Pt. I. Ch. 11. tum aureorum, deinde re nondum secuta (i.e. BOOK III. Pomp.:-post pretium solutum infectam emp- Ner. Ab emptione venditione locatione conductione ceterisque similibus obligationibus quin integris omnibus consensu eorum, qui inter se obligati sint, recedi possit, dubium non est. . . . Nec quidquam interest, utrum integris omnibus, in quae obligati essemus, conveniret, ut ab eo negotio discederetur, an in integrum restitutis his, quae ego tibi praestitissem, consentiremus, ne quid tu mihi eo nomine praestares.-1. 58, de pact.3 § 142. NOVATIO." NOVATIO, occupying a middle place between 'solutio and the agreement for release, is the extinction of an 1 If Tit. and Sejus have agreed together that Sej. should purchase the Tusculan estate for one hundred aurei, and then while the matter is still inchoate (i.e., before the price has been paid, or the land delivered) they consent to a withdrawal from this buying and selling, they are mutually released. The same holds in respect of letting and hiring and all contracts which spring from consent. 2 We cannot undo the purchase after payment made of the purchase-money. 3 There is no doubt but that by the consent of those who have mutually bound themselves we can withdraw from a purchase and sale, letting and hiring, and all like obligations, if everything remain in the same state. . . . And it makes no matter whether an agreement has been made that we should withdraw from such transaction when all as to which we were bound remained unfulfilled, or whether it was after the return of what I performed for you we agreed that you should do nothing for me in that behalf. a Cf. Pollock, Contract,' ch. v. pp. 193, sq.; Bell, s. 'Novation.' a Pt. L. Ch. II. § 119. BOOK III. obligation by entering into a verborum obligatio (stipulatio debiti)—or into a literarum obligatioa— which relates to the object of the previous obligation (id quod debetur), and has to take its place; so that, consequently, a new causa debendi' is constituted for This must not an already existing debt. be confounded with the cases in D. 41, 1, 9, 5; 6, 2, 9, 1 (§ 89); and D. 17, 1, 34 pr., 12, 1, 15 ($120). Cf. Vat. fgm. 263; D. 39, 5, 21, 1; and inf. § 144, ad init. Ulp. Novatio est prioris debiti in aliam obligationem, vel civilem vel naturalem, transfusio atque translatio, hoc est cum ex praecedenti causa ita nova constituatur, ut prior perimatur; novatio enim a novo nomen accipit et a nova obligatione. -1. 1 pr., D. h. t. (de novat. 46, 2).' The novating, or substituted, obligation (stipulatio) can be created between the same persons, as: 'Quidquid te mihi ex empto dare facere oportet, tantam pecuniam mihi dare spondes ?'; or between the previous creditor and a new debtor, which is so-called expromissio, as: Quod Titius mihi debet, id tu mihi dare spondes?'; or finally, between the previous debtor and a new creditor, to whom the debtor is delegated, or assigned, by the previous creditor, which is delegatio in the narrower sense, as: 'Quod Titio debes, id mihi dare spondes ? 'e Gai. iii. § 176: Praeterea novatione tollitur obligatio, veluti si quod tu mihi debeas a Titio dari stipulatus sim: nam interventu novae personae nova nascitur obligatio et prima tollitur translata in posteriorem.* Ulp.: Non tamen si quis stipuletur, quod mihi debetur, aufert mihi actionem, nisi ex voluntate Novatio is the commutation and transformation of an earlier debt into another obligation, either one of civil or natural Law, that is, if from a pre-existing title a new one is so formed that the earlier one is destroyed. For novation has its name a novo (from what is new) and from the new obligation. 2 An obligation is, besides, dissolved by novation; for example, if I stipulate for the payment by Tit. of what you owe to me; for a fresh obligation arises by the introduction of a new person, and the first one is dissolved by being transferred into the later one. a BOOK III. Pt. I. Ch. II. mea stipuletur; liberat autem me is, qui quod debeo promittit, etiamsi nolim.-1. 8, § 5, D. h. t.a 1 Id.: Delegare est vice sua alium reum dare Compare creditori, vel cui iusserit.-1. II pr. eod. The following are the requisites of Novation. (1) Every obligation, civil or natural, can be novated. Ulp. Illud non interest qualis praecessit obligatio, utrum naturalis an civilis an honoraria, et utrum verbis an re an consensu; qualiscumque igitur obligatio sit, quae praecessit, novari verbis potest dummodo sequens obligatio aut civiliter teneat aut naturaliter, ut puta si pupillus sine tutoris auctoritate promiserit.-1. 1, § 1, D. h. t.3 (2) The pre-existing (praecedens, prior) obligation is only destroyed, if a new (posterior), valid, although inoperative, obligation obtains. Pomp.: Novatio non potest contingere ea stipulatione, quae non committitur.-1. 