Novatio under condition. 231 demum novatio fit, si quid in posteriore stipulatione novi sit, forte si condicio vel sponsor aut dies adiciatur aut detrahatur. (178.) Sed quod de sponsore dixi, non constat. nam diversae scholae auctoribus placuit nihil ad novationem proficere sponsoris adiectionem aut detractionem. (179.) Quod autem diximus, si condicio adiciatur, novationem fieri, sic intelligi oportet, ut ita dicamus factam novationem, si condicio extiterit: alioquin, si defecerit, durat prior obligatio. sed videamus, num is before there is a novation only in case there be something new in the later stipulation; for instance, if a condition, or a sponsor', or a day (of payment) be inserted or omitted. 178. But what I have said about the sponsor is not universally admitted; for the authorities of the other school think the insertion or omission of a sponsor has not the effect of causing a novation. 179. Also our assertion that a novation takes place if a condition be inserted must be thus understood, that we mean a novation takes place if the condition come to pass if on the contrary it fail, the original obligation stands goods. But the point we have to consider is whether he 1 III. 115. 2 III. 179. This passage is at first sight confused, but it may be thus interpreted. Supposing a new condition to be inserted, the question arises, whether is there an immediate novation or a novation conditional? If there be an immediate novation, the old agreement is swept away altogether, and the new agreement is only to be carried out on fulfilment of the condition; so that if the condition fail, the promisee will get nothing at all. This view Gaius at once discards. The novation is, according to him, presumptively conditional, and so if the condition fail, the old obligation remains intact according to the letter of the civil law. But admitting this view to be correct, all that as yet has been shewn is that an action will be granted, and not that the plaintiff will succeed, for he may be met by an exception of dolus malus or pactum conventum, because the defendant may allege that the intent of the parties was to abolish the old certain obligation and introduce a new conditional one in its place. This question Gaius leaves unsettled, it can only be decided by the circumstances of each particular case; and so we may sum up his views thus: the presumption is that it is the novation which is conditional, an action will therefore be granted on the old agreement when the condition fails, but the presumption may be rebutted by shewing that it was not the novation, but the second stipulation that was conditional. The latter part of the paragraph informs us that Servius Sulpicius maintained the doctrine of which Gaius disapproves, viz. that the novation was immediate; and that he regarded from a like point of view a stipulation made with a slave, con-, sidering it to work an absolute novation, and so destroy the pre-existent obligation, without, however, being qui eo nomine agat doli mali aut pacti conventi exceptione possit summoveri, et videatur inter eos id actum, ut ita ea res peteretur, si posterioris stipulationis extiterit condicio. Servius tamen Sulpicius existimavit statim et pendente condicione novationem fieri, et si defecerit condicio, ex neutra causa agi posse, et eo modo rem perire. qui consequenter et illud 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 in utroque casu alio iure utimur: non magis his casibus novatio fit, quam si id quod tu mihi debeas a peregrino, cum quo sponsi communio non est, SPONDES verbo stipulatus sim. 180. Tollitur adhuc obligatio litis contestatione, si modo who sues in such a case can be met by an exception of fraud or "agreement made," and whether we must consider that the transaction between the parties is to the effect that the thing is to be sued for only in case the condition of the later stipulation come to pass. Servius Sulpicius, however, thought that at once and whilst the condition was in suspense a novation took place, and that if the condition failed no action could be brought on either case, and so the thing was lost. And consistently with himself he also delivered this opinion, that if any one stipulated with a slave for that which Lucius Titius owed him (the stipulator), a novation took place and the thing was lost; because no action can be brought against a slave. But in both these cases we adopt a different rule : for a novation no more takes place in these cases than it would if I stipulated with a foreigner, with whom it is impossible to deal in sponsion', by means of the word spondes. 180. An obligation is also dissolved by the litis contestatio2, itself valid. Gaius concludes the paragraph by reiterating his dislike of these principles of interpretation. See § 176. 1 III. 93. Sponsus=sponsoris promissio. Dirksen, sub verb. 2 The Roman lawyers did not consider that a contested right was a subject of litigation as soon as the plaintiff had taken the first step towards an action. The moment when it did become a subject of litigation was the litis contestatio. Till the preliminary proceedings before the Praetor were terminated there was room for a peaceable accommodation between the parties, and it was only at the point when the litigants were remitted to a judex, the instant when the proceedings in jure terminated and those in judicio began, that the matter must inevitably legitimo iudicio fuerit actum. nam tunc obligatio quidem principalis dissolvitur, incipit autem teneri reus litis contestatione : seď si condemnatus sit, sublata litis contestatione incipit ex causa iudicati teneri. et hoc est quod aput veteres scriptum est, ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere. (181.) Unde fit, ut si legitimo iudicio debitum petiero, postea de eo ipso when proceedings are taken by action based on the statute law. For then the original obligation is dissolved and the defendant begins to be bound by the litis contestatio: but if he be condemned, then, the litis contestatio being no longer binding (lit. being swept away), he begins to be bound on account of the judgment. And this is the meaning of what is said by ancient writers, that "before the litis contestatio the debtor ought to give, after the litis contestatio he ought to suffer condemnation (submit to award), after condemnation (award) he ought to do what is adjudged." 