Imp. Diocl. Sed ita demum oblatio debiti liberationem parit, si eo loco, que debetur solutio, fuerit celebrata.-C. 8, 42 (43), 9.'

Pomp. Sed videndum est, ne posterior mora ei damnosa sit. Quid enim si interpellavero venditorem et non dederit id quod emeram, deinde postea offerente illo ego non acceperim? sane hoc casu nocere mihi deberet. Sed si per emptorem mora fuisset, deinde cum omnia in integro essent, venditor moram adhibuerit, cum possit se exsolvere, aequum est posteriorem moram venditori nocere. -D. 18, 6, 18 (17).

§ 110. ESTIMATE OF THE COMPENSATION TO BE RENDERED FOR INJURY. PERSONAL INTEREST.

Compensation for injury is afforded by the render of an amount by the which the property of the party injured would be greater if the harmful act or event had not occurred, or the obligation had been duly fulfilled. This is Personal Interest (id quod interest: a § 107. ‘quidquid dare facere oportet'; 'quanti ea res est')' in See formula the wider sense; at one time an original, at another consequential, at a third time collateral, object of the obligation.

Underlying the estimate, according to the difference of cases are

in the release of Stichus, promised by him, can amend such delay by a subsequent tender.

1 But the tender of the debt only operates a release if perfected at the place where payment is due.

2 But it requires consideration whether subsequent delay be not prejudicial to him. For how if I have warned the vendor, and he has not made over what I had purchased, and, upon subsequent tender by him, I have not accepted it? In this case I would of course have to bear the loss. But if the delay have proceeded from the purchaser, and afterwards, when all was unimpaired, the purchaser has incurred delay, whilst he was in the position to fulfil his obligation, it is fair that his subsequent delay should cast the loss upon the vendor.

in § 198.

BOOK III.

Pt. I. Ch. II.

a Sc. in actione furti.

(1) the general, material or market value of the object withdrawn or to be performed (vera rei aestimatio, verum rei pretium).

Ulp. Haec verba :" QVANTI EAM REM PARET ESSE non ad id quod interest, sed ad rei aestimationem referuntur.-D. 50, 16, 193.1

(2) Or, as a rule, the special pecuniary value which it bears for the person injured (creditor): the Personal Interest, id quod interest' in the narrower sense, omnis utilatas; so that the reparation to be afforded comprehends both positive and negative, direct and indirect damage, provided that it stands in a casual connection with the harmful act or event, or non-fulfilment of the obligation.

:

Id. Si res vendita non tradatur, in id quod interest agitur, hoc est quod rem habere interest emptoris; hoc autem interdum pretium egreditur, si pluris interest, quam res valet vel empta est.D. 19, I, I pr.

Paul. Cum per venditorem steterit, quominus rem tradat, omnis utilitas emptoris in aestimationem venit, quae modo circa ipsam rem consistit; neque enim, si potuit ex vino puta negotiari et lucrum facere, id aestimandum est.-1. 21, § 3 eod.3 (3) On the other hand, the so-called pretium affectionis, which is purely personal and not pecuniary, does not come into account.

1 These words, 'As much as it appears is the value of such thing,' are not referable to the personal, but to the material value.

If a thing that has been sold is not delivered, proceedings are taken for the value to the individual, that is, the value of its possession to the purchaser; now this sometimes exceeds the selling price, if more value is put upon it than the thing is worth or the purchase-money.

3 When it shall be owing to the vendor that he does not deliver the thing, the whole advantage to the purchaser enters into the estimate, which only turns on the thing itself; for if he could trade and make gain with wine, for instance, that is not to be estimated.

Id. Si servum meum occidisti, non affectiones aestimandas esse puto (veluti si filium tuum. naturalem quis occiderit, quem tu magno emptum velles), sed quantum omnibus valeret. Sextus quoque Pedius ait, pretia rerum non ex affectione. . . singulorum, sed communiter fungi: itaque eum, qui filium naturalem possidet, non eo locupletiorem esse, quod eum plurimo, si alius possideret, redempturus fuit.-D. 9, 2, 33 pr.1

The personal interest is ascertained by evidence and judicial assessment, under certain conditions also by 'iuramentum in litem' (sworn assessment)."

Marcian. In actionibus in rem et in ad exhibendum et in bonae fidei iudiciis in litem iuratur. -Sed iudex potest praefinire certam summam, usque ad quam iuretur.-D. 12, 3, 1. 5 pr., § 1.

