assigned to him, he was not without remedy against the principal debtor. For, if the surety became bound at the request of the debtor, he had an action (judicium) mandati against the debtor; if he became bound unknown to the debtor, he had an action negotiorum gestorum (t. 27, post); but if he became bound against the will of the debtor, or from motives of kindness (animo donandi), he had no action. Even where the surety had his action against his co-sureties to recover sums overpaid, he might still benefit by the cessio actionum, because the assignee of the actions could alone avail himself of pledges given to the creditors, or hypothecæ charged in their favour, in order to secure the original debt, and of any other advantages incident thereto. By the privilege of ordo or discussio created or rather re-established by Justinian, sureties might require the creditor first of all to break up and sue the principal debtor when present, so that the sureties might be obliged to pay for him only such sum as he could not pay himself. In connection with this subject it may be observed: Intercedere means to become bound for another's debt: satisdare, to guarantee the obligation of the principal. TITLE XXI.-OF OBLIGATIONS MADE LITERIS. An obligation made literis arises out of a writing. As by uttering certain words, a man gave an agreement the effect of a civil obligatio; so, by the use of certain writings, a man gave solemnity to his consent, and made it binding; in this way a Contract was created literis or scriptura, as, in the former case, verbis. Pr. By the old law Justinian says an obligatio contracted literis used to be nominibus, but adds that these nomina were not used in his time. The following account has been collected from Gaius (3, 129), Cicero, and other writers: From very early times the Romans kept family ledgers (tabulæ, codex), in which the pater-familias entered his assets and liabilities, his expenses and receipts (1). Now, all entries on the codex or tabulæ against the name of a specified debtor went by the general name of nomina: but between these various entries there was an important distinction. Some, indeed the larger proportion, were intended not to create, but (1) In order to secure the accuracy of this ledger, which was in fact a perpetual record of the family estate, a note was taken of the various transactions of the day in a waste-book, called adversaria, which was destroyed once in every three months (vide Cicero, pro Roscio, 3, § 2). Whilst the adversaria, therefore, were of no authority in a court of law, the tabula constituted one of the most satisfactory modes of proof. merely to prove the existence of an obligatio: thus an entry was made to the name or account of a person, that there had been lent or deposited with him such a sum; this entry did not of itself create an obligatio : it merely went to show that there had been a mutuum or a deposit. Such entries were called nomina arcaria (1). But there were other entries made in terms which of themselves created an obligatio, a Contract literis. They were called nomina transcriptilia, and constituted what was called expensilatio.-This sort of contract seems to be derived from the nexum, that is, from the contract created per æs et libram. Without any actual weighing, &c., these preliminaries were assumed to have taken place, and when by express and written agreement one of the parties made an entry in his ledger (2), viz., that a certain sum had been carried to the debit of the other, as a sum weighed and delivered to him (expensum ferre, pecunia expensi lata, expensi latio), such entry created an obligatio literis, just as the Stipulatio, had it been used, would have created an obligatio verbis. Expensilatio applied only when the subject-matter of the contract was a definite quantity, a sum of money (pecunia certa), and it raised the condictio certi.-Gaius (3, 128) tells us that expensilatio was twofold, i.e., that a creditor carried as expensum to the debtor's account, either a debt already due by the latter on some other account, viz., a sale mutuum or locatio (a re in personam), or a debt due by a third party to the debtor, so that a new debtor was put in place of the old one (a personâ in personam). Hence it appears that expensilatio or transcriptio nominis was generally used to work a novatio by substituting one obligatio for another (3), or one debtor for another (t. 29). (1) Credits out of the chest (arca), which shows that it was the delivery of the thing, not the entry on the books, that created the obligatio. (2) Whilst the creditor entered in his ledger the sum as weighed and delivered to his debtor (expensum ferre), the debtor entered it in his as weighed and received by him (acceptum referre, pecunia accepta relata). Though it does not distinctly appear whether the agreement of both ledgers was a condition