accidentally, representative character (actio negotiorum gestorum).

Similarly, a person incurred obligatory liabilities through injuries of certain special kinds committed by persons in his power, resident on his premises, or in his temporary or permanent employ. Such injuries are comprised in the list of quasi-delicts, the essence of most of which was that the owner of the premises, house, room, ship, tavern, or hostelry, through the medium of which the injury was wrought, was in no way personally and morally accountable for the injuries committed, and indeed was probably ignorant of the fact of their commission; while his sons living with him, his slaves or free persons in his permanent or temporary employ, involved him, by their careless acts or omission, in the necessity of giving compensation to innocent and injured strangers, and so made him party to an obligation he could in no way have foreseen.

§3-Extinction of obligations.

An obligation, as existing between two parties, was extinguished by any mode which either terminated every legal relationship which bound them together or which substituted a new legal relationship for the existing one. The mere addition of a supplementary obligation, as by adding a new party (adstipulatio), was no extinction; but the taking up or absorption of an old obligation into a new and more comprehensive one, as where, owing to insolvency, or death, or the institution of a trustee in guardianship, or lunacy (curatela), a single debt was treated as part of an aggregate whole or universitas juris,-is such an

extinction.

The modes of extinction of obligations may be classed as falling under one or other of the following heads:(1) Fulfilment (solutio).

(2) Release (acceptilatio).

(3) Set-off and mutual adjustment of accounts (compensatio).

(4) Renewal (novatio).

(5) Amicable adjustment of litigated claims (transactio). (6) Reference to an arbitration (compromissum).

(7) Transfer (cessio nominum).

(8) Bankruptcy (cessio bonorum, curatela).

(9) Merger (confusio).

(10) Judicial process or decree, oath, and prescription.

(1) FULFILMENT (solutio).

The natural and normal mode of extinguishing an obligation is by precisely satisfying all the rights, and performing all the duties, which it strictly comprises. Where the obligation is an alternative one, an actual choice has to be made between two or more objects or modes of fulfilment. Where things are only generically described, they have to be specifically or individually selected, as, for instance, "a bushel of corn" generally has to be reduced to the definite shape of a particular bushel, or "a quarter in value of the wine in my cellar" to be converted into a numerically estimated quantity of bottles described as belonging to different vintages or as bearing various brands and stamps. Where, again, suspensive conditions may be interposed, interest may have to be calculated and added to the debt, or discount to be subtracted by reason of premature payment, or deductions to be made for counter expenses, for advances, or in respect of losses through the delay or negligence of the person in favour of whom the obligation is to be performed. The obligation is only fulfilled when all the acts of this kind are done, the calculations and adjustments made, the conditions satisfied and the residuary payments accomplished, which the express or presumed agreement of the parties contemplated; or which ordinary custom, as applicable to that particular class of transactions and sanctioned by law, imports into their agreement; or which, as in the case of the penal damages for injurious offences committed more or less intentionally (delicta and quasi-delicta), positive law peremptorily announces to be the sole necessary and sufficient mode of fulfilling the obliga

tion. It made no difference to the validity of the fulfilment who it was who discharged the obligation, or whether the debtor consented to his own liberation or

was even aware of it.

J. (iii. 29).

If the payment were refused by the creditors, the offer of payment and deposit of the money in a L. 19, C. (v. public place, as a church, if so required, or 32). with a magistrate, was equivalent to payment. Where a debtor paid his creditor a sum in bulk, in respect of a variety of debts, he might indicate to which debt the payments were to be first appropriated. If he intimated no preference himself, the creditor was bound to consult his debtor's interests by regarding the most burdensome debts as discharged in order, such as, first, those carrying interest; then debts accompanied by securities; then those for which the debtor has already incurred an adverse judgment; then those for which he would be in danger of encountering a sentence which would import infamy or invoke criminal punishment; and if no other ground of precedence existed, the older must be held L. 97, D.

satisfied before the later.

(xlvi. 3).

