Contracts

84. A third head of contract under the civil law was that of contracts made literis. An engagement having been made literis. made to give a definite amount, the parties agreed to make a memorandum of the terms of the contract. The creditor placed in his book of domestic accounts (tabula or codex) the name of the debtor, and the sum as pecunia expensa lata, weighed out and given to the debtor; and the debtor entered in his tabula the same sum as pecunia accepta relata. Either party could.call on the other to produce his tabula, which it was considered so incumbent on a Roman citizen to keep carefully and accurately, that any wilful error was discoverable without much difficulty. The debtor, in fact, furnished the creditor with a means of proving that the debtor had on a certain day received the money, and even if the debtor had not set the sum down in his tabula, the creditor could show his own tabulæ as a proof of the contract. These contracts were peculiar to Roman citizens. Peregrini had as a substitute syngraphæ, signed by both parties, or chirographa, signed only by the debtor; and on these documents an action could be brought.

Contracts made consensu.

85. There were, also, four particular contracts, for the formation of which the civil law required no formalities whatever, but which were made merely consensu, by the consent of the parties. These four contracts weresale (emp'io-venditio), hiring (locatio-conductio), partnership (societas), and bailment (mandatum). The four modes, then, in which contracts might be entered into under the civil law, were re, verbis, literis, and consensu.

Prætorian innovations.

86. When, however, the old law of contracts fell under the manipulation of the prætors, many changes were introduced. The ten forms of contract recognised by the civil law, that is, the four heads of contract made re, the four heads of contract made consensu, and contracts made verbis and literis, still remained the basis of the whole law of contracts; but the prætors, while nominally adhering to the civil law, introduced changes that had a great practical effect. The nature of this change can only be understood by studying the details of the Roman law of contracts, and it would be out of place in a general introduction to attempt to notice them. But there are three ways in which the prætors wrought a change, which were so important that they may be briefly stated here. By an extension of the theory of the civil law contract re, the prætors permitted an

action to be brought to enforce every contract that was in part executed; secondly, agreements (pacta) that would not furnish a cause of action were permitted to be set up by way of defence to an action with which they were inconsistent; and thirdly, there were a few specified particular cases in which the prætor permitted pacts to be enforced by action.

tractu.

87. Obligations might, however, very well arise, without any fault on the part of any one, and yet without having Obligations their origin in mutual consent. The mere fact of quasi ex conoccupying a certain position will sometimes involve duties, the performance of which may be enforced by an action, and which give rise to a personal right which the person interested in their performance has against the person bound to perform them. An heir, for instance, was, by the mere fact of accepting the inheritance, bound to pay the legacies given by the testament. Such obligations were said to be quasi ex contractu, not that they really rested on any contract, but there was an analogy between the obligation thus arising and that arising from the formation of a contract.*

88. It was not every wrong deed for which compensation could be obtained that gave rise to an obligation ex delicto; Obligations there were certain particular wrong deeds, such as ex delicto. theft and robbery with violence, which the law expressly characterised as delicta, and to procure reparation for which the law provided a special action. It was only when a person suffered by one of these wrong deeds that an obligation ex delicto arose. When any wrong deed was done not thus expressly designated by law as a delictum, and when no particular and appropriate form of action was provided, the obligation was said to arise quasi ex delicto. Among the instances given in the Institutes is that of dangerous things being placed so as to fall into a public way. If any one was hurt by the fall, the author of the injury would be bound to make reparation by an obligation quasi ex Obligations delicto, there being this point of analogy between this quasi ex deobligation and that in the case of a delict, that the person liable to be sued had done harm to the person or property of another. The division of obligations adopted in the Institutes is therefore into those ex contractu, those quasi ex contractu, those ex delicto, and those quasi ex delicto.

licto.

• See AUSTIN, Province of Jurisprudence determined, Appendix, page xl.

89. The ancient law considered an obligation as existing until Dissolution of the tie of law, the vinculum juris, was loosed by the obligations. thing being given, furnished, or done, or by a new tie being formed in place of the old; this loosening of the tie was termed solutio. If payment was made, i.e. if the contract was carried out, this at once put an end to the contract. But it might happen that the parties wished to put an end to the contract before it was carried out. Each mode of forming a contract by the civil law was accompanied by a corresponding mode of dissolving it. When the contract had been formed re, it was enough that the thing should be restored; when it had been formed verbis, a question and answer again furnished the means of accomplishing the desired object. Habesne acceptum? Habeo, sufficed to put an end to the contract. The parties made an entry of payment in their codices, if the contract had been literis; and mutual consent dissolved those contracts which it had sufficed to form. The solutio verbis was most frequently employed, and it was easy to employ it on every occasion: for in whatever way the contract might originally have been entered into, its terms could be repeated in the form of a stipulation, and then this stipulation could be dissolved by a solutio verbis. The stipulation extinguished the original contract. For contracts were extinguished not only by payment, but by what was called novatio; that is, by making a new contract, and substituting it in the place of the original one. The law required that the new contract should be always made verbis or literis. When strict adherence to the rule of law, requiring a particular mode of payment, would work injustice, the prætor would always provide a remedy by means of his equitable jurisdiction.

