> the hypotheca. The creditor must always fear that the security offered him had been impaired by previous hypothecation. There was no requirement of a prescribed form or of a public record to authenticate the existence of a hypotheca. The creditor had to depend very much on the representations of his debtor. It was the duty of the latter, whenever he pledged the property, to make known the existence and extent of previous pledges, and he was threatened with severe punishment if he failed to do so. But this was only an indirect, and often an insufficient help to the creditor. The difficulty was greatly aggravated by the admission of tacit pledges for particular kinds of claims or obligations, pledges which required no express agreement, as they were established and enforced by law. Thus, if a man lived in a hired house, his furniture was subject to a tacit pledge for the payment of the rent. If the owner of a ruined building borrowed money for its restoration, the new building was subject to a tacit pledge for the payment of the loan. The inheritance which came to an heir was subject to a similar pledge for the payment of any legacies enjoined in the will of the testator. The whole property of a guardian was subject to a similar pledge for any claims against him arising from the administration of his guardianship. And from the time of Caracalla, the whole property of everybody was similarly pledged for public dues and taxes. But there was still another aggravation of the difficulty. When a piece of property was sold for the benefit of several creditors to whom it had been successively pledged, the regular course of things was, that the one to whom it was first pledged should be first satisfied from the proceeds, and then the others in the order of time. If this course had been invariable, much complication might have been avoided. But there were numerous exceptions to it particular claims, as those of the treasury for public dues, were specially favored, being allowed to take precedence of those that were earlier in time. Amid all these sources of confusion and uncertainty, it must have been excessively difficult to ascertain the real worth of any proposed security; and, as a necessary consequence, it must have been much more difficult than it would otherwise have been, for those who were in want of credit to obtain what they needed. The Roman law of pledge appears to me the weakest part of their system; the only part, perhaps, of which one could say that it was really ill adapted to the ends for which it was created. The subject of the next lecture will be the law of obligations. LECTURE IX. LAW OF OBLIGATIONS. No other part of the law so thoroughly worked out by Roman jurists, or so influential on modern systems. We first describe the particular obligations, then state general principles which apply to all of them or to certain classes. I. VERBAL CONTRACT.-Instead of written notes, the Romans used the verbal stipulatio, consisting of a formal question (Do you promise, etc.; will you give, etc.), with corresponding answer. If spondeo was used by stipulator and promissor, it was a sponsio, and was confined to Roman citizens. If the two parties had different things in mind, the stipulation was invalid. If they lived in different places, an agent might be used; who, however, could not say, Will you give Aulus five hundred aurei, nor Will you give me as agent of Aulus, neither form being generally valid. But he might say, Will you give me five hundred aurei, and afterward transfer (cede) his claim to Aulus; or else, Will you give Aulus five hundred, or, failing that, give me one thousand. II. LITERAL CONTRACT (with written letters as formal basis of the obligation): none such in the Justinian law, the old use of codices or account-books for this purpose (retained longest by the argentarii, brokers) having become obsolete. III. REAL CONTRACTS (where the formal basis of obligation was a thing delivered or rendered): such were the mutuum, commodatum, depositum, pignus. (a) Mutuum, a loan, usually of money, which, to be of use to the receiver, must become his property, but with the obligation of equivalent return. There could also be a mutuum of other fungible things (consisting in number, weight, and measure). Interest was promised by a separate contract: the maximum rate varied at different times, but never exceeded twelve per cent., except in the nauticum fenus, which was a kind of insurance, as the debt ceased if ship or cargo was lost without fault of the borrower. (b) Commodatum, a loan of movable property, to be used (not owned) by the receiver, and returned without compensation.—(c) Depositum, resembling the commodatum, but not to be used by the receiver.-In the mutuum, the receiver must bear all loss or injury of the thing received: in the commodatum, only what strict care might have prevented; in the depositum, only what came from his own dolus (fraud) or lata culpa (gross negligence). Further, any nameless agreement to mutual services became a real contract, with binding force, as soon as either party had rendered his promised service. IV. CONSENSUAL CONTRACTS (in which, contrary to the general rule, the mere agreement of the parties was a ground of obligation): (a) Emptio venditio (buying and selling). Payment must be in money; otherwise the business was a permutatio rerum. Until traditio (transfer of possession, delivery), the ownership remained with the seller; but (except in fungible things) any loss which strict care could not have prevented fell upon the buyer. The seller, if he acted bona fide, was not responsible for a defect of title, until actual eviction of the buyer. For defects in the article, unless they were obvious, he was always responsible. (b) Locatio conductio (letting and hiring). Payment must be in money. The locator retained his ownership, and could at any time sell the property, only with a liability in damages to the conductor.-Under this head came also the hiring of labor (locatio operarum by the laborer). (c) Societas (partnership), agreement to hold certain property in common, for the common gain of the parties. Lucrative use essential. Societas totorum bonorum, or alicujus negotiationis. The ratio of contributions might be any whatever; and any shares of loss or gain might be fixed in the contract; but no party could be wholly excluded from the gain (societas leonina). (d) Mandatum (commission) agreement to fulfil some order without compensation (but the mandator must pay all reasonable expenses of the mandatarius): it was much used by the Romans. Thus, a procurator to conduct one's case in court was appointed by mandate; and, if appointed procurator in rem suam, received the case with all its liabilities as his own. Any claim, or right of action, could thus be transferred (ceded) to another. No other part of the law-system was so thoroughly worked out by the Roman jurists as the law of obligations. No other part has been so fully taken up into the juristic systems of the modern world. It is highly complex; for it embraces a great variety of transactions and relations. There are, indeed, certain general facts and principles which apply to all obligations or to large classes of them. These, if we pursued a philosophic order, should be set forth at the outset. But, without knowing what they apply to, you would perhaps fail to understand them readily or perfectly. It seems better to begin with the single obligations, and to form a distinct conception of each, before looking at their common features and characters. way Among us, if a person wishes to lay himself under a definite and formal obligation, the most common is to give his note, his written promise to pay a certain sum of money to a certain person. It is remarkable that this form of contracting obligations, which seems to us so simple and natural, was unknown to the Roman law. But it must be remembered that the law-forms used by the Romans had their origin in times when writing was neither easy nor common. is not surprising, therefore, that among them a form of spoken words, a verbal contract, should hold the place It |