Where the proof of satisfaction by payment is a document proceeding from the creditor, it cannot be pleaded in an action for thirty days after date.

Proof of satisfying by payment an obligation C. (iv. 30). based on a written agreement could only be supplied by the evidence of five witnesses of good character, who could swear they personally witnessed the payment. L. 18, C. (iv. The payment of a debt instantly liberated all 20). sureties and discharged all securities for its payment.

(2) RELEASE (acceptilatio).

An obligation could be extinguished by release, on the part of the person in whose favour it was to be performed. This release might either be the expression of a fresh agreement between the parties, or it might be entirely one-sided and proceed from the unrecompensed liberality of one of them. It might be effected either by reversing

the process by which the obligation came into being, or 1, 2 J. (iii. 29). by making an entirely new agreement, having for its object the release of a debtor under an

L. 17, D. (xxxix. 5). L. 2, C. (viii.

44).

old one. In the case of an obligation resulting from entries in the household accounts (litteris contracta), a mere entry of the fact of the debt being satisfied was sufficient; when formal words had been used, as in the contract by question and answer, the inverse words could any time effect a release. In these cases it is presupposed that the relations of the parties have either not been altered or not immediately altered by anything done under the original agreement. Where the duties under an agreement had been partly executed, or it was desired to release a debtor from a number of obligations of different kinds, a proceeding was used by which, first of all, the duties of every kind yet to be performed by the debtor were gathered up into an uncomplicated statement of net money due on an account stated under a newly substituted agreement; release from this last obligation was granted by an agreement of question and answer. The former of these agreements was named the Aquiliana stipulatio, and was invented by a jurist, Gallus Aquilius, a contemporary of Cicero's.

(3) SET-OFF AND MUTUAL ADJUSTMENT OF ACCOUNTS (Compensatio).

Where there were mutual accounts between two persons, a sum owing on one side could be "set-off" against an equal sum owing on the other side and, to the extent that this was done, the obligations, which included the debts on both sides, were extinguished. The debts, for this purpose, must be at the time reduced or easily reducible to a simple money value, and the intention to set-off one debt against. another debt, or part of another debt, must be clearly and positively manifested, each debtor having the right of selecting which of his liabilities he would wish to have cancelled. Provided the debts were fully due and could be sued for at once, it made no difference how they had

arisen; in what kind of action they might have to be sued for; whether they could be sued for directly, or whether they could only be made available by way of plea, or by way of the equitable cognizance of a judge bound to give effect to considerations of good faith. At one time it would seem that a set-off was only enforceable in the case of a banker (argentarius), who could only sue for the residuary difference between his claim on the defendant and the defendant's claims on himself, and of the purchaser of an insolvent's estate (bonorum emptor). In the banker's case, however, only debts of the same kind could be set-off against each; in the case of the 66. J. (iv. 39). purchaser of the estate, debts could be set-off D. (xvi. 2), C. which had not yet been reduced to a common money measure, as things owing in specie against money.

(4) RENEWAL (Novatio).

Gaius iv. C. 4,

(v. 31).

An obligation was extinguished when a new one was substituted for it, as by altering one of the parties or the time of payment, or by introducing a new condition. When a new surety was added, there was, strictly speaking, only a supplementary obligation entered into over and above. the old one, which still subsisted in full force,1 though Justinian in his Institutes calls this addition of 1 L.8, C. (viii. an obligation by the same name as the sub- 42). stitution of a new one (novatio). Justinian 3 J. (iii. 29). enacted that the intention to enter into a substituted obligation must be clearly and distinctly manifested, otherwise the old obligation will continue to subsist in full force.

2

In former times, even up to the days of Gaius, when the contracts made by mere entries into the household accounts were in full force, a renewal (novatio) of an obligation was said to be effected either by changing the parties or by altering the ground of a debt, as by debiting a sum due on a sale or hiring as a loan. The debts so entered were styled transcriptitia nomina. As the creation of them was connected with customs peculiar to Roman citizens, the debts expressing this kind of obligation were sometimes opposed