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Tit. XXIX. QUIBUS MODIS OBLIGATIO TOLLITUR.
Tollitur autem omnis obligatio Every obligation is dissolved by solutione ejus, quod debetur, vel si the payment of the thing due, or of quis, consentiente creditore, aliud something else given in its place with pro alio solverit. Nec tamen inter- the consent of the creditor. And it est, quis solvat, utrum ipse, qui makes no difference whether it is the debet, an alius pro eo : liberatur debtor himself who pays, or some one enim et alio solvente, sive sciente else for him ; for the debtor is freed debitore sive ignorante vel invito from the obligation, if payment is made solutio fiat. Item si reus solverit, by a third person, and that either with etiam ii, qui pro eo intervenerunt, or without the knowledge of the debtor, liberantur. Idem ex contrario con or even against his will. If the debtor tingit, si fidejussor solverit : non pays, all those who have become surety enuin solus ipse liberatur, sed etiam for him are thereby freed, just as, on reus.
the other hand, if a surety pays, not
cipal is freed also.
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. (Gal. 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. (Gal. iii. 175.) This form of imaginary payment was also applicable whererer anything certain of those things which • pondere, numero, mensurave constant' was due.
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 madere,' 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 tolli- 1. An obligation is also put an end tur obligatio. Est autem acceptilatio to by acceptilation. This is an imaimaginaria solutio. Quod enim ex ginary payment, for if Titius wishes verborum obligatione Titio debetur, to remit payment of that which is due id si velit Titius remittere, poterit to him by a verbal contract, he can do sic fieri, ut patiatur hæc verba de- so by permitting the debtor to put to bitorem dicere : 'Quod ego tibi pro- him the following question, 'Do you! misi, habesne acceptum ? et Titius acknowledge to have received that respondeat Habeo ; ' sed et Græce which I promised you ?' Titius then potest acceptum fieri, dummodo sic answering, 'I do.' The acknowledgfiat, ut Latinis verbis solet : exers ment may also be made in Greek, daßùv dyvápua tóga ; čxw daßóv. Quo provided it is made as it would be in genere, ut diximus, tantum eæ ob- Latin, yels daßày 8nvápua toga ; čxw ligationes solvuntur, quæ ex verbis daßóv. In this way verbal contracts consistunt, non etiam ceteræ : con- are dissolved, but not contracts made
sentaneum enim visum est, verbis in other ways : it seemed natural that factam obligationem posse aliis ver- an obligation formed by words should bis dissolvi. Sed id, quod ex alia be able to be dissolved by words ; but causa debetur, potest in stipulatio- anything due by any other kind of nem deduci et per acceptilationem contract may be made the subject of dissolvi. Sicut autem quod debetur, a stipulation, and the debtor be freed pro parte recte solvitur, ita in par- by acceptilation. And as part of a tem debiti acceptilatio fieri potest. 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 2. A stipulation has been invented, vulgo Aquiliana appellatur, per commonly called the Aquilian, by quam stipulationem contingit, ut which every obligation, whatever may omnium rerum obligatio in stipula- be the thing it concerns, is put into the tionem deducatur et ea per accepti- form of a stipulation, and afterwards lationem tollatur. Stipulatio enim dissolved by acceptilation. This AquiAquiliana novat omnes obligationes lian stipulation effects a novation of et a Gallo Aquilio ita composita est: all obligations, and was framed in the
Quidquid te mihi ex quacumque following terms by Gallus Aquilius :causa dare facere oportet, oportebit "Whatever for any cause you are or oporteretve, præsens in diemve shall or might be bound to give or do quarumque rerum mihi tecum actio for me, either now or at a future day, quæque abs te petitio vel adversus everything for which I have or shall te persecutio est, erit quodque tu have an actio with you, a petitio from meum habes, tenes, possides, pos- you, or a persecutio against you; everysideresve dolove malo fecisti, quo thing of mine which you have, hold, minus possideres, quanti quæque or possess, or might possess, or which earum rerum res erit, tantam pecuni- you have made yourself not to possess am dari stipulatus est Aulus Agerius, through some wilful fault of your own, spopondit Numerius Negidius. Item whatever shall be the value of each of e diverso Numerius Negidius in- these things, so much Aulus Agerius terrogavit Aulum Agerium : 'Quid- stipulated should be given him in quid tibi hodierno die per Aqui- money, and Numerius Negidius enlianam stipulationem spopondi, id gaged to give it ;' on the other hand, omne habesne acceptum? Respondit Numerius Negidius put to Aulus Aulus Agerius: Habeo acceptum' Agerius the question, 'All that I have vel et 'acceptum tuli.'
