BOOK III. Pt. I. Ch. 11. The substituted obligation can always relate only to the object of the earlier obligation (idem debitum), but, as regards modification in the terms of performance, can be distinguished from it in many ways (e.g., as to dies, condicio, locus, payment of interest, conventional penalty, mode of payment, and the like). Gai. iii. § 177: Si eadem persona sit, a qua postea stipuler, ita demum novatio fit, si quid in posteriore stipulatione novi sit, forte si condicio vel dies vel sponsor adiiciatur aut detrahatur.' Ulp. Legata vel fideicommissa si in stipulationem fuerint deducta et hoc actum ut novetur, fiet novatio si quidem pure vel in diem fuerint relicta, statim; si vero sub condicione, non statim, sed ubi condicio exstiterit: nam et alias qui in diem stipulatur, statim novat; . . . at qui sub condicione stipulatur, non novat, nisi condicio exstiterit.-1. 8, § 1, D. h. t. Gai. iii. § 179: Quod autem diximus, si condicio adiiciatur, novationem fieri, sic intelligi oportet, . . . si condicio exstiterit; alioquin si defecerit, durat prior obligatio: sed videamus. num is qui eo nomine agat, doli mali aut pacti conventi exceptione possit summoveri, quia videtur inter eos id actum, ut ita ea res peteretur si posterioris stipulationis exstiterit condicio. is added to it, so that an obligation remains which is grounded upon both transactions. If it be the same person from whom I afterwards take a stipulation, there is a novation only when there is something new in the later stipulation, as when a condition, or a date, or a surety is added or omitted. 2 If legacies or bequests in trust have been brought into a stipulation, and this has been done with intent to novate, a novation will be produced: if in fact they have been left unconditionally, or for a term, then at once; but if under a condition, not at once, but when the condition shall come to pass. For even otherwise does he novate at once who stipulates for a term; . . . but he that stipulates conditionally does not novate, save as the condition shall take effect. Servius tamen Sulpicius existimavit statim et BOOK III. Pt. 1. Ch. II. a Compare extract above The effect of novation consists in the substantial (ibid.). destruction, resulting ipso iure, of the previous obligation, together with what has been superadded to it. Paul. Novatione legitime facta liberantur A kind of quasi-novation (novatio necessaria) is involved in 'Litis Contestatio' and Judgment.' Gai. iii. 180. sq.; D. 15, 1, 3. Ulp. Fit autem delegatio vel per stipulationem, 11: 42, 1, 6. 3; vel per litis contestationem.-1. II, § 1 eod.3 § 143. INVOLUNTARY GROUNDS OF EXTINCTION. To the reasons that destroy an obligation without co-operation of the persons interested belong (1) lapse of one of the subjects: (a) by the death of the debtor or creditor in actions not hereditary;" (B) by capitis diminutio of the debtor;d Vat. fgm. 263. § 25. d § 56. (y) by confusio, that is, merger of claim and debt in the same person, consequent upon inheritance. §§ 97, 103. 1 But our having said that, if a condition is added, a novation is operated, must be thus understood. . . if the condition come to pass otherwise, if it should fail, the original obligation still subsists. But let us see whether he who sues on that account can be met by a plea of fraud or covenant; because it seems to have been agreed that the thing should only be claimed upon fulfilment of the condition of the subsequent obligation. Serv. Sulp., however, considered that novation comes about at once and while the condition is pending; and if the condition have failed, no proceedings can be taken on either ground, and in that way the thing is lost. 2 If a novation have happened conformably to law, hypothecs and pledge are released, and interest does not run. 3 Now delegation comes about either by stipulation or by joinder of issue. Pap.: Aditio hereditatis nonnumquam iure confundit obligationem, veluti si creditor debitoris, vel contra debitor creditoris adierit hereditatem.D. 46, 3, 95, 2.1 (2) The natural or juristic destruction of the object of debt (impossibility of performance), which supposes that neither has the debtor to bear the periculum, nor that responsibility for culpa or mora exists on his part. Hence it is said: Species perit ei cui debetur; genus perire non censetur.' a Pomp. Si Stichus certo die dari promissus ante diem moriatur, non tenetur promissor.— D. 45, 1, 33.2 Paul. Cum quis rem profanam aut Stichum dari promisit, liberatur, si sine facto eius res sacra esse coeperit aut Stichus ad libertatem pervenerit, nec revocantur in obligationem, si rursus lege aliqua et res sacra profana esse coeperit et Stichus ex libero servus effectus est.— 1. 