Paul. Interdum quod intersit agentis solum aestimatur, veluti cum culpa non restituentis aut non exhibentis punitur; cum vero dolus aut contumacia non restituentis vel non exhibentis, quanti in litem iuraverit actor.-1. 2, § 1 eod."

1 If you have slain my slave, in my opinion no estimate is to be made of personal attachment (as, for instance, if any one has slain your natural son, whom you would have purchased for a bigh price), but only of such value as he possessed for anybody. S. P. also says that the value of things is estimated not according to the affection of individuals, but according to their general use; that, accordingly, a person who possesses a natural son is not better off by the fact that, if another possessed him, he would purchase him at a high price for himself.

2 In real actions, and in those for production, and in actions of good faith, an oath of assessment is sworn. But the arbitrator can prescribe a certain sum to which the oath is directed.

3 Sometimes merely the interest of the plaintiff is assessed, as when a fault of the person who does not make restitution or does not produce is punished, but if the bad intention, or the disobedience of him who does not make restitution, or does not produce (is punished, the assessment is made for as much) as the plaintiff shall have estimated it upon oath.

BOOK III

Pt. 1. Ch. 11.

a D. 6, 1, 68, and infra,

BOOK III.

Pt. I. Ch. II.

a See note on

§ III. SUBJECTS OF OBLIGATION, IN GENERAL.

Every obligation is a legal relation between two persons who stand in the relation to one another of Debtor and Creditor. But their standing towards § 104, ad init. each other can be diverse.

§ 32, ad init.

See note on

§ 24.

(1) One person can be Creditor alone, the other merely Debtor, which is a UNILATERAL obligation. Such are all obligationes ex delicto, and such obligations arising from legal transactions as are stricti iuris (e.g., Loan, stipulatio).

(2) Each person can be at the same time Creditor and Debtor, which is a BILATERAL obligation. Such are all bonae fidei obligationes.

Again, the bilateral relation is diverse.

(a) It finds its grounds in the essence of the obligation in question, which is a necessary, essentially bilateral, or mutual obligation, ultro citroque obligatio-so that each of the two subjects is always and necessarily Creditor and Debtor, and the claims and duties on both sides, or performance and counter-performance, cross one another and condition each other. Examples of this are afforded by Sale and Partnership.

(3) Or it rests upon casual circumstances, so that one is originally and essentially the Creditor, the other is Debtor, but the latter can have casual and secondary counter-claims upon the former, which do not touch the essence of the obligation. These relate to indemnification (e.g., for outlay), and necessarily are made available by an actio contraria (cross action) flowing out of the contract: imperfect, bilateral, or unilateral obligations with an actio contraria (e.g., mandate, commodatum).

In most cases there is on one side a single debtor, and on the other a single creditor; but there can also be a plurality of subjects, upon the active or the

passive side. And herein we have to distinguish the following cases.

Each of several creditors or debtors has to require, or to perform, a share of the object that is owing and is juristically divisible; which is an 'obligatio plurium pro parte s. rata.' Here are, accordingly, as many separate obligations as creditors or debtors (e.g., several heirs).

Each of several creditors or debtors has besides the other to require, or to perform, the same whole object (or its aestimatio), which is an obligatio in solidum' in the wider sense (e.g., in the obligation to pay a penalty arising from delict, and further, if the same whole thing has been bequeathed to several). Here also there are as many independent individual obligations as there are creditors or debtors.

Tryph. Si tutores rem pupilli furati sunt, videamus, an . . . singuli in solidum teneantur et, quamvis unus duplum praestiterit, nihilominus etiam alii teneantur: nam in aliis furibus eiusdem rei pluribus non est propterea poenae deprecatio, quod ab uno iam exacta est.-D. 26, 7, 55, 1.' Each of several debtors has to perform the same object, but by performance on the part of one the obligation of the others is cancelled, which is 'obligatio in solidum' in the narrower sense, a bare SOLIDARY obligation. An example of this is the responsibility of several to make compensation arising out of a common delict or quasi-delict, or out of the breach of a contract entered into in common. Here in fact likewise occur several independent obligations, which are only linked together through the identity of the object owing.

Ulp. Si plures in eodem coenaculo habitent,

1 If the guardians have purloined the property of the wards, we must see whether all are liable for the whole, and whether, although one has performed the double, the others notwithstanding are liable also; for in respect of several other thieves of the same thing, a penalty is not to be averted because it has already been exacted from one.