CHAPTER III. OBLIGATIONS. §1.-Nature and objects of obligations generally. AN obligation is, strictly speaking, a legal tie connecting two persons together in such a way that one of them is liable to perform towards the other a legal duty, which admits of being expressed in a monetary form, that is, in the shape, if not performed, of "liquidated L. 9, § 2, D. damages." (xl. 7). The right answering to the liability has thus been called a jus in personam, or right against a particular and definite person, and is thereby opposed to a jus in rem (including rights of ownership, franchises, public dignities, and the like), in which the right, before it is infringed by any one, is exercisable not more against one person than another. The expression jus ad rem relates to that portion of the whole class of jura in personam which involve the acquisition of a right of ownership as the original basis of the obligation; as, for instance, the right which arises under a contract of sale. The right thereby accruing to have the thing effectually conveyed, and to have a good title made out, is a jus ad rem (acquirendam). The term obligation itself suggests the analogy of a physical chain, and the analogy is followed out in all the affiliated terms. As Sir H. S. Maine says (“ Ancient Law," chap. ix.), "The image of a vinculum juris colours and "pervades every part of the Roman law of contract and "delict. The law bound the parties together, and the "chain could only be undone by the process called solutio, "an expression still figurative, to which our word payment "is only occasionally and incidentally equivalent. The "consistency with which the figurative image was allowed to present itself explains an otherwise puzzling peculiarity "of Roman legal phraseology; the fact that 'obligation "signifies rights as well as duties, the right, for example, "to have a debt paid as well as the duty of paying it. "The Romans kept, in fact, the entire picture of the legal "chain before their eyes, and regarded one end of it no "more and no less than the other." In accordance with this view, an obligation arose not only out of a voluntary engagement or casual monetary relationship between two persons, but also out of the liability cast by a testator, or by operation of law, upon an heir to pay legacies; and out of such accidental injuries or offences as were held to impose the duty of making restitution or penal compensation, as well as out of a variety of other situations. Before proceeding to consider the origins of obligations, it will be convenient to make some general remarks upon their objects, the parties to them, and the modes in which they could be extinguished. The objects of obligations may be considered under the several heads of (1) What the object must be. (2) Interpretation of the object. (4) Concurrence of obligations. (5) Order of privileged creditors determined by the object. (6) Impossible or illegal objects. (1) WHAT THE OBJECT MUST be. Subject to the limitation that the object of an obligation must admit of being ultimately reduced to, and expressed in, a monetary form, it might be almost endlessly diverse in character. But there were some objects of obligations which, in daily and in judicial experience, were so constantly recurrent that they gave occasion to the gradual formation of distinct groups of principles and rules, for the purpose of satisfying the reasonable expectations of parties. interested, and of promoting the general ends of justice. Thus the object of an obligation might be such as could not be precisely determined till later events, or the fulfilment of conditions, had reduced it to a certainty. To this class belonged such objects as involved choice as between one mode of performance and another, or dealings with things only generically described, or a dependence on the yet uncertain acts of a person to whom a binding promise has been given, or of any person other than the promisor himself. The most familiar object of an obligation was the payment of a sum of money, either ascertained or to be ascertained. It was decided that such an obligation was not fulfilled for any purpose by the payment, L. 24, § 1, D. even involuntary, of bad coin. (xiii. 7). A less definite but also very familiar object of an obligation was compensation for losses which might have been, or might hereafter be, incurred in the course of some transaction. The form of the liability incurred, in this case, was that of making good all that the other had staked in the transaction, and not only compensating him for actual losses but also satisfying his expectation of gain. An instance of the class of obligations thus arising is supplied by the liabilities incurred under the lex Aquilia, by which certain injuries to another's property had to be compensated by damages amounting to the highest value the thing injured had attained during the current year. (2) INTERPRETATION. The objects of obligations were either marked out precisely by the voluntary engagements of the parties to them, or judicially presumed from some situation or mutual relationship in which the parties found themselves; as, for example, where one happened to have paid to the other money afterwards found not to be due, and claimed a presumed obligatory right to have it restored. Or the objects were strictly defined by positive law, as where the ground of obligation was the succeeding to an inheritance, the being appointed guardian, or the committing an offence (delictum). But it might, and, in fact, very frequently must, happen that the terms of an agreement distinctly stated part of the object of an obligation, and yet it might subsequently appear from surrounding facts that there was another part which was intended, but not expressed. Or positive law might interpose to restrict the agreements of the parties, and by an arbitrary interpretation, as it were, force their will into certain predetermined directions. In all these cases, except the last, as well as in all the numberless cases in which uncertainty proceeded from the necessary or accidental deficiencies of language, from the imperfection of memory, or from the ambiguities attaching to all formal ceremonial, a choice had to be made between treating all that was alleged to have taken place as nugatory, and imposing upon it some meaning or other. The latter. course obviously recommended itself where part of what had taken place was unmistakable; and a reference had to be made--as in other cases of disputed interpretationto the ordinary character and routine of such arrangements, to the habitual dealings of the parties, or to the general policy of the law and custom of the country. (3) DISCOUNT AND INTEREST. The calculation of discount and interest, as an object of obligations, was partly a matter of private arrangement and partly of positive law, which came in either to supply the omissions of voluntary undertakings or to control their operation. Thus, where an appeal from a judgment seemed to be unreasonable, an obligation arose by which the loser of the appeal might be compelled to make good the difference. between the value of the debt as put out at interest, between the time of the original judgment, and the judg ment on appeal. So if a legacy of a certain amount were payable on the performance of some condi- L. 64, D. tion at a remote time, its present value was to (xlii. 1). be calculated by deducting from the amount specified the accumulating interest for the intervening period L. 66, § 1, before the condition was performed. (xxxv. 2). D. The amount of legal interest varied considerably at different periods of Roman history. In the time of Justinian, the general legal rate was restricted to six per cent. a year; for the class of eminent State officials known as "illustres," to four per cent., and for merchants and bankers, to eight per cent. In the cases of advances on goods at sea-but only while actually out of harbour-unlimited interest had been allowed (nauticum fanus, trajectitia pecunia), but Justinian restricted this interest Paul ii. (14, 3). in all cases to twelve per cent. Justinian's L. 26, § 1, C. (iv. 32). L. legislation vacillated on this subject in the 26, § 1, C. (iv. later years of his reign, but he finally left the 32). law in this state. Compound interest was not allowed, nor could a greater amount of accumulated interest be charged and recovered than equalled the principal. This topic will be reverted to again later on. (4) CONCURRENCE OF OBLIGATIONS. A number of really distinct obligations might either concur in time or coalesce, through an identity in their object, in such a way that it required fixed rules of law, or the exercise of judicial discretion, to distinguish and assign the rights and duties of the parties to them in their dealings with each other and with the outside public. Such obligations were those having one object, but more than one party (correi) on one side or the other. The usual rule was that payment by any one of the obliged parties put an end to the obligation. One person, however, might be only liable after a certain date or under certain conditions. The case was different with an obligation to which, on one side, parties were added by way of sureties (fidejussores). If one of these were sued for the whole debt, for |