one person for the damage he sustained, he cannot claim damages § 61. over again from the other persons, for the simple reason that there is no longer any damage to compensate him for. A correal obligation, however, is extinguished as against all the parties concerned, not only by payment, but by any ground of extinction whatever (even though it be a purely formal one), which affects the existence of the common obligation, as, for example, by acceptilatio or litis contestatio. If a surety has been released from his liability by acceptilatio, i. e. by a formal contract of release (inf. § 76), the principal debtor is thereby released from all further claims. If one of two correal creditors under a loan takes an action in respect of such loan, his litis contestatio (sup. pp. 208, 209) operates to consume not only his own, but also the other correal creditor's right of action, and if judgment is given against him, such judgment entitles the successful defendant to meet the other correus with an exceptio rei judicatae. It follows from the community of the obligation that the principle of correality, i. e. the principle of representation, is as applicable to the extinction of the obligation as it is to the rights and duties accruing under it, i. e. every party to a correal obligation represents the whole obligation; every party to a solidary obligation only represents his own obligation. In the course of the development of Roman law the principle of correality was broken in upon. Thus Hadrian gave several cosureties the exceptio divisionis, i. e. the right to be sued for a proportional share only (inf. § 67 I. 3). Justinian extended this right (the so-called 'beneficium divisionis') by his 99th novel to persons who, though correally liable by agreement, are nevertheless, materially speaking, only interested in part of the object of the obligation, as, for example, when they hire a room jointly or accept a loan jointly. The effect was to substitute, to this extent, the principle of proportional shares (as in joint ownership) in place of the principle of correality. Accordingly by 1. 28 C. de fidejussoribus (8, 40) Justinian abolished the consuming force of litis contestatio as regards passive correal obligation, in other words, he provided in effect that an action taken against one correal debtor should not henceforth operate to consume the right of action against the other. Nevertheless the § 61. rule that, both in active and passive correality, when judgment had been obtained in an action with one correus, the exceptio rei judicatae could be pleaded for, or against, the other correi, remained unaltered, and it is this rule that constitutes, to this day, the practical distinction between a correal and a solidary obligation. A correal obligation still means a number of obligations which are bound up into one, a solidary obligation a number of independent obligations existing concurrently. In every correal obligation the liability of one correus is exposed to the effects produced by the acts of the others. Thus if one correal creditor waives his claim against the debtor, or unsuccessfully sues him, his co-creditor loses his right. A correal debtor is moreover responsible for culpa imputable to his co-debtor. On the other hand, a solidary obligation is not affected by the acts of others. Accordingly, the liability of one solidary debtor is not affected, say, by an action taken against the other. It is only where the object of the obligation disappears (viz. by payment, by material satisfaction) that the solidary obligation ceases, in virtue of its own contents, to exist. Both in Justinian's law and in modern law the rule holds good that correal obligation means joint liability, solidary obligation separate liability. L. 3 § 1 D. de duob. reis (45, 2) (ULPIAN.): Ubi duo rei facti On the above subject v. Jhering, loc. cit. (sup. n. 5), pp. 185, 186. Duo pluresve rei promittendi ita fiunt: MAEVI, QUINQUE § 61. DARE SPONDES? respondeant singuli separatim SPONDEO. § 62. The Contents of an Obligation. Every obligation has for its object either dare, i. e. the procuring § 62. of ownership, or of a civil law jus in re (a servitude), or facere, i. e. any other act. In the former case the civil law is able to determine the value of the obligation, which is co-extensive with the value of the object of the act (i. e. the thing or servitude). Hence an obligatio dandi is called a certa obligatio, because its value is objectively ascertained, is perceptible, and is strictly defined. But where the object of the obligation is some other act-e. g. the rendering of a service, the building of a house, the restoration of a thing which already belongs to me, or the procuring of a jus in re not recognized by the civil law (say, a superficies)-in all these cases the civil law has no means of determining the value of the obligation, which is not expressed in the value of the object of the act. Hence an obligatio faciendi is called an incerta obligatio, because its value is not ascertained, not perceptible, not strictly defined by the contents of the agreement itself. An obligation to procure ownership in a thing