Page images

tion founded in morality, but not surnishing ground for suit: A, can set this off Dig. 16.2. 6. de compensationibus." Usury (interest for monev) was not supported by the Roman law, unless where the loan, had furnished a profit; Cod. 4 37.26. Cod. 4. 34. 4. or where it was judicially decreed nomine poenae for improper detention of the sum lent, or on account of fraud. Dig. 23. 1. 1. and 22. 1. 17. 3. Suppose, however, A, lends B a hundred dosiars upon interest, and B pledges a diamond ring for repayment: the promise to pay interest simply would be notóe fact, but still as promises ought to be performed. Dig. 2. 14. 1. A, may retain the diamond, till interest as well as principal b. paid. Cod. de usurls. 1. 4. As to side jussion. An infant aim ost of age makes a promise, unsanctioned by his tutor: this would support no action. A fri nd of the infant becomes his security for the performance. Here, not withstanding the maxim accessorium sequitur suum principale, the fide jussor or guarantee, is liable, because it is the dictate of natural equity that a promise should be kept, although positive law will not enforce it. Dig. 46. 1, 2 and 6. Constitutum, is a promise before the praetor to pay what was previously due, either by the promissor, or some other person for whom he becomes surety. Such a promise so solemnly made, was supported by the praetorian action de pecunia constituta, Dig. 13.5.1. 7, owia grave est fidem fallere, maxime to geminata sides est. Movation. Dig. 46. 2. 1. Vovation, is the transferring or convertion of one obligation into another cbligation, or from one person to another person. Thus, A owes B a hundred dollars: this debt is transferred by consent to a pupil who promises without authority of the tutor: is he bound: Yes: for the promise of the pupil though it will not support a suit, is founded upon a premise that would support ene: and this natu, al obligation of the pupil to pay, is converted into a civil obligation, by being substituted for a civil one : notwithstanding, Dig. 46.2. 20. which theogh it seems to loo': the other way, does not furnish an objection. Pipilio attod si'i doctor, non potest sine #utoris auctoritate azvare ne sci'icet conditionen stian deteriorem faciat: but this is for his own sake, and does not apply to a case when the lega' right of a third person is involved in ti.e pact. Repetition, or redemand of money paid without regular compulsion of law, is prohibited where an imperfect obligation intervenes. Dig. 44. 7. 10. A by nude pact, promises to pay me a hundred dollars: h” bays it to me; but reponting, sues for the recovery, by condictia indebiti (action for money had and received). He cannot recover it,

[ocr errors]

for he ought to keep his promise, and he has put me in possession of the money which he was under a natural obligation to give me, though not a legal one. Dig. 12. 6. 14 and 66 For the condictio indebiti would not avail against money paid, which ex equo et bono ought to have been paid. Dig, ub. sup. This is like the cases of Brown v. M'Kinnally, 1 Esp. Ca. at N. P. 279. Burdon v. Webb, Ib. 5:28. Cartwright v. Rowley, Ib. 723. Whether an express promise founded on an antecedent moral obligation will support an assumpsit is discussed at length in note (a) to Wenmall v. Adney, 3 Bos. and Pull 249. This doctrine of the Roman law is adopted by Lord Mansfield, in Moses v M'Farlane, 2 Burr. 1005. Dale v. Sallet, Burr. 2133. and though the particular case of Moses v. M'£arlane, has been shaken by Jarriot v Hampton, 7 Term. Rep. 269, yet the general doctrine has never been denied. § 1. Divisio prior. p. 244. The practorian, is as much a part of the Roman law, as the civil law. By the latter, technically speaking, is meant the law of the 12 tables, the Plebiscites, the senatus consulta, the imperial constitutions, and the responsa peredentum. The praetorian law, jus honorarium, is composed of the equitable decrees of the praetors at various times: to which we owe many obligations not strictly comprehended in the above named sources of the civil law, such as the tonstitutum, hypothecation, &c. § 2. Divisio posterior. p 244. - By the Roman law there are two grand divisions of private conventions, to wit, CoNTRActs and PActs. Contractus est Conventio habens certum momen, vel causam, sua natura obligationem ad agendum, offtacem producens. Dig. 2. 1 1. 7. 1 and 2. Contracts between parties are sonumercus, and so various, that the civil law, unable to assign a specific denomination to every one, classed by appropriate and distinct names, those contracts only, which were most generally in use in society. Hence contracts were divided into nominate and innominate. Nominate contracts were such as the Commodatum,” Mutuum, Deposium, Pignus, Stipulatio, Emptio Wendatio, Lo* Commodatum: the loan of a specific thing, of which the ownership is not changed, to be returned in good plight: as of a house, a horse or a book. Asuttium : a loan to be returned in kind, as money, grain, fruit, &c. Depositum : bailment of a thing to be kept without reward for keeping it, and to be returned in good plight. Pignus: a pawn of a moveable for security of a co, ditor. Hypotheca : is a mortgage of the right to real property, or things incorporeal; the debtor