Novatio.

Meaning of the word action.

V. SYSTEM OF CIVIL PROCESS.

90. An action is the process by which a right is enforced. Unless a means of enforcing it was provided, the right would be a mere inoperative abstraction. Directly it was disputed, it would cease to have any real existence; but in order that it may have a real existence, the State uses its powers to insure a free exercise of it, as soon as it is made certain to the magistrate, who is entrusted with the authority of the State, that the right claimed does really belong to the claimant. The proceeding by which this is made evident to the magistrate,

and the machinery set in motion by which the State exerts its power of compulsion, is called an action. The word 'action' is not, however, always used exactly in this sense; for it is also employed to mean sometimes the right to institute such a proceeding, and sometimes the form which the proceeding takes.

history of RoEpochs in the man system of civil process.

91. There are three great epochs in the history of the Roman system of civil process. First, that of the system of the legis actiones, certain hard, sharply-defined forms which a rude civilisation prescribed for all proceedings. Secondly, that of the system of formula, by which the prætor, adopting a most flexible form of organising the proceedings, was enabled to give a means of enforcing every right which the more enlarged views of an advancing civilisation pronounced to be founded on equity; and thirdly, that of the extraordinaria judicia, by which, under the later emperors, the supreme authority took the whole conduct of the proceeding into its own hands, and arrived at what seemed to it to be just in as direct and speedy a manner as it found possible.

92. In enforcing rights two very different functions have to be exercised by those to whom the powers of the State The magisare delegated. First, there must be some one trate and the judge. invested with magisterial authority, giving the sanction and solemnity of his position to the whole proceeding, who shall represent the law and say what the law is, and who shall have power to employ the force which the State places at the disposal of those it selects to administer justice. Secondly, an inquiry has to be made into particular facts, evidence has to be received and weighed, and an opinion formed and pronounced as to the real merits of the case. The person who exercised the one function was spoken of by the Romans as magistratus; the person who exercised the other as judex. To the law, represented, pronounced, vindicated, by the magistrate, they applied the term jus; to the examination of contested facts by the judge, the term judicium. It is perfectly possible that the same person should act as magistrate and judge; but it is also possible that the two provinces should be separated and placed in the hands of different persons. Among the Romans the magistratus was a different person from the judex, until the introduction of the system of extraordinaria judicia. The two functions were kept almost entirely apart under the system of formula, and, from a comparatively early period of Roman history, the notion of a judge distinct

from the magistrate was familiar to the national mind. After the expulsion of the kings, and during the time of the first period of the system of civil process, first the consuls, then the prætor urbanus, and in some cases the adiles, acted as the magistrate, and the magistrate was said to have two functions, (1) Jurisdictio, the elements of which were summed up in the three solemn words by which the prætor announced that he was exercising his authority on one of the dies fasti, when alone legal business could be done (Ov. Fast. i. 47): do, I give an action or possession of goods; dico, I express the law, issue edicts or interdicts; addico, I give ownership; and (2) Imperium, the power of using the public forces to insure obedience to his orders. As judex, any member of the senatorial body, so long as senators alone were qualified to act as judges, could act who was chosen by the mutual consent of the parties: if they could not agree, the choice was determined by lot. There was also a standing body of plebeian judges dating from a remote antiquity, the centumvirs, elected annually by the comitia, three from each local tribe, and constituting a collegium divided into sections. They had special jurisdiction over questions of status, of dominium ex jure Quiritium, and of successions, and a spear (hasta), the special symbol of Quiritian ownership, was set up in front of the place where they met. In cases involving any question into which the centumvirs were the proper persons to inquire, it was not open to the parties to ask for a judge, and the whole proceedings were carried on before the centumvirs. Lastly, in cases where the interests of peregrini were involved, recuperatores, i.e. persons not on any list, were invited to act, and, so acting, furnished the body who were to act the part of the judex. It may be added that where the circumstances of the case demanded that the judge, in pronouncing his opinion on the facts, should exercise a wider discretion than was ordinarily open to him, or decide from special knowledge, he was spoken of as an arbiter; and although there could never be more than one judex, there were sometimes several arbitri, but the arbiter was chosen from the same class as the judex.

Arbiters.

93. All judicial proceedings, whether before a magistrate or a Character of judge, were conducted publicly at Rome. The projudicial pro- ceedings began with the in jus vocatio, or summons to ceedings at Rome in early come before the magistrate. If the adversary would not come, the summoner called, by touching them on the ear, bystanders to witness that he had made the summons;

times.