Part 14 (2/2)
1 The leading division of obligations is into two kinds, civil and praetorian. Those obligations are civil which are established by statute, or at least are sanctioned by the civil law; those are praetorian which the praetor has established by his own jurisdiction, and which are also called honorary.
2 By another division they are arranged in four cla.s.ses, contractual, quasicontractual, delictal, and quasidelictal. And first, we must examine those which are contractual, and which again fall into four species, for contract is concluded either by delivery, by a form of words, by writing, or by consent: each of which we will treat in detail.
t.i.tLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE CONTRACTED BY DELIVERY
Real contracts, or contracts concluded by delivery, are exemplified by loan for consumption, that is to say, loan of such things as are estimated by weight, number, or measure, for instance, wine, oil, corn, coined money, copper, silver, or gold: things in which we transfer our property on condition that the receiver shall transfer to us, at a future time, not the same things, but other things of the same kind and quality: and this contract is called mutuum, because thereby meum or mine becomes tuum or thine. The action to which it gives rise is called a condiction.
1 Again, a man is bound by a real obligation if he takes what is not owed him from another who pays him by mistake; and the latter can, as plaintiff, bring a condiction against him for its recovery, after the a.n.a.logy of the action whose formula ran 'if it be proved that he ought to convey,' exactly as if the defendant had received a loan from him.
Consequently a pupil who, by mistake, is paid something which is not really owed him without his guardian's authority, will no more be bound by a condiction for the recovery of money not owed than by one for money received as a loan: though this kind of liability does not seem to be founded on contract; for a payment made in order to discharge a debt is intended to extinguish, not to create, an obligation.
2 So too a person to whom a thing is lent for use is laid under a real obligation, and is liable to the action on a loan for use. The difference between this case and a loan for consumption is considerable, for here the intention is not to make the object lent the property of the borrower, who accordingly is bound to restore the same identical thing. Again, if the receiver of a loan for consumption loses what he has received by some accident, such as fire, the fall of a building, s.h.i.+pwreck, or the attack of thieves or enemies, he still remains bound: but the borrower for use, though responsible for the greatest care in keeping what is lent him--and it is not enough that he has shown as much care as he usually bestows on his own affairs, if only some one else could have been more diligent in the charge of it--has not to answer for loss occasioned by fire or accident beyond his control, provided it did not occur through any fault of his own. Otherwise, of course, it is different: for instance, if you choose to take with you on a journey a thing which has been lent to you for use, and lose it by being attacked by enemies or thieves, or by a s.h.i.+pwreck, it is beyond question that you will be liable for its restoration. A thing is not properly said to be lent for use if any recompense is received or agreed upon for the service; for where this is the case, the use of the thing is held to be hired, and the contract is of a different kind, for a loan for use ought always to be gratuitous.
3 Again, the obligation incurred by a person with whom a thing is deposited for custody is real, and he can be sued by the action of the deposit; he too being responsible for the restoration of the identical thing deposited, though only where it is lost through some positive act of commission on his part: for for carelessness, that is to say, inattention and negligence, he is not liable. Thus a person from whom a thing is stolen, in the charge of which he has been most careless, cannot be called to account, because, if a man entrusts property to the custody of a careless friend, he has no one to blame but himself for his want of caution.
4 Finally, the creditor who takes a thing in pledge is under a real obligation, and is bound to restore the thing itself by the action of pledge. A pledge, however, is for the benefit of both parties; of the debtor, because it enables him to borrow more easily, and of the creditor, because he has the better security for repayment; and accordingly, it is a settled rule that the pledgee cannot be held responsible for more than the greatest care in the custody of the pledge; if he shows this, and still loses it by some accident, he himself is freed from all liability, without losing his right to sue for the debt.
t.i.tLE XV. OF VERBAL OBLIGATION
An obligation is contracted by question and answer, that is to say, by a form of words, when we stipulate that property shall be conveyed to us, or some other act be performed in our favour. Such verbal contracts ground two different action, namely condiction, when the stipulation is certain, and the action on stipulation, when it is uncertain; and the name is derived from stipulum, a word in use among the ancients to mean 'firm,' coming possibly from stipes, the trunk of a tree.
1 In this contract the following forms of words were formerly sanctioned by usage: 'Do you engage yourself to do so and so?' 'I do engage myself.' 'Do you promise?' 'I do promise.' 'Do you pledge your credit?'
'I pledge my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you convey?' 'I will convey.' 'Will you do?' 'I will do.' Whether the stipulation is in Latin, or Greek, or any other language, is immaterial, provided the two parties understand one another, so that it is not necessary even that they should both speak in the same tongue, so long as the answer corresponds to the question, and thus two Greeks, for instance, may contract an obligation in Latin. But it was only in former times that the solemn forms referred to were in use: for subsequently, by the enactment of Leo's const.i.tution, their employment was rendered unnecessary, and nothing was afterwards required except that the parties should understand each other, and agree to the same thing, the words in which such agreement was expressed being immaterial.
2 The terms of a stipulation may be absolute, or performance may either be postponed to some future time, or be made subject to a condition.
An absolute stipulation may be exemplified by the following: 'Do you promise to give five aurei?' and here (if the promise be made) that sum may be instantly sued for. As an instance of stipulation in diem, as it is called where a future day is fixed for payment, we may take the following: 'Do you promise to give ten aurei on the first of March?' In such a stipulation as this, an immediate debt is created, but it cannot be sued upon until the arrival of the day fixed for payment: and even on that very day an action cannot be brought, because the debtor ought to have the whole of it allowed to him for payment; for otherwise, unless the whole day on which payment was promised is past, it cannot be certain that default has been made.
3 If the terms of your stipulation run 'Do you promise to pay me ten aurei a year so long as I live?' the obligation is deemed absolute, and the liability perpetual, for a debt cannot be owed till a certain time only; though if the promisee's heir sues for payment, he will be successfully met by the plea of contrary agreement.
4 A stipulation is conditional, when performance is made to depend on some uncertain event in the future, so that it becomes actionable only on something being done or omitted: for instance, 'Do you promise to give five aurei if t.i.tius is made consul?' If, however, a man stipulates in the form 'Do you promise to give so and so, if I do not go up to the Capitol?' the effect is the same as if he had stipulated for payment to himself at the time of his death. The immediate effect of a conditional stipulation is not a debt, but merely the expectation that at some time there will be a debt: and this expectation devolves on the stipulator's heir, supposing he dies himself before fulfilment of the condition.
5 It is usual in stipulations to name a place for payment; for instance, 'Do you promise to give at Carthage?' Such a stipulation as this, though in its terms absolute, implies a condition that enough time shall be allowed to the promisor to enable him to pay the money at Carthage.
Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay today at Carthage?' the stipulation is void, because the performance of the act to be promised is a physical impossibility.
6 Conditions relating to past or present time either make the obligation void at once, or have no suspensive operation whatever. Thus, in the stipulation 'Do you promise to give so and so, if t.i.tius has been consul, or if Maevius is alive?' the promise is void, if the condition is not satisfied; while if it is, it is binding at once: for events which in themselves are certain do not suspend the binding force of an obligation, however uncertain we ourselves may be about them.
7 The performance or nonperformance of an act may be the object of a stipulation no less than the delivery of property, though where this is the case, it will be best to connect the nonperformance of the act to be performed, or the performance of the act to be omitted, with a pecuniary penalty to be paid in default, lest there be doubt as to the value of the act or omission, which will make it necessary for the plaintiff to prove