Page images

3 Agerius : 'habeo acceptumque tuli. Praeterea novatione tollitur obligatio. veluti si id, quod tu Seio debeas, a Titio dari stipulatus sit. nam interventu novae personae nova nascitur obligatio et prima tollitur translata in posteriorem, adeo ut interdum, licet posterior stipulatio inutilis sit, tamen prima novationis iure tollatur. veluti si id, quod Titio tu debebas, a pupillo sine tutoris auctoritate stipulatus fuerit, quo casu res amittitur: nam et prior debitor liberatur et posterior obligatio nulla est. non idem iuris est, si a servo quis stipulatus fuerit : nam tunc prior proinde obligatus manet, ac si postea a nullo stipulatus fuisset. sed si eadem persona sit, a qua postea stipuleris, ita demum novatio fit, si quid in posteriore stipulatione novi sit, forte si condicio aut dies aut fideiussor adiciatur aut detrahatur. quod autem diximus, si

quired, be released in this manner. This, however, was not always the object of the Aquilian stipulation, which, it is clear, was not unfrequently employed as a comprehensive novation, the duties created by which were intended to be, not released, but performed, Paul. sent. rec. 1. 1. 3, Cod. 2. 4. 3, Dig. 2. 15. 2 ; ib. 9. 2. In the stipulation itself, as here presented to us, the following possible claims are comprised : those arising from contracts whether stricti iuris or bonae fidei (dare, facere), whether present or future (oportet, oportebit), and whether existing and actionable at once, or existing but not yet actionable (praesens in diemve); those enforceable by real (petitio) as well as by personal action (actio), whether now (est) or in the future (erit), and by extraordinaria cognitio (persecutio) no less than by ordinary action at law, and whether the promisor has merely detention (habes, tenes) or has or has had civil possession (possides, rossedisti). The omission of the word praestare in the form of personal action (dare facere oportet) shows that the author did not intend to include obligations arising ex delicto ; and the phrase 'dolove malo fecisti quominus possideas' refers to the dominus' real action against a person who had fraudulently destroyed or conveyed away a res aliena. This was first given by the SC. Juventianum, Dig. 5. 3. 20. 6; 6. 1. 27. 3, so that the words cannot have formed part of the original Aquilian stipulation, and do not even appear in the form of it given by Florentinus in Dig. 46. 4. 18. 1. In the acceptilatio of Justinian's text the words 'acceptumque tuli' are superfluous (see $ I) and must not be taken to refer in any way to the literal contract or any other system of accounts. As Mr. Poste remarks, the narrative form (stipulatus est, spopondit, interrogavit), in which the transaction is expressed by Justinian, properly belongs, not to the stipulation and acceptilation, but to the cautio in which they are embodied or recorded.

$ 3. ‘Novatio est prioris debiti in aliam obligationem vel civilem vel 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 VIII 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 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 51., 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 51. 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, hypothecs, 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 am

plius 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 ότι ποιεί νοβατίωνα ου μόνον το τίκτεσθαι φυσικήν ένοχήν, αλλά και το υπειναι πρόσωπον απρόσωπος δε ο δούλος.

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 of a surety (cf. Dig. 2. 14. 30. I); 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 in 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 pristino 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 iji, 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. I 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. i 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. I.

« PreviousContinue »