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 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. certa. § 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. regard to negotia stricti juris (sup. p. 192). The rule is different in 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 § 64. a certain resemblance to contracts. Besides obligationes ex delicto we have the cases of so-called 'obligationes quasi ex delicto,' which arise from facts bearing a certain resemblance to delicts. § 65. A. CONTRACTUAL OBLIGATIONS. § 65. Introduction. Roman law adhered all along to the principle that not every promise which is intended to create an obligation is legally valid and actionable; but that, in order to make such promise valid and actionable at law, it is necessary that, in addition to the promise, there should be some ground recognized by the law ('causa civilis'). Hence the somewhat restricted sense in which the term 'contractus' is used in Roman law. A contract in the Roman sense, is not any declaration of consensus which is intended to create an obligation, but only a declaration of consensus which results in an obligation actionable by the civil law. An obligatory promise may become actionable by the civil law in one of four ways: (1) re, i. e. by the fact that, in addition to the obligatory consensus, there is performance by one party entitling him to claim counter-performance from the other (Real Contracts, § 66); (2) verbis, i. e. by the fact that the obligatory consensus is orally expressed in a particular form, viz. in the form of a question and answer (Verbal Contracts, § 67); (3) literis, i. e. by the fact that the obligatory consensus is expressed by an entry in the domestic ledger (Literal Contracts, § 68); (4) in certain exceptional cases the simple obligatory consensus, without more, may be actionable (Consensual Contracts, § 69). These four classes of contracts constitute the contractual system of Roman law. The oldest times did not possess the same variety of contracts. The most important contract in early Roman law is nexum, i. e. a solemn loan effected in formal terms (damnas esto dare) per aes et libram, in the presence of five witnesses and with the assistance of a libripens (sup. p. 26). By virtue of the self-pledge implied in nexum-the debtor is 'nexus' because he allowed the words 'damnas esto' to be pronounced over him-he (the debtor) § 65. becomes answerable with his own person for the repayment of the debt. On default, the creditor may proceed to execution by manus injectio at once (sup. pp. 157, 158, 210), and if no one appears to raise a vindicatio in libertatem on the debtor's behalf, the creditor may take him away as his bondsman for debt. It was on account of this stringent mode of execution that nexum continued to be employed even after coined money was introduced and the piece of aes weighed out by the libripens was thereby deprived of its value as money. The actual payment of the loan was henceforth a matter independent of the nexum, but the use of the forms of nexum continued to confer on the creditor (the lender) the full powers of execution which the early law had provided for. When subsequently a lex Vallia did away with the harsh effects of a personal liability incident to the contract of nexum, this contract fell into disuse. Nothing remained but an informal contract of loan called 'mutuum,' which came to be recognized as directly actionable. Mutuum was a real contract bearing the characteristic features of the new law-the jus gentium-which was, at this time, in course of development, and only retained a trace of its early associations in so far as it was treated as a negotium stricti juris, i. e. in so far as the sole duty of a debtor in a contract of mutuum, as such, was to repay the exact amount he had received, neither more--he was, for example, never bound to pay interest (inf. § 67)—nor less. Besides nexum, but designed for quite different purposes, a second kind of contract came into use, viz. the so-called 'mancipatio fiduciae causa,' which gave rise to an actio bonae fidei called the actio fiduciae (sup. p. 36). Just as a mancipatio fiduciae causa could be utilized for purposes of a contract of pledge (sup. p. 272), so it might be utilized for purposes of a depositum (the thing being mancipated to a friend. fiduciae causa), or of a commodatum, in short, for purposes of any kind of contract involving the giving up of a thing subject to a duty to restore it (e. g. mandatum, hire). The drawback in all these cases was that, though the practical result contemplated by the parties was never to make the person receiving the thing owner, but only pledgee, depositarius, commodatarius, and so forth, as the case might be, he U |