eatio, Conductio, Bmphyteusis, Societas, Mandatum, &c, all which will be noticed in their turn. These had their appropriate remedy by action founded upon them. Some of them derived their obligation from natural, some from civil, and some from praetorian law. Nominate contracts had also a four-fold classification. 1st, Ex re, from something done. 2dly, Ex verbis, from something said. 3dly, . Ex literis, from something written. 4thly, Ex consensu, from something agreed to. - * In contracts also were considered, the substance, the nature, and the accidental parts of the contract; but I do not find any important conclusion dependant on this division. Contracts were also divided into equitable contracts, ex æquoet bone, and contracts stricti juris. Thus, if I sell an estate and deliver possession, and the money is not paid me till long after it is due, I have a right not merely to the principal, but also to interest for the detention of it. To this class of contracts may be referred those of our own law that admit of compensation when not literally fulfilled, and the cases of Cypres performance. Contracts of strict construction, are those where the terms are precisely settled by the parties themselves; as the cases of damage liquidated by the previous agreement of the parties, as so much per acre for the ploughing up of meadow land.&c. Innominate contracts, are those innumerable agreements, that depend upon and include the peculiar circumstances that form the object of them, and for which no certain or precise remedy was appointed, but a general action on the case only : actio in factum prescriptis ver$is. Dig. 2. 14. 7.2. Dig. 19.4. and Dig. 19.5. But for the more convenient division of this kind of contracts they were classed thus. Do ut des : I give that you may give. Do ut facias : I give that you may perform. FAcio ut des: I perform that you may give. FAcio ut facias I perform that you may performThe first is sale and barter: the second payment for work and labour to be done, or services to be performed : the third work and labour, or services, to receive payment: the fourth work and labour performed, or services rendered, for work and labour to be performed or services rendered. This last had the remedy by action de dolo malo, annexed to it. Dig. 4. 3. 18.

continuing in possession. Stipulatio; a verbal contract by question and answer. Emptio Wenditio - buying and selling. Locatio Conductio o letting and hiring. Emphyteusis : an improving lease. Mandatum: . a commission or power. $ocietas: partnership.