precedent to the existence of a Contract literis, still we think that the consent of the person so bound was required to be given in writing. In a contract literis the following was probably the mode of procedure :-First, there was an exchange of written documents between the parties, as there was an exchange of words in a stipulatio: the person who intended to become creditor wrote to the other thus: The 100 solidi which you owe me for the locatio, I have entered Hence against you: centum solidos quos mihi (3) The mutuum bound a person to give back only the sum lent, neither more nor less; nor could interest be claimed unless the Contract re was changed into one literis, including the interest. But further, a creditor suing on the Contract literis had only to prove that the forms of the transcriptio nominis had been completed; but a creditor suing on a mutuum had to prove that the money had been actually paid. This expensilatio, it must be observed, was peculiar to Roman citizens, and part of the Civil Law (Gaius, 3, 133). Soon, however, besides that Law, the Law of Nations began to be recognized. The Provincials (peregrini) bound themselves by a species of recognizance called syngrapha and chirographum (1), in which the debtor, without stating the real ground of liability, merely declared it (debere se) or that he would pay a particular sum (daturum se scribebat, Gaius, 3, 134). These writings, which must not be confounded with mere instruments of evidence (2), constituted a Contract literis, and raised a condictio certi. If a person bound himself by a written Contract literis in consideration of money paid, which, however, was not paid in fact, he was not without equitable means of relief. The transcriptio nominis or chirographum was often prepared before the money was paid to the person who became bound. Hence, the money-lenders used to take advantage of this custom to relieve themselves from paying the whole or some portion of what they had promised; so that, the debtor being bound, however unjustly, by the writing obligatory, was liable to pay money never received. To remedy this abuse, which arose from an over-strict attention to the rules of the Civil Law, the Prætors invented the exceptio non numeratæ, by which the creditor was compelled to prove that he had furnished the full consideration for the obligation (3). But this exceptio was only temporary, and after the lapse of a certain time, extended from one to five years by Marcus Aurelius, the obligation literis resumed its original effect, and the creditor was no longer required to prove that he had paid the sum for which the chirographum was subscribed (4). In Justinian's time the law as to the Contract literis was different. At that time the expensilatio, the nomina transcriptitia, were never used, for the chirographum had become general: the Law of Nations had replaced the Civil Law. But as no particular form was required, the chirographum was used in the same sense as cautio; i.e., a written promise to pay a fixed sum. Hence Justinian, following Gaius, in describing a (1) Chirographa are writings emanating from a single party, the debtor, and syngrapha (cum scripta) writings emanating from both parties, and in duplicate. (2) Writings intended as mere proofs were called generally cautio, cautiones, which, in its widest sense, denotes every kind of security given to the creditor, but more specially a written proof, a probatory document, and is synonymous with instrumentum. (3) But generally, the defendant who pleaded the exceptio was the party who had to prove its truth: so that this was a violation of ordinary rules. This same exceptio was open to the promissor in a Stipulatio, to the borrower of a mutuum who had given a cautio; and he who had given a written recognizance of his having borrowed a sum of money was allowed to set up against the holder of the recog nizance this exceptio, in order to compel him to prove his payment of the sum claimed. (4) During the time so allowed by law, if the creditor sued he was met by the exceptio non numerata pecuniæ; if he did not sue, the debtor might protest publicly against the writing, or might himself sue the creditor in order to recover it (C. 4, 30, 7, 14, 4). chirographum, tells us that if any one has acknowledged himself by writing a debtor (debere se scripserit) for a sum not paid to him (quod sibi numeratum non est), such writing raises an obligation (scriptura obligatus), and a condictio, which is suspended for a time by the exceptio non numerata pecunia (1). But Justinian diminished the time during which a person might set up the exceptio non numerata pecuniæ, for he reduced it from five to two years (2). TITLE XXII.