TIT. XXIX. QUIBUS MODIS OBLIGATIO TOLLITUR.

Tollitur autem omnis obligatio solutione ejus, quod debetur, vel si quis, consentiente creditore, aliud pro alio solverit. Nec tamen interest, quis solvat, utrum ipse, qui debet, an alius pro eo liberatur enim et alio solvente, sive sciente debitore sive ignorante vel invito solutio fiat. Item si reus solverit, etiam ii, qui pro eo intervenerunt, liberantur. Idem ex contrario contingit, si fidejussor solverit: non enn solus ipse liberatur, sed etiam

reus.

GAI. iii. 168; D. xlvi. 3. 53;

Every obligation is dissolved by the payment of the thing due, or of something else given in its place with the consent of the creditor. And it makes no difference whether it is the debtor himself who pays, or some one else for him; for the debtor is freed from the obligation, if payment is made by a third person, and that either with or without the knowledge of the debtor, or even against his will. If the debtor pays, all those who have become surety for him are thereby freed, just as, on the other hand, if a surety pays, not only he himself is freed, but the principal is freed also.

D. xlvi. 3. 38. 2; D. xlvi. 3. 43;
D. xlvi. 1. 66.

We now pass to considering how an obligation once formed may be dissolved. Solvere, to unloose, dissolve the tie, is the appropriate term for the process, in whatever way it may be accomplished-Solutionis verbum pertinet ad omnem liberationem quoquo modo factam (D. xlvii. 3. 54)—although most generally applied to the payment of money, as the mode by which contracts are usually terminated. It is by a slight extension of the strict use of the word that a person was said not solvere obligationem, but solvere pecuniam.

The civil law, which imposed forms on the formation of a contract, imposed corresponding forms on its dissolution. And when these were fulfilled, the debtor was said to be freed from his obligation ipso jure.' In later times, in cases where these forms had not been gone through, but yet equity demanded that the debtor should be considered free, the prætor allowed him to repel, by an exception, the creditor who sued him; and it has thence been said, 'obligatio aut ipso jure aut per exceptionem tollitur.'

When it is said in the text that if the fidejussor pays the principal is freed, the case must be understood to be referred to of a fidejussor paying, without using his right of having the actions ceded to him. Payment might be made to the creditor or his authorised agent, to the tutor or curator, or to the pupil if authorised.

Of course, in every stage of the law, payment put an end to the contract. The claims of the contracting parties were satisfied, and nothing more remained to be done. But, supposing payment was not made, but one of the parties was willing to release the other, or one party could claim, for some reason, to be released, certain solemn forms had been entered into, which could not be made of no effect by the mere consent of the parties. Such forms

were too solemn in the eyes of the law to lose their power unless other forms equally solemn were gone through. Accordingly, in such cases, where no real payment was made, there was what Gaius calls an imaginaria solutio, varying in the method in which it was made according to the forms nexum, verbis, or literis, with which the contract had been formed.

If, for instance, the contract had been formed per æs et libram, not less than five witnesses and a libripens were called together. The debtor struck the scale with a piece of money and gave it to the creditor in the name of the whole sum owing. (GAI. iii. 174.) This form was also adopted in cases where payment of a legacy given per damnationem was remitted, probably because the testament was itself supposed to be made per æs et libram; and also in cases where payment of money due by a judicial sentence was remitted, probably because the most formal mode of imaginary payment was adopted when the money was due in a way which the law considered as specially solemn. (GAI. iii. 175.) This form of imaginary payment was also applicable wherever anything certain of those things which 'pondere, numero, mensurave constant' was due.

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If the contract had been made verbis,' the debtor asked the creditor if he held what was due as received, Quod ego tibi promisi, habesne acceptum?' The creditor answered that he did, "Habeo.' The creditor was said 'acceptum ferre,' and the process was called acceptilatio. (See next paragr.)

If the contract had been made literis,' the debtor probably entered on his tabulæ the expenditure (expensilatio) of the sum due, with the consent of the creditor, but we cannot learn anything from Gaius on the subject.

If the contract had been made 're,' the mere return of the thing was a sufficient sign that the contract was at an end. There was a visible act, and the whole object of the forms by which contracts were made and dissolved was to substitute visible acts for mere expressions of consent. Where the contract, as belonging to the jus gentium, could be made merely by consent, it could also be dissolved by consent. (See paragr. 4.)