• In all these innominate contracts, the obligation to performance on one side, is founded on actual performance by the other. Otherwise it amounts to no more than a mere promise, a covenant, an agreement, & Pact, which the parties may be under a natural, but under no civil obligation to perform. Dig. 2, 14.7. 4. such a pact is called nude (nudum pactum) when no consideration (causa) attaches to it; but obligation arises, when the one side by performance in conformity to the agreement, suffers a loss, privation or inconvenience, or the other side by accepting becomes benefitted and a gainer, either as principal or surety. : Thus, I promise to give you one horse in exchange for another. This is not binding on either side, till one of us perform his part of the agreement. Then and then only, a consideration attaches to the pact, and an obligation arises thereupon coextensive with the consideration. This is like our doctrine of conditions precedent, where performance, or tender of performance with a toutstems prest, must be set out. In all these innominate contracts and nude pacts, time was allowed to the parties to reconsider their agreement: locus poenitentia. Thus, if I tender my horse in lieu of a horse agreed to be given me by my neighbour, and he takes no step thereupon to perform his part of the agreement, I can send for my horse back and refuse to accede to the bargain. In contractibus nominatis, ptenitentic locus est, rebus saltem integris, ita ut is qui dedit o' causam, alium statin obliget, ipse vero et non obligatur priusquam alter conventionem impleverit. Quapropter rebus integris quod dedit potest repetore, per condictionem causa data causa non secuta. Qua quiem acui, non nascitur ex contractu, sedex ma-. turali aequitate, qua non patitur rem mean esse peoes alium sine causa. God. de condict. causa data, causa non secuta. Bio, 12. 7. * There are some good observations on the locos ptonitentia in Lord Kaimes's principles of equity Book, 1. part 2. sect. 7. and many cases put where it appears to one that in equity it ought to be allowed. Pacts, were divided into civil, protorian and simple. Civil were those to which a civil right of action was subsequently attached, as to the Donatio inter vivos by Justinian. Pretorian, such as the praetor gave a right of action upon, as the HvDotheca, and the constitutum. Simple, such as raised a natural obligation only to performance. * The doctrine of Nudum pactum has been long recognized in the English law. Bracton (who as Justice Wilmot says, interwove a great many things out of the Roman law) divides pacta, conventa, into nude pacta and pacta vestita, Ch. 1. de actionibus. See also Br. ab. tit. *ction surle case. 40. Ib. Bette pl. 36.79. 266. 11 H. 4, 32. a. 9 H. 5.

14. 3 H. 6. 35. 44 E. 3. 21. Sharrington and Pledall v. Strotten Plow. 302. 308. 309. 7 and 8 El. joselyn v. Laciere. 12 Mod. 295. . Wilmot in Pillans and Rose v. Van Mierop and Hopkins, 3 Burr. 1663, inclines to think that where an obligation is deliberately entered into by writing, that there can be no nudum pactum. The good sense of this opinion is rather pettishly contradicted by Skinner in his argument before the lords in Rann v. Hughes, reported in Br. Parl. Ca. and in the note to Mitchinson v. Hewson, 7 Term Rep. 350. a. which settles the technical distinction of contracts, into contracts by parol (including unsealed written contracts) and contracts by specialty. It is of no consequence how the law is, when it is once known; but it was surely an allowable mistake to suppose that a contract deliberately put down in writing, was not a parol contract. Wilmot seems to have had in his mind the obligatory effect given by the Roman law where the prescribed forms of verbal stipulations were observed. See post. Inst. 3. 16. 1. De verbis stipulationum. But among the Romans, the practice was to put all nominate contracts and stipulations in writing, which when carried to a magistrate were inserted interacta, registered or recorded ; and the parties had a copy delivered to them under seal. This was not the case with mere pacts or promises, which might intervene by means of any informal words, and between absent parties. Justice Wilmot's opinion I apprehend is law in most nations on the continent. See the references in Wood civ. law 206. Although in the words of the lord chancellor in Middleton v. Kenyon, 2 Vez. junr. 408. “a bargain without consideration is a contradiction in terms and cannot exist;” yet in England this does not apply to 1st, Bargains entered into by writing under seal. 2dly, Mercantile or rather negotiable paper when once negotiated by indorsement: for as between the maker of a note and the payee, and the drawer of a bill and the payee, equitable defences may be set up. The exception depends upon its negotiability, and that negotiability is given by its being put: into circulation by indorsement. . . With respect to other parol contracts, whether verbal or written, we have adopted in substance the civil law doctrine on this subject, and the want of consideration will defeat a contract: but * Any labor, loss or inconvenience sustained by the plaintiff at the request of the defendant—any express promise to pay or perform what the promissor was under a moral obligation of paying or performing; whereon see Wennal v. Adney, 3 Bos. and Pull. 247. Any promise made upon the strength of a consideration already passed, but originally entered into at the request of the promissor—or in consideration of services

« PreviousContinue »