181. Hence it follows that if I sue for a debt by action based on statute law', be left to the decision of the law. The meaning of the term litis contestatio is thus given by Festus: "Contestari est cum uterque reus dicit, Testes estote. Contestari litem dicuntur duo aut plures adversarii quod ordinato judicio utraque pars dicere solet, Testes estote;" where he evidently is referring to the time anterior to the introduction of the formulary process, when legis actiones were in use. This ceremony became in later times a mere form, but the name was still retained. See Sandars' edition of the Institutes, Introduction, p. 67. Ulpian says, proinde non originem judicii spectandam, sed ipsam judicati velut obligationem," referring to the obligation of a reus after award. D. 15. 1. 3. II. 1 The differences in procedure between judicia legitima and judicia imperio continentia are to be found in Gaius, IV. 103-109. Mühlenbruch (in his notes on Heineccius, IV. 6. 27) gives, in substance, the following As iure agere non possim, quia inutiliter intendo DARI MIHI OPORTERE; quia litis contestatione dari oportere desiit. aliter atque si imperio continenti iudicio egerim: tunc enim nihilominus obligatio durat, et ideo ipso iure postea agere possum; sed' debeo per exceptionem rei iudicatae vel in iudicium deductae summoveri. quae autem legitima sint iudicia, et quae imperio contineantur, sequenti commentario referemus. 182. Transeamus nunc ad obligationes quae ex delicto ori I cannot afterwards, by the letter of the civil law, bring another action for the same, because I plead' in vain that "it ought to be given to me," inasmuch as by the litis contestatio the necessity that it should be given to me ceased'. It is otherwise if I proceed by action founded on the imperium, for then the obligation still remains, and therefore, by the letter of the law, I can afterwards bring another action: but I must be met by the exception rei judicatae or in judicium deductae3. Now what are actions based on statute law, and what are actions founded on the imperium, we shall state in the next commentary*. 182. Now let us pass on to actions which arise from delict3, that it seems a marvel the separation was kept up so long. Hence it at length died away without any direct enactment, and it is indisputable that in Justinian's time no vestiges of it remained." As we have mentioned imperium above, this is perhaps the place to remark that this imperium implies a power of carrying out sentences: a magistrate who was merely executory was said to have imperium merum or potestas: one like the Praetor, &c., who could both adjudge and carry into execution, possessed imperium mixtum, i. e. a combination of potestas and jurisdictio; for jurisdictio, sometimes called notio, is the attribute of a magistrate who can only investigate, and must apply to other functionaries to carry out his decisions thus a judex had jurisdictio only. See Heineccius, Antiq. Rom. p. 637, 638, Mühlenbruch's edition, D. 2. I. 3. 1 IV. 41. 2 IV. 107. 3 IV. 106, 123. The first exception is to the effect that the matter has already been adjudicated upon, the second that it has been carried beyond the litis contestatio, and that thus there has been a novatio. In this last-named exception it is obviously immaterial whether the court has yet arrived at a judgment or not. See for a curious case connected with this exception, Cic. de Orat. I. 37. 4 Besides the methods of dissolving an obligation already mentioned there were (1) compensatio and deductio, the setting off of what the creditor owes to the debtor, in order to lessen or extinguish the debt, see IV. 61-68: (2) Confusio, when the obligation of the debtor and right of the creditor are united in the same person: (3) mutual consent, when a contract of the consensual kind has been made, but its fulfilment not yet undertaken by either party. 5 It must be noticed that all the Furtum and its varieties. 235 untur, veluti si quis furtum fecerit, bona rapuerit, damnum dederit, iniuriam commiserit: quarum omnium rerum uno genere consistit obligatio, cum ex contractu obligationes in IIII genera deducantur, sicut supra exposuimus. 183. Furtorum autem genera Servius Sulpicius et Masurius Sabinus III esse dixerunt, manifestum et nec manifestum, conceptum et oblatum: Labeo duo, manifestum, nec manifestum ; nam conceptum et oblatum species potius actionis esse furto cohaerentes quam genera furtorum ; quod sane verius videtur, sicut inferius apparebit. (184.) Manifestum furtum quidam id esse dixerunt quod dum fit deprehenditur. alii vero ulterius, quod eo loco deprehenditur ubi fit: velut si in oliveto olivarum, in vineto uvarum furtum factum est, quamdiu in eo oliveto aut for instance, if a man have committed a theft, carried off goods by violence, inflicted damage, done injury: the obligation arising from all which matters is of one and the same kind', whereas, as we have explained above, obligations from contract are divided into four classes. 183. Of thefts, then, Servius Sulpicius and Masurius Sabinus say there are four kinds, manifest and nec-manifest, concept and oblate: Labeo says there are two, manifest and necmanifest: for that concept and oblate are rather species of action attaching to theft than kinds of theft and this view appears to be the more correct one, as will be seen below3. 184. Some have defined a manifest theft to be one which is detected whilst it is being committed. Others have gone further, and said it is one which is detected in the place where it is committed: for instance, if a theft of olives be committed in an oliveyard, or of grapes in a vineyard, (it is a manifest theft) so long as the thief is in the vineyard or oliveyard: actions mentioned in §§ 182-225 are civil actions on delict. Furtum, rapina, etc. were also punishable criminally, but with this fact we have at present nothing to do. I They all arise re. 2 III. 89. 3 III. 186, 187. Gaius, with his usual dislike of definitions, does not give one of theft. Justinian's will be found in Inst. IV. 1. 1. Those of 66 Qui alienum tacens lucri faciendi causa sustulit, furti constringitur, sive scit cujus sit, sive nescit." Gaius implies that this or something like it is his definition in §§ 195, 197 below. |