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condicio adiciatur, novationem fieri, sic intellegi oportet, ut ita dicamus factam novationem, si condicio extiterit: alioquin si defecerit, durat prior obligatio. Sed cum hoc quidem inter veteres constabat tunc fieri novationem, cum novandi animo in secundam obligationem itum fuerat: per hoc autem dubium erat, quando novandi animo videretur hoc fieri et quasdam de hoc praesumptiones alii in aliis casibus introducebant: ideo nostra processit constitutio, quae apertissime definivit tunc solum fieri novationem, quotiens hoc ipsum inter contrahentes expressum fuerit, quod propter novationem prioris obligationis convenerunt, alioquin manere et pristinam obligationem et secundam ei accedere, ut maneat ex utraque causa obligatio secundum nostrae constitutionis definitiones,
naturalem transfusio atque translatio, hoc est, cum ex praecedenti causa ita nova constituatur, at prior perimatur' Dig. 46. 2. 1. pr.; novation is the extinction of one obligation by the substitution for it of another. Originally it could take place in two ways, transcriptio (Excursus VI11 inf.) and stipulatio ; but in Justinian's time the latter was the only means available for the purpose. The end in view in a novation may be either to change one of the parties to the subsisting obligation, or, without changing the parties,'to alter its nature either by converting a real or consensual into a verbal obligation or by modifying its- terms. The first of these ends is illustrated in the text by the words veluti si id . . . in posteriorem; the second, by the paragraph commencing sed si eadem persona ....
The parties may be changed in two ways. Firstly, the creditor may be changed, the amount and terms of the debt remaining the same. Thus, if A owes B 5/., and C (with B's consent) stipulates from A for payment of that debt to himself, A's debt to B is extinguished. The same effect might be produced, though perhaps with a difference of remedy, without novation, by B's assigning his rights against A to C, Gaius ii. 38, 39, Excursus V inf. Secondly, the debtor might be changed, the creditor remaining the same. Thus, if under the circumstances supposed, B stipulated from C for payment to himself of the 5/. which A owed him, A's debt to B would be cancelled. If this was done with A's assent, it is usually called delegatio; if not, ex promissio ; but see Poste's Gaius, p. 670.
It is immaterial whether the obligation which is novated be civilis or merely naturalis: its extinction involves that of all rights which were accessory to it, such as guaranties, hypothees, claims for interest and penalties, etc., Dig. 46. 2. 15; ib. 18 ; ib. 27 ; ib. 29. So too, as is said in the text, the obligation created by the novating contract will extinguish the old one even though it be natural only, i. e. for some reason
4 quas licet ex ipsius lectione apertius cognoscere. Hoc amplius eae obligationes, quae consensu contrahuntur, contraria voluntate dissolvuntur. nam si Titius et Seius inter se consenserunt, ut fundum Tusculanum emptum Seius haberet centum aureorum, deinde re nondum secuta, id est neque
or other not enforceable by action. But two obligations are essential; if there is not one to novate, the attempted novation is null ; if there is one to novate, but the novating contract is void (e. g. 'si id quod tu mihi debeas, a peregrino, cum quo sponsus communio non est, spondes verbo stipulatus sim' Gaius iii. 179), the former is altogether unaffected.
The promise of a slave ordinarily created a natural obligation, and consequently, as Servius Sulpicius argued (Gaius, loc. cit.), it is hard to see why it should have no novative effect; the explanation given by Theophilus is Oti jrow i vo^aricova ov p.6vov rb TUcno-dtu tpwrudpr ivo^ppr, dXXo, Ka\ T6 vneivai rrp6trc&nov' arrpoaanros 6V 6 oovXoc.
The rule that, if the parties to the new contract are the same, a novation ensues only if it contains 'novi quid,' holds only where the novated obligation was itself verbal. If it had been otherwise, novation would have been disabled from discharging one of its most valued functions, viz. the substitution of obligations pursued by actions stricti iuris for obligations enforceable only by actio ex fide bona. The Proculians were of opinion that the adiectio or detractio of a surety in the new contract was not sufficient to support a novation, Gaius iii. 178.