—OF OBLIGATIONS BY CONSENT (CONSENSU). There are four Contracts created by Consent:-1. Emptio-venditio (purchase and sale); 2. Locatio-conductio (letting and hiring); 3. Societas (partnership); 4. Mandatum. These contracts are called consensual, inasmuch as in all the consent of the parties is required, though in general mere consent is not sufficient to make them perfect (B. 3, t. 13). But these four are in a peculiar sense consensual, because raised by mere consent of the parties (consensu) and created by a mere agreement (conventio), without any delivery, writing, or Stipulatio. Moreover, they may be created even between parties not present, by letter, or by an agent (nuncium), whereas verbal obligations can be created only between parties present (B. 3, t. 19). There are other differences between consensual Contracts and verbal obligations. Thus, consensual Contracts are bilateral or synallagmatic; i.e., both parties become bound to each other; whereas a Stipulatio, like Mutuum, is unilateral; i.e., only one party is bound. The consensual, like the other bilateral contracts, are contracts ex æquo et bono (B. 3, t. 13, fin.), whereas the Stipulatio and Mutuum are contracts stricti juris. Originally none besides these four Agreements were binding apart from delivery or Stipulatio; for, excepting agreements of Sale, Locatio, Partnership, or Mandatum, all others were nuda Pacta; i.e., raised no action, and therefore no liability. But afterwards the Prætors attached actions to certain Pacta, which thus became obligatory, and were called Prætorian Pacta; e.g., the Pactum constituti (B. 3, t. 20), and Hypotheca (B. 3, t. 14, fin.). Moreover, the Civil Law made certain Pacta binding, which were called Pacta legitima, to distinguish them from those which did not bind, and raised no actions. Thus, the Pacta Donationis (B. 2, t. 7), and the Dotis Constitutio (B. 3, t. 15, n.), were binding by (1) There was, therefore, even in Justinian's time, a Contract literis, since the written acknowledgment of a debt created an obligation apart from any actual pay ment or stipulatio (cessante scilicet verborum obligatione). (2) Instead of the exceptio, the debtor might set up, even after two years, the ex mere consent of parties, by the imperial Constitutions. Lastly, Pacta, or agreements appended to contracts ex æquo et bono, at the time they were concluded (ex continenti) (1), were held to partake of the obligatory nature of the Contract, and to be part of it, so as to be capable of being enforced by the action attached thereto (2). Nuda Pacta, i.e., not prætorian, nor legitima, nor adjuncta, raised no action; but if not contrary to the laws, or contra bonos mores, they produced an exceptio against the plaintiff who had brought an action, of the benefit of which it was the object of the Pactum to deprive him (B. 4, t. 13). TITLE XXIII.—OF EMPTIO-VENDITIO (SALE). Pr. Sale is a Contract by which one party binds himself to another to deliver, or to cause to be delivered, a thing to such other, who binds himself to pay for it. It raises two direct actions, the one, venditi, or ex vendito, allowed to the vendor; the other, empti, or ex empto, allowed to the purchaser. This contract is complete whenever the parties have agreed as to the thing and the price, though the thing has not been delivered, or the price paid. But after Justinian's time, if, during the treaty for sale, it was intended that the terms of sale should be drawn up in writing, the contract was not complete until such instrument was regularly prepared. Till then there was no sale; either party might change his mind and withdraw with impunity. Pr. By the old law earnests (arra) were only a sign or proof of a contract being completed (argumentum emptionis-venditionis), and neither contracting party could, even by sacrificing the earnest or its value, retire from a sale to which he had consented. By a Constitution of Justinian, earnest-money assumed the nature of a forfeit; so that either party might withdraw the buyer by sacrificing the earnest, the seller by returning the double of it. But if sale had involved the obligation of transferring the property (dare), provincial land could not have been the subject-matter of sale according to the old law. As such sale involved only the obligatio of putting the purchaser in possession, it was part of the jus gentium, and applied inter non cives to all kinds of things. : § 1. In a sale the price might be left to the arbitration of a third party. No doubt the price must be fixed somehow; for an agreement would not bind if one party was free to determine the sum to be paid or ceptio doli; but then the defendant had to prove the fraud. (1) If the pactum were subsequent in date to the contract to which it was appended, it remained nudum pactum, and raised only an exceptio (B. 3, t. 13). (2) One instance of such an incorporated agreement was the pactum de retrovendendo for redemption, by which the seller reserved to himself for a certain time the right to buy the thing back (tit. seq.). |