with it no infamy. The general duties, liabilities, and rights of the assignee were the same as those of the manager of the estates of minors and the insane. The other method, that by granting a delay not exceeding five years (quinquennales inducia), was still more beneficial to the debtor in cases in which it could be resorted to at all. The creditors were, on a special application by the debtor to the emperor, required to choose by a vote of their body, taken under the supervision of a magistrate, whether they would proceed at once to a surrender and sale of the debtor's estate, taking their chance as to how far the available assets would go, or whether, as an alternative, they would give their debtor a period not exceeding five years, during which his estate and person would be protected, and after which he might be expected to be able to pay his debts in full. For the purpose of voting, the creditors were estimated, first, according to the value of their debts; and then, if the debts were of equal value, according to the number of the creditors; and, if there were an equal number of votes for and L. 2, 3, 4, C. (i. 19). L. 8, against delay, the presiding magistrate was C. (vii. 71). required to adopt the "more humane" course of granting delay. In the case of all these classes of proceedings, the conduct of the debtor, as affecting their validity in his favour, was required to be bona fide and free from just imputations of misappropriation or of fraudulent preference L. 1, § 2, D. before or during bankruptcy. The mere state(xlii. 8). ment of his property by an indebted person, was not ipso facto invalidated apart from positive proof of fraudulent intention; but the proved knowledge by a debtor of the extent of his own indebtedness at the time of dealing with his property for his own use, irrespective of his creditors, might supply such positive proof in the shape of L. 17, § 1, D. an irresistible presumption of fraudulent inten(xlii. 8). tion. In such a case the property might be followed and claimed by the creditors or their represenL. 38, § 4, D. tative, into whosoever hands it had come (Pauliana actio, interdictum fraudatorium). (xxii. 1). The order in which creditors regarded as "privileged had to be paid has already been described in connection with the possible collision in the objects of several co-existing obligations (p. 174). (9) MERGER (Confusio). L. 75, D. (xlvi. 3). An obligation could be extinguished by the two parties becoming, through the happening of ulterior events and the operation of law, one and the same. This took place, for instance, when, on an intestate or testamentary succession, a creditor became his debtor's heir or a debtor his creditor's. So when, in consequence of a sale of an intestate or insolvent estate, a creditor became his own debtor, or when a debtor and creditor entered into an universal partnership (societas omnium bonorum) in which there could no longer be distinct and opposed interests. Where, in case of suretyship, the creditor stepped by succession into the place of the principal debtor, the whole obligation, together with its attending securities, were extinguished; but where the creditor only succeeded to the place of a surety, the principal obligation remained unaffected, the subsidiary obligation L. 21, § 3, D. of suretyship alone being extinguished. (xlvi. 1). Obligations were similarly extinguished by merger when, in the case of joint promisees or promisors (correi), one became heir to one of the rest, or one L. 93, § 2, D. made all or some of the rest his heirs. In such (xlvi. 3). cases the number of correal obligations was accordingly reduced. (10) JUDICIAL PROCESS, OATH, PRESCRIPTION. So soon as an obligation had become a matter of litigation, and a decision was pronounced in favour of supporting it, all ulterior proceedings must take place on this decision (res judicata), and the nature and circumstances of the original obligation were henceforward See references, left out of account. There is reason to be- Mayntz, lieve, however, that if the judgment were after- $ 382. wards successfully impugned, a "natural" obligation was regarded as still subsisting, which, as will be explained shortly, was valid and valuable for many purposes. A parallel mode of extinguishing obligations was by the oath tendered before, or in course of, litigation by one party to the other. If the oath were accepted and taken the fact in litigation was henceforward no longer the existence of the obligation, but the question whether the oath had been taken or not. The taking of the oath was regarded as an efficient discharge (acceptilatio), and it liberated all the subsidiary securities. It has sometimes been doubted whether prescription which barred an action, also so far extinguished the obligation as to prevent even a natural