1. Item per acceptilationem tollitur obligatio. Est autem acceptilatio imaginaria solutio. Quod enim ex verborum obligatione Titio debetur, id si velit Titius remittere, poterit sic fieri, ut patiatur hæc verba debitorem dicere: 'Quod ego tibi promisi, habesne acceptum?' et Titius respondeat 'Habeo;' sed et Græce potest acceptum fieri, dummodo sic fiat, ut Latinis verbis solet exeus λαβὼν δηνάρια τόσα ; ἔχω λαβών. Quo genere, ut diximus, tantum eæ obligationes solvuntur, quæ ex verbis consistunt, non etiam ceteræ : con

1. An obligation is also put an end to by acceptilation. This is an imaginary payment, for if Titius wishes to remit payment of that which is due to him by a verbal contract, he can do so by permitting the debtor to put to him the following question, 'Do you acknowledge to have received that which I promised you?' Titius then answering, 'I do.' The acknowledgment may also be made in Greek, provided it is made as it would be in Latin, ëxeis λaßòv dŋvápia róσa ; ẽxw λaßov. In this way verbal contracts are dissolved, but not contracts made

sentaneum enim visum est, verbis factam obligationem posse aliis verbis dissolvi. Sed id, quod ex alia causa debetur, potest in stipulationem deduci et per acceptilationem dissolvi. Sicut autem quod debetur, pro parte recte solvitur, ita in partem debiti acceptilatio fieri potest.

in other ways: it seemed natural that an obligation formed by words should be able to be dissolved by words; but anything due by any other kind of contract may be made the subject of a stipulation, and the debtor be freed by acceptilation. And as part of a debt may be paid, so acceptilation may be made of a part only.

GAI. iii. 169, 170. 172; D. xlvi. 4. 8. 4; D. xlvi. 4. 9.

Properly the acceptilatio only operated as a release when the contract had been made verbis, but it was held, in all cases, to contain by implication a pact or agreement not to sue, and therefore an exceptio could be grounded on it to repel the creditor who had entered into it. Si acceptilatio inutilis fuit, tacita pactione id acturus videtur, ne peteretur. (D. ii. 14. 27. 2.) The jurists, however, found a means of making the acceptilatio extend to every kind of contract. It was looked on as a stipulation which operated as a novation of the old contract, that is, which did away with the former contract, and substituted a new one in its place.

2. Est prodita stipulatio, quæ vulgo Aquiliana appellatur, per quam stipulationem contingit, ut omnium rerum obligatio in stipulationem deducatur et ea per acceptilationem tollatur. Stipulatio enim Aquiliana novat omnes obligationes et a Gallo Aquilio ita composita est: 'Quidquid te mihi ex quacumque causa dare facere oportet, oportebit oporteretve, præsens in diemve quarumque rerum mihi tecum actio quæque abs te petitio vel adversus te persecutio est, erit quodque tu meum habes, tenes, possides, possideresve dolove malo fecisti, quo minus possideres, quanti quæque earum rerum res erit, tantam pecuniam dari stipulatus est Aulus Agerius, spopondit Numerius Negidius.' Item e diverso Numerius Negidius interrogavit Aulum Agerium: 'Quidquid tibi hodierno die per Aquilianam stipulationem spopondi, id omne habesne acceptum?" Respondit Aulus Agerius: 'Habeo acceptum' vel et 'acceptum tuli.'

2. A stipulation has been invented, commonly called the Aquilian, by which every obligation, whatever may be the thing it concerns, is put into the form of a stipulation, and afterwards dissolved by acceptilation. This Aquilian stipulation effects a novation of all obligations, and was framed in the following terms by Gallus Aquilius:

Whatever for any cause you are or shall or might be bound to give or do for me, either now or at a future day, everything for which I have or shall have an actio with you, a petitio from you, or a persecutio against you; everything of mine which you have, hold, or possess, or might possess, or which you have made yourself not to possess through some wilful fault of your own, whatever shall be the value of each of these things, so much Aulus Agerius stipulated should be given him in money, and Numerius Negidius engaged to give it ;' on the other hand, Numerius Negidius put to Aulus Agerius the question, "All that I have promised you to-day by the Aquilian stipulation, do you acknowledge it as received?' and Aulus Agerius answered, 'I have it as received,' or 'I have entered it as received.'

D. ii. 15. 4; D. xlvi. 4. 18. 1.

This Aquilius Gallus was the friend of Cicero, whose colleague he was in the prætorship (B.c. 65). He was the pupil of Mucius,

and the teacher of Sulpicius, and is mentioned in the Digest (i. 2. 2. 42) as of great authority with the people. He is said to have devised a means by which postumi sui might be instituted (D. xxviii. 2. 29); and Cicero informs us that he was also the author of certain formulæ in the actions of theft (De Off. iii. 14) (see Bk, ii. Tit. 13. 1, note).

We may remark with what care and forethought Aquilius Gallus has made his formula applicable to all possible cases. Causa' is the generical expression. Oportet, oportebit oporteretve' embrace the present, the future, and the conditional. 'Præsens in diemve' (some texts add aut sub conditione') refer to what are termed the 'modalities' to which contracts are liable. 'Actio' is the 'actio in personam;' 'petitio' is the 'actio in rem;' 'persecutio' is the extraordinary proceeding before a magistrate; habes' refers to 'dominium;' tenes' to physical detention; 'possides' to possession. The expression, dolove malo fecisti, quo minus possideres,' was added to express the obligation which bound a person who had fraudulently destroyed a thing in his possession to prevent the owner reclaiming it. The stipulatio Aquiliana was equally applicable if the object was to effect a novation intended to operate as the foundation of a new contract to be really fulfilled by the parties. (D. ii. 15. 2 and 9. 2.)