For condicio and dies see on Tit. 15.2 and 4 supr.
Servius Sulpicius had held that a conditional stipulation novated an unconditional contract whether the condition was fulfilled or not. Gaius (iii. 179) thought that the old contract subsisted until the condition of the new one was fulfilled, but suggests that if the creditor sued upon it before such fulfilment he might be met by exceptio doli or pacti, and this was soon recognised as law, Dig. 23. 3. 50; ib. 83; 12. 1. 36; though Labeo (Dig. 23. 3. 80) had thought otherwise.
Among the praesumptiones or evidence upon which the jurists relied to prove that there was animus novandi was, according to the Sabinian school, the addition ofasurety (cf. Dig. 2. 14. 30. 1) ; for the presumptions against such intention see Dig. 46. 2. 6. pr. and 1. ; 45. 1. 58. Justinian's own enactment is in Cod. 8. 42. 8 ; his statement that, unless the intention to novate was express (' nisi ipsi specialiter remiserint quidem priorem obligationem et hoc expresserint, quod secundam magis pro anterioribus elegerint' Cod. loc cit.), the two obligations should subsist side by side is apparently subject to the qualification that when one was fulfilled the other was ipso facto extinguished ; see Dig. 46. 2. 8. 5.
§ 4. When the res was no longer integra, an agreement between the parties to be off their bargain did not merely extinguish the obligation: it rather operated as a new contract which bound the one in whose favour performance had taken place to restore the other m statum quo, pretio soluto neque fundo tradito, placuerit inter eos, ut discederetur ab emptione et venditione, invicem liberantur. idem
but which was unable to injuriously affect rights acquired under the previous contract by third persons: '[re secuta] non tam hoc agitur, ut a prístino negotio discedamus, quam ut novae obligationes constituantur' Dig. 2. 14. 58.
Among the modes 'quibus obligatio tollitur' described by Gaius is the commencement of an action, litis contestatio, which, if the action were a iudicium legitimum, produced a quasi-novative effect, termed by the commentators novatio necessaria; the very delivery of the formula in the action by the praetor to the iudex extinguished the defendant's debt, and substituted for it a new obligation, viz. the legal liability to be condemned if the plaintiff proved his case, Gaius iii. 180, 181. It differed, however, in its operation from novatio proper (novatio voluntaria), for it left the original obligation subsisting naturaliter, Dig. 12. 6. 60, and, as a consequence, did not destroy accessory rights, such as guaranties, hypothecs, etc., Dig. 46. 2. 29. Of this process-consumption, as it is called, there are still traces in the Corpus iuris, but the general rule under Justinian is that litis contestatio no longer extinguishes the creditor's right, Bk. iv. 13. 10 inf., Cod. 3. 1. 13. 2 and 5; 3. 10. 1. pr. It must indeed have ceased to extinguish it ipso iure with the disappearance of iudicia legitima under Diocletian, A.D. 294 ; but now indeed it no longer enables it to be counteracted ope exceptionis; an obligatio is destroyed, not by the bringing of an action, but only by its adjudication, so that we cease to read of the exceptio rei in iudicium deductae, which is swallowed up in the exceptio rei iudicatae, Dig. 9. 44. 3; 14. 5. 4. 5: see on Bk. iv. 13. 5 inf. Novatio necessaria is also said by Gaius to be produced by judgment, sententia, res iudicata; for its effects, which do not belong here, see Poste's Gaius, p. 447.
