INSTITUTE OF THE LAW OF SCOTLAND, IN FOUR BOOKS, IN THE ORDER OF SIR GEORGE MACKENZIE'S BY JOHN ERSKINE OF CARNOCK, Esq. SOMETIME professor of SCOTS LAW IN THE UNIVERSITY OF A NEW EDITION, With Additional Notes. BY JAMES IVORY, Esq. ADVOCATE. IN TWO VOLUMES. VOL. II. EDINBURGH: PRINTED FOR BELL & BRADFUTE. [DEDICATION OF FIRST EDITION.] ΤΟ THE RIGHT HONOURABLE ROBERT DUNDAS OF ARNISTON, LORD PRESIDENT OF THE COURT OF SESSION, THE FOLLOWING SHEETS ARE RESPECTFULLY INSCRIBED, BY HIS LORDSHIP'S MOST OBEDIENT, AND MOST HUMBLE SERVANT, THE EDITOR. INSTITUTE OF THE LAW OF SCOTLAND. BOOK III. TIT. I. Of Obligations and Contracts in general, and of Contracts to be perfected re. T HE general method proposed to be observed in this institute, was, to treat, first, Of persons; 2dly, Of things or rights; and, 3dly, of actions. The law of persons hath been handled in the first book; and that of heritable rights in the second. Moveable rights fall now to be explained, the doctrine of which depends chiefly on obligations. TITLE I. Moveable rights. Definition of 2. An obligation may be defined in our law, as it was by the Roman, a legal tie, by which one is bound to pay or perform obligations. something to another. The debtor in the obligation is commonly called with us the obligant or granter; and the creditor, the receiver, or grantee. In the English law, the debtor gets the name of the obligor; and the creditor, of the obligee. Every obligation on the debtor implies an opposite right in the creditor, who is entitled to demand performance; so that what is an obligation or burden in regard of the one, is a right with respect to the other. From the above definition, the essential difference may be perceived between rights that affect a subject itself, which are called real, and those which are founded in obligation, or, as they are generally styled, personal. A real right, or jus in re, whether of property, or of an inferior kind, as servitude, entitles the person vested with it to possess the subject as his own; or, if it be possessed by another, to demand it from the possessor, in consequence of the right which he hath in the subject itself: whereas the creditor in a personal right or obligation has only a jus ad rem, or a right of action against the debtor or his representatives, by which they may be compelled to fulfil that obligation, but without any right in the subject which the debtor is obliged to transfer to him. 3. It is said in the definition, to pay or perform. The first, to pay, relates properly to subjects which the debtor is bound to deliver to the creditor; and is restricted, in the common use of the word, to sums of money. The other alternative, to perform, includes all articles to which a debtor may be obliged, consisting in To what subjects they relate. |