83, § 5 eod.3 § 144. SECONDLY, OF TRANSFER OF CLAIMS. CESSION. Since the obligation is a legal relation between persons marked out individually, a Singular Succession can neither attach to the rights of the creditor nor to 1 Entry upon an inheritance sometimes by law extinguishes an obligation by merger; for example, if the creditor shall have entered upon his debtor's inheritance, or conversely, the debtor upon his creditor's. 2 If the delivery of Stichus have been promised for a fixed day, but he dies before the day, the promisor is not liable. 3 When a person has promised to give a profane thing or (the slave) Stichus, he is released if by no act of his the thing has become sacred, or Stichus has attained to freedom; and they cannot be claimed back for the obligation if again by some law the profane thing shall become sacred, and Stichus from being a freeman has become a slave. An obligation can be the liability of the debtor. (1) Through Novation, that is, by delegatio of the debtor to the new creditor, or expromissio of the debtor by a third party; by which, however, the subsisting obligation is not transferred: it is rather extinguished, and its place taken by a new obligation, though of like content. BOOK III. Pt. 1. Ch. II. pationem, in Gai. ii. 38: Obligationes quoquo modo contractae nihil eorum" recipiunt; nam quod mihi ab a Sc. tradialiquo debetur, id si velim tibi deberi, nullo tionem, mancieorum modo, quibus res corporales ad alium trans- iure cessionem. feruntur, id efficere possum, sed opus est, ut iubente me tu ab eo stipuleris: quae res efficit, ut a me liberetur et incipiat tibi teneri. Quae dicitur novatio obligationis.' (2) Through CESSION, that is, through transfer of the exercise of a claim by the previous creditor conferring powers (mandare, cedere, praestare, actionem) on another, the 'cessionarius,' as his representative (procurator, cognitor), for the judicial enforcement • §§ 197, 200. of the claim in the name of the 'cedens,' but in his own interest and upon his own account (in rem suam), for which the consent of the debtor (debitor cessus)-otherwise than in delegatio-is not re quired. Gai. ii. 39 Sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri. 1 Obligations, in whatever way they are contracted, admit of none of these transfers. For if I wish that what is owed by some one to me should be owed to you, I cannot accomplish it by any of those modes by which corporeal things are transferred to another person, but you must by my direction take a stipu lation from him: the result of which is, that he is released by me and begins to be liable to you. This is called a novation of the obligation. 2 But without this novation you will be unable to sue in your BOOK III. Pt. 1. Ch. II. Imp. Alex.: Delegatio debiti, nisi consentiente et stipulatanti promittente debitore, iure perfici non potest nominis autem venditio et ignorante vel invito eo, adversus quem actiones mandantur, contrahi solet.-1. 1, C. de novat. 8, 41 (42).' The cedens' here at first remains creditor, and can also recall the mandatum agendi; he does not lose the general control of the claim until by litis contestatio "§ 142, ad fin. of the 'cessionarius' with the debtor; a though by later Law, notice to the debtor of the cessio having taken place (denuntiatio) operated this. On the other hand, the debtor also retains against the 'cessionarius' all pleas that connect themselves with the 'cedens ' personally. Mac. Meminisse oportet, quod procurator lite contestata dominus litis efficitur.-D. 49, I, 4, 5.2 : Imp. Gord. Si delegatio non est interposita debitoris tui ac propterea actiones apud te remanserunt, quamvis creditori tuo adversus eum solutionis causa mandaveris actiones, tamen antequam lis contestetur vel aliquid ex debito accipiat vel debitori tuo denuntiaverit, exigere a debitore tuo debitam quantitatem non vetaris et eo modo tui creditoris exactionem contra eum inhibere.-1. 3, C. de novat.3 own name, but you must take proceedings in my name in the character of my cognitor or procurator. 1 The assignment of a debt can be legally perfected alone by consent, and by a promise given to the stipulating creditor by the debtor. But the sale of a claim is, as a rule, contracted without the knowledge, or against the will, of him against whom the actions are transferred. 2 It must be borne in mind that upon joinder of issue the procurator becomes master of the suit. 3 If an assignment of your debtor has not taken place and, accordingly, the actions have continued at your command, although you have transferred to your creditor the actions against such debtor in lieu of payment, nevertheless, before joinder of issue, or the acceptance by him of any part of the |