Among modes of extinction operating ipso iure, which are not here noticed by Justinian, are physical impossibility of performance arising ex post facto without default of the debtor, Dig. 46. 3. 92; ib. 98. 8; ib. 107 : cf. note on Tit. 19. 1 supr. ; and in some cases death of one of the parties to the contract, as in societas (Tit. 25. 5 supr.) and mandatum, (Tit. 26. 10 supr.) : cf. Gaius iii. 120, Dig. 4. 8. 32. 3, and Bk. iv. 12. 1 inf., which is important for a large class of obligations arising ex delicto. The operation of compensatio (set-off) is a matter of some little difficulty: see on Bk. iv. 6. 30 inf. Confusio (p. 275 supr.) operated in this way if the deceased's heir was the sole debtor or sole creditor to the obligation in question, because one of the prime requirements of an obligatio, two persons, is no longer satisfied, Dig. 46. 3. 95. 2 ; but this would be exemplified under Justinian only when the heres, being debtor or creditor of the deceased, did not make an inventory, see p. 277 supr. Where the heir was one of two or more correal or solidary debtors or creditors of the deceased it was otherwise: see Dig. 46. 1. 71. pr. cited in Excursus VII. inf.
est et in conductione et locatione et omnibus contractibus, qui ex consensu descendunt, sicut iam dictum est.
Of modes of invalidation whose effect is produced only ope exceptionis the most common are prescription (Bk. iv. 12. pr. and notes, inf.), capitis deminutio (note on Tit. 10. 3 supr.), beneficium competentiae arising upon a cessio bonorum (p. 377 supr.), and formless release or pactum de non petendo (Bk. iv. 13. 3 inf.) if absolute, i.e. not binding for a time only, or conferring rights upon the debtor only and not upon his heir. An informal acceptilatio was construed as a pactum de non petendo, if the creditor's intention was really to release the debtor, Dig. 2. 14. 27. 9. The obligations involved in the actiones furti and iniuriarum were dissolved ipso iure by agreement not to sue, Dig. 2. 14. 17. 1. Transactio or compromise, by which two parties who affirm that they each have claims against the other mutually surrender somewhat of their alleged rights in order to remove uncertainty and narrow the issues, implied a pactum de non petendo, Dig. 2.15. 16, Cod. 2. 4. 17 ; ib. 24. The same result ensued from compromissum, an agreement to refer a dispute to arbitration, Dig. 4. 8. 13. h
ORIGIN AND DEVELOPMENT OF BONORUM POSSESSIO.
The most tenable theory upon this subject seems to be that its germ is to be found in the judicial regulation of Possession as preliminary to an hereditatis petitio, and that, as such, it was merely the temporary right to represent the deceased until the suit was finally decided. In support of this view, it is to be observed that hereditatis petitio was a real action or vindicatio, tried originally by sacramentum, later by formula petitoria or sponsio, of which a prominent feature was the award of possession of the object of litigation pending the proceedings (vindiciarum datio, Gaius iv. 16, 17), upon which the rdle to be played by the two parties respectively, as plaintiff or defendant, depended. This interim possession of an hereditas, the original embryo of bonorum possessio, is called by Cicero hereditatis possessio, an expression which survives even in Dig. 37. 1. 3. 1. In an action for the recovery of an inheritance, which, being an universitas, a res incorporalis, could not be possessed, it was impossible to determine the vindiciae in what was probably the usual manner, viz. to award them to the claimant who was in possession at the commencement of the proceedings; accordingly, it is supposed that the praetor decided the question here in favour of the party who prima facie seemed to have the better title, i. e. who produced in his favour a prima facie valid testament (tabulas septem signis signatas), or, if there were no will, thc nearest intestate heir; cf. Cic. in Verrem II. lib. i. 44-46, from which it is clear that the two earliest kinds of bonorum possessio were secundum tabulas and that of the legitimi, 'posteaquam ius praetorium constitutum est, semper hoc iure usi sumus: si tabulae testamenti non proferrentur, tum, uti proximum quemque potissimum heredem esse oporteret, ita secundum eum possessio daretur.' A bonorum possessor so constituted could, as representative for the time being of the deceased, use the interdict quorum bonorum and fictitious actions for the recovery of his property; though, if defeated in the hereditatis petitio, he was bound by praedes or by stipulation to restore everything, Gaius iv. 16. 90.