24 eod.' extract below (ibid.). Gai. iii. 176: -prima tollitur translata sc. obligatio. in posteriorem, adeo ut interdum licet posterior stipulatio inutilis est, tamen prima novationis iure tollatur; veluti si quod mihi debes, a Titio post mortem eius vel a muliere pupillove sine tutoris auctoritate stipulatus fuero: quo casu rem 1 But he who stipulates for that which is owing to me does not deprive me of an action, unless he stipulate by my consent; but he that promises what I owe, even against my will, releases me. To delegate is to give in one's own place another debtor to the creditor, or to whom he shall direct. It makes no difference what obligation has preceded, whether one by natural or civil Law, or a magisterial one, and whether it rested upon words, or a thing, or consent. Of whatever kind, therefore, the obligation was that preceded, it can be novated by words, provided the subsequent obligation binds either by civil or by natural Law; as for example, if a ward has made a promise without his guardian's sanction. A novation cannot come about by such stipulation as is not enforced. BOOK III. Pt. I. Ch. 11. " Cf. ibid. extract above. amitto, nam et prior debitor liberatur et posterior obligatio nulla est; non idem iuris est si a servo stipulatus fuero: nam tunc (prior) proinde adhuc obligatus tenetur, ac si postea a nullo stipulatus fuissem. § 179: Servius tamen Sulpicius. . . respondit, si quis id quod sibi Lucius Titius deberet, a servo fuerit stipulatus, novationem fieri et rem perire, quia cum servo agi non potest: sed alio iure utimur; nec magis . . . novatio fit, quam si id quod tu mihi debeas, a peregrino, cum quo sponsus communio non est, SPONDES verbo stipulatus sim.' For extinction of the subsisting by the new obligation,' animus novandi' is requisite, and besides, by the latest Law, declaration of the intention of novation; otherwise both obligations continue collateral to one another (accessory stipulation). Ulp. Omnes res transire in novationem possunt; quodcumque enim sive verbis contractum est sive non verbis, novari potest et transire in verborum obligationem ex quacumque obligatione : dummodo sciamus novationem ita demum fieri, si hoc agatur, ut novetur obligatio; ceterum si The original obligation is extinguished by being transferred into the later one, to such an extent that sometimes, although the later stipulation is invalid, yet the original one is extinguished by virtue of the novation; for instance, if I shall have taken a stipulation from Tit. for payment by him after his death of what you owe me, or from a woman or a ward without the guardian's sanction, in this case I lose the thing; for the earlier debtor is discharged, and the later obligation is void. The rule is not the same if I have taken the stipulation from a slave; for then the (earlier debtor) remains bound, just as if I had not afterwards taken a stipulation from any one. § Serv. Sulp., however, gave an opinion that if a person took a stipulation from a slave for that which Luc. Tit. owed (the former), a novation was produced and the thing was lost, proceedings being impossible against a slave. But we observe a different rule; for a novation is no more effected . . . than it would be if I stipulated by means of the word spondes? with a foreigner, with whom there is no dealing by suretyship. non hoc agatur, duae erunt obligationes. Quod ego debeo si alius promittat, liberare me Inst. iii. 29, § 3: 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.as 1 All matters can pass into a novation. For whatever has been contracted, whether by words or not by words, can be novated, and pass from any obligation into a verbal one. Only we must know that a novation is alone produced if it be intended that the obligation should be novated; but if that be not the intention, there will be two obligations. For if another promises that which I owe, he can release me, if this is done in view of novation; if, however, it has not occurred for the purpose of novation, both indeed are liable; but if payment be made by one, the other is discharged. But since it was in fact settled amongst the old jurists that a novation took place when the second obligation has been entered into with the purpose of effecting a novation, but it was thereby doubtful when this act should be held to have operated with the purpose to novate, and different presumptions were set up by different persons to suit various cases, our constitution has therefore been published, which has expressly provided that novation shall alone be produced when this particular statement shall be made by the contracting parties, that their agreement was in view of the novation of the former obligation; otherwise the earlier obligation remains in force, and the second BOOK III. a Cf. Brown, S. V. |