3. Præterea novatione tollitur obligatio. Veluti si id, quod tu Seio debeas, a Titio dari stipulatus sit. Nam interventu novæ personæ nova nascitur obligatio et prima tollitur translata in posteriorem, adeo ut interdum, licet posterior stipulatio inutilis sit, tamen prima novationis jure tollatur: veluti si id, quod Titio tu debebas, a pupillo sine tutoris auctoritate stipulatus fuerit, quo casu res amittitur: nam et prior debitor liberatur et posterior obligatio nulla est. Non idem juris est, si a servo quis stipulatus fuerit: nam tunc prior proinde obligatus manet, ac si postea nullus stipulatus fuisset. Sed si eadem persona sit, a qua postea stipuleris, ita demum novatio fit, si quid in posteriore stipulatione novi sit, forte si condicio aut dies aut fidejussor adjiciatur aut detrahatur. Quod autem diximus, si condicio adjiciatur, novationem fieri, sic intellegi oportet, ut ita dicamus factam novationem, si condicio extiterit: alioquin si defecerit, durat prior obligatio. Sed cum hoc quidem inter veteres constabat, tunc fieri novationem, cum novandi animo in secundam obligationem itum fuerat: per hoc

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3. An obligation is also dissolved by novation, as, for instance, if Seius stipulates with Titius for that which is due to Seius from you. For by the intervention of a new debtor a new obligation arises, and the former obligation is extinguished by being transferred into the latter; so much so, that it may happen, that although the latter stipulation is void, yet the former, by the effect of the novation, ceases to exist; as for instance if Titius stipulates with a pupil not authorised by his tutor for a debt due to Titius from you, in this case Titius loses his whole claim, for the first debtor is freed, and the second obligation is void. But the case is different if it is a slave with whom he stipulates, for then the original debtor remains bound as if no one had made a subsequent stipulation. But if it is the original debtor himself with whom you make the second stipulation, there will be no novation, unless the subsequent stipulation contains something new, as, for instance, the addition or suppression of a condition, a term, or a surety. In saying that if a condition is added there is a novation, we must be understood to mean that the novation will take place

autem dubium erat, quando novandi animo videretur hoc fieri, et quasdam de hoc præsumptiones alii in aliis casibus introducebant: ideo nostra processit constitutio, quæ 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 secundum nostræ constitutionis definitiones, quas licet ex ipsius lectione apertius cognoscere.

if the condition is accomplished, but that if it is not accomplished, the former obligation remains binding. The ancients were of opinion that the novation only took place when the second obligation was entered into for the purpose of making the novation, and doubts consequently arose as to when this intention was to be supposed to exist, and different presumptions were laid down by those who treated the subject according to the different cases they had to settle. In consequence, our constitution was published, in which it was clearly decided that novation shall only take place when the contracting parties have expressly declared that their object in making the new contract is to extinguish the old one; otherwise the former obligation will remain binding, while the second is added to it, so that each contract will give rise to an obligation still in force, according to the provisions of our constitution, which may be more fully learned by reading the constitution itself.

GAI. iii. 176, 177. 179; D. xlvi. 2. 6. 8. 1, and foll.; C. viii. 41. 8.

Novation is the dissolution of one obligation by the formation of another. Ulpian says, Novatio est prioris debiti in aliam obligationem vel civilem vel naturalem transfusio atque translatio: hoc est, cum ex præcedente causa ita nova constituatur, ut prior perimatur. Novatio enim a novo nomen accepit, et a nova obligatione.' (D. xlvi. 2. 1.)

Every kind of contract could be superseded by novation, but the new contract must be either literis (see Tit. 21) or by stipulation, and the predominance of the use of stipulations as the instruments of novation was so great that the jurists generally refer to it alone. Qualiscumque obligatio sit quæ præcesserit, novari verbis potest. (D. xlvi. 2. 1.)

It was necessary that the obligation superseded should be existing at the time; but whether it was civil, prætorian, or natural was immaterial. (D. xlvi. 2. 1, 2.) And it was also necessary that the stipulation which superseded it should be binding, either civilly or naturally. In the text we have two instances of contracts which are not binding, owing to the incapacity of the parties, one made with a pupil, and one with a slave, and a distinction is drawn between them. The stipulation made with the pupil is a stipulation, though only one binding naturally: the pupil is a Roman citizen, and can pronounce the word spondeo; but a stipulation made with a slave, except when the slave speaks merely as the mouthpiece of his master, is no stipulation at all. The slave cannot use the words of the formulary. There is no contract verbis to supersede the existing obligation.