way by which Obligations arising from
Contracts are Dissolved.

X.

OBLIGATIONS arising from Contracts were dis- CHAP. solved either, 1. Ope exceptionis, or 2. Ipso jure ; in the former case, by the allegation and proof of Contracts some fact sufficient to defeat an action; in the solved. latter, where the law took away the right of action.

how dis

1. Ope Exceptionis. Examples of this may be Ope excepseen in præscriptio, where the defendant pleads the tionis. fact that he has been the bona fide possessor of the thing sought to be recovered for that period whereby the law assigns it to him; or a res judicata, where he pleads the judgment of a court in his favour in a former action.

2. Ipso Jure. The ways in which obligations Ipso jure. were dissolved by the operation of law, were, 1. Common to all contracts. 2. Peculiar to some, and exclusive of others.

I.

The ways common to all contracts were 1. Solutio. 2. Compensatio. 3. Confusio. 4. Oblatio. 5. Rei Interitus. 6. Novatio.

1. Solutio, payment, the ordinary mode of Solatio. cancelling obligations, quæ est vera præstatio ejus quod in obligatione est; though the term solutio involves every satisfaction of a claim of whatever nature it may be2. One thing cannot be given in satisfaction for another3, nor can payment be made by instalments unless by consent of the creditor1. Nor can the payment be properly made at any other time and place than that agreed on. The effect of payment is to liberate the debtor and his

III.

BOOK sureties, and to give him a right to resume full possession of any property which he may have pledged as security'.

Compensa

tio.

Confusio.

Oblatio et consignatio.

Rei interi

tus.

Novatio,

Voluntary.

2. Compensatio, or debiti et crediti inter se contributio, called in the law of England "set off," is where mutual debts are balanced against each other. If they be equal each extinguishes the other; if not, he against whom the balance is, is the debtor. It is essential that the debts be reciprocal, that is to say, they must be due in like manner; a debt due at a future day cannot be set off against that which is payable3.

3. Confusio. This is when the obligation of the debtor and the right of the creditor coalesce in the same person; for as no one can be a debtor to himself, the debt is extinguished; as when the debtor becomes heir to his creditor1.

4. Oblatio et consignatio. This is where the debtor admits that a debt is due, but disputes the amount, and tenders the payment, which being refused by the creditor, he delivers it sealed up to the officer of the court. This is known in the English law as "paying money into court." If it turn out that he have paid the right sum into court he is free from all costs of suit, because the creditor has wrongly proceeded with his action.

5. Rei interitus. If the thing due perish, and that without the fault of the debtor, the debt is extinguished.

6. Novatio, est prioris debiti in aliam obligationem, vel civilem vel naturalem transfusio, atque translatios, the changing an existing debt into a different obligation, which is by changing the debt itself, or the person of the debtor. A novation may arise in every contract, and is either voluntary, or necessary.

1. A voluntary novation arose by agreement

X.

between the parties, when, (1.) The debtor re- CHAP. mained the same, but the nature of the obligation is changed. (2.) When the debtor was changed by the transfer of the liability to another person.

debt.

(1.) Where the debtor remains the same, e.g. Change of where he who is liable ex empto makes himself liable for the same debt ex stipulatione; or where, having originally agreed to pay conditionally, he binds himself absolutely; but the prior obligation must be specially dissolved, or the debtor will be liable upon both1.

(2.) Where the debt remains the same, but the Change of debtor is changed. This is done by delegation, debtor. which is vice sua alium reum dare creditori2. This new reus, or party who takes upon himself the original liability, is called expromissors; and is ap- Expromispointed by stipulation, by writing, or nutu, by tacit sor. consent. The effect of this delegation is that the original debtor is entirely freed from his obligation, and that although it should turn out that the expromissor be insolvent. The delegation must be with the consent of the creditors. The expromissor is entirely distinct from the fidejussor or adpromissor, because with them the liability remains as long as the debt exists. Expromissio is also distinct from cessio, in which case the creditor assigns his rights to a third party, the original debtor remaining liable; and which is therefore no

novation.

2. A necessary novation is in the case of a Necessary. litis contestatio, where the original debt was converted into a judgment debt, and was then recoverable by the actio perpetua, instead of the actio temporalis®.

Acceptilatio. This was a mode of dissolving a Acceptila verbal contract by a verbal receipt; for nihil tam tio.