obligation taking its place. § 11, J. (ii. 6). But inasmuch as the whole purpose of the institution. of prescription related to litigious rights and procedure, and, furthermore, Justinian extended the time of prescription for subsidiary obligations given as securities eighteen L. 7, C. (vii. years beyond the time for the principal obligation, there can be no doubt that a natural 39). obligation survived. § 4-Classification of Obligations according to their Origin. It being borne in mind that an obligation, strictly speaking, meant nothing more than a duty and a corresponding right existing between two persons individually determined, the modes in which such a relationship might be created were almost co-extensive with the whole field of law. The most prominent modes, however, in which obligations are created, are voluntary engagements, whether one-sided or by way of joint agreement, whether by convention or by wrong-doing. These modes of origin are, indeed, so prominent, that in Gaius' and Justinian's Institutes they are treated as though they, together with a few facts analogous to them (quasi-contractus, quasidelicta, variæ causarum figura), constituted the sole modes. in which obligations arose; but, in fact, one of the most obvious modes of origin is that of the operation of the law of intestate succession, or of a testator's will or codicil. In both these cases the heir was laid under a variety of obligations towards a variety of classes of persons, as creditors, legatees, and persons for whom they held property in trust. Similarly guardians of various kinds, and their wards, had cast upon them by law or by will a vast assemblage of reciprocal obligations. But all this important class of topics finds its proper place in the account of the law of succession or of family law. Wherever, again, a magistrate directed one person to make a payment to another, or to give security, or to bind himself to another, or another to himself by a judicial oath, an obligation is created. A more important division of obligations, inasmuch as it reacts on their binding character, is that based on the possible diversity of their origin, whether from the old civil law, or from the Prætor's equity, following the broad principles of practical justice laid down in his edict. But here, again, a fresh division presented itself, inasmuch as the Prætor recognized some agreements (pacta prætoria), as creating obligations valid for all purposes, and others, based merely on humane considerations, as creating obligations only good by way of plea or defence, or good for retaining money received, not for claiming money due (naturales obligationes). It was in view of these various, though disparate, origins of obligations that Modestinus said that L. 52, D. "we are bound either by matter of fact (re) or (xliii. 7). by words, or by fact and words together, or by consent, or by statute law (lege), or by prætorian law, or by compulsory circumstances (necessitate), or by wrong-doing." "Compulsory circumstances" (necessitas) are illustrated by the case of the "necessary" heir, that is, the heir who, being a slave, had no alternative but to enter on the Gaius (ii. 153). inheritance and accept his freedom. It is obvious that this classification is illogical and based on cross-divisions; but it is at least serviceable as showing that, in spite of the prominence given in the Institutes to contracts and delicts as grounds of obligation, the best Roman lawyers were fully awake to the broader and distinctive character of an obligatory relationship as brought into existence by a great variety of facts. The grounds of obligations recognized in one department or another of Roman law are exhibited in the table on page 199. The consideration of the various topics included in this scheme, so far as they do not more properly belong to other heads, as is the case with guardianship and inheritance, will conveniently be taken in the following order: I. Civil and natural obligations. II. Voluntary engagements comprising: I. Single-sided engagements (pollicitatio, votum). 2. Two-sided engagements (contractus, pacta). Certain important groups of contract looked at collectively. (a) Bankers' contracts. (c) Insurance contracts. (1) Formal agreements (contractus). (a) By passing a material thing (re) or onesided execution. (b) By solemn words (verbis). (c) By writing (scriptura). (d) By sufficiently ascertained consent (con sensu). (e) By act or acts importing in certain special cases reciprocity of expectation. (2) Informal agreements (pacta). (a) Supplementary (adjecta). (b) Operating by force of special statutes (legitima). (c) Prætorian. III. Acts of wrong-doing (delicta); remarks on criminal law. IV. Facts analogous to convention and to acts of wrong-doing (variæ causarum figuræ, quasicontractus, quasi-delicta). |