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. · Praesens 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 3. An obligation is also dissolved obligatio. Veluti si id, quod tu Seio by novation, as, for instance, if Seius debeas, a Titio dari stipulatus sit. stipulates with Titius for that which Nam interventu novæ personæ nova is due to Seius from you. For by the nascitur obligatio et prima tollitur intervention of a new debtor a new translata in posteriorem, adeo ut obligation arises, and the former obliinterdum, licet posterior stipulatio gation is extinguished by being tranginutilis sit, tamen prima novationis ferred into the latter; so much so, that jure tollatur: veluti si id, quod Titio it may happen, that although the tu debebas, a pupillo sine tutoris latter stipulation is void, yet the auctoritate stipulatus fuerit, quo former, by the effect of the novation, casu res amittitur: nam et prior ceases to exist ; as for instance if debitor liberatur et posterior ob- Titius stipulates with a pupil not ligatio nulla est. Non idem juris authorised by his tutor for a debt est, si a servo quis stipulatus fuerit: due to Titius from you, in this case nam tunc prior proinde obligatus Titius loses his whole claim, for the manet, ac si postea nullus stipulatus first debtor is freed, and the second fuisset. Sed si eadem persona sit, obligation is void. But the case is a qua postea stipuleris, ita demum different if it is a slave with whom novatio fit, si quid in posteriore he stipulates, for then the original stipulatione novi sit, forte si con- debtor remains bound as if no one had dicio aut dies aut fidejussor adjicia- made a subsequent stipulation. But tur aut detrahatur.Quod autem if it is the original debtor himself diximus, si condicio adjiciatur, nova- with whom you make the second tionem fieri, sic intellegi oportet, ut stipulation, there will be no novation, ita dicamus factam novationem, si unless the subsequent stipulation concondicio extiterit : alioquin si defe- tains something new, as, for instance, cerit, durat prior obligatio. Sed the addition or suppression of a concum hoc quidem inter veteres con- dition, a term, or a surety. In saying stabat, tunc fieri novationem, cum that if a condition is added there is a novandi animo in secundam obli- novation, we must be understood to gationem itum fuerat : per hoc mean that the novation will take place
autem dubium erat, quando no- if the condition is accomplished, but vandi animo videretur hoc fieri, et that if it is not accomplished, the quasdan de hoc præsumptiones alii former obligation remains binding. in aliis casibus introducebant : ideo The ancients were of opinion that the nostra processit constitutio, quæ novation only took place when the apertissime definivit, tunc solum second obligation was entered into for fieri novationem, quotiens hoc ipsum the purpose of making the novation, inter contrahentes expressum fuerit, and doubts consequently arose as to quod propter novationem prioris ob- when this intention was to be supposed ligationis convenerunt; alioquin ma- to exist, and different presumptions nere et pristinam obligationem et were laid down by those who treated secundam ei accedere, ut maneat ex the subject according to the different utraque causa obligatio secundum cases they had to settle. In connostræ constitutionis definitiones, sequence, our constitution was pubquas licet ex ipsius lectione aper- lished, in which it was clearly decided tius cognoscere.
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 constitu
tion itself. Gal. 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 tbe obligation superseded should be esisting 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.