which is only determined in the alternative or generically, is not a direct obligation to procure ownership, but an obligation, in the first instance, to select. Hence it is not an obligatio dandi, but an obligatio faciendi, an incerta obligatio. There is no definite object representing and embodying the value of the obligation. But an obligation to procure ownership in a certain quantity of res fungibiles, e. g. in a certain amount of wheat, is an obligatio dandi and an obligatio certa. The value of such an act is determinable by reference to every such amount of the thing in question, and the procuring of res fungibiles involves, not a selecting between things which are different, but a counting, or weighing, or measuring, of things which are treated without distinction as equal (tantundem ejusdem generis est idem, cp. sup. p. 228). In such a case the direct object of the obligation is to procure ownership. $ 63. § 63. Negotia Stricti Juris and Negotia Bonae Fidei. The effect of some contracts is to produce a liability which is precisely determined and accurately defined. The effect of others is to produce a liability which is not precisely determined nor accurately defined and which is (at the outset at least) indefinable. Contracts of the former kind are called negotia stricti juris, contracts of the latter kind negotia bonae fidei. Negotia stricti juris are contracts which bind the parties to the exact performance of that which they promised, for example, the Roman stipulatio (which may be compared to a modern bill of exchange, inf. § 67). Negotia stricti juris are interpreted literally. Nothing is due that has not been promised. The contents of the obligation to which they give rise are a matter of calculation and can be accurately determined. If a person has promised by a negotium stricti juris to dare certam rem, the resulting obligatio is certa in the full sense of the term. Nothing more is due than what has been promised. Negotia bonae fidei, on the other hand, are contracts in which the parties are bound to perform, not what they promised, but rather whatever can be fairly and reasonably required according to the circumstances of the case-which may be either more, or less, than what was actually promised. The resulting liability is not a matter of calculation, and will be variously determined according to the particular circumstances. The obligatio is always incerta, even where there is an express promise, the direct object of which is to dare certam rem, for example, in an exchange. The nature of the parties' liability is expressed in the words: quidquid dare facere oportet ex bona fide (cp. p. 187). Bonae fidei negotia, such as sale, exchange, hire, partnership, always operate to impose certain duties on the parties, whether such duties were expressly promised or not. 1. The parties must exercise care, 'diligentia.' The degree of care required is uniformly omnis (or summa) diligentia, or, as it is often called, diligentia diligentis (sometimes termed diligentissimi) patrisfamilias. In other words, they are bound to behave in the If § 63. way any careful man would behave under the circumstances. either party fall short of the standard required (so-called culpa levis), he must indemnify the other for any damage resulting from his act or default. It is only in exceptional cases that the liability of the parties is restricted to deliberate and malicious damage (dolus), or to carelessness so gross as necessarily to imply an intention (culpa lata). The separate cases of this kind will be specified hereafter in discussing the separate contracts. 2. The parties are liable in full damages for delay in performing, for inadequate performance, or for non-performance. The debtor must compensate the creditor for 'quanti ea res est,' i. e. for all damage which the creditor has sustained as a direct consequence of the debtor's wilful or negligent non-performance or misperformance (the creditor's 'interesse'). In case of delay (mora) the debtor must pay interest on account of such delay. The rule is different in regard to negotia stricti juris (sup. p. 192). The debtor however is never liable for accident (casus a nemine praestatur). Accident, within the meaning of the law of contract, means any event which takes place without the debtor's act or default. Thus an accident may render performance, on his part, impossible (if, for example, the merchandise he agreed to procure is destroyed), and in that case he is discharged. Only a debtor who is in mora solvendi is, by way of punishment, made liable even for casus in other words, casus does not operate to discharge him, but leaves him liable to compensate the creditor to the extent of his (the creditor's) interesse. II. THE MODES IN WHICH OBLIGATIONS Arise. 64. Contracts and Delicts. An obligation arises either by a declaration of consensus (ex con- § 64. tractu), i. e. in conformity with the will of the debtor, or by an act in contravention of the law (ex delicto), i. e. contrary to the will of the debtor. Besides obligationes ex contractu, we have the cases of so-called 'obligationes quasi ex contractu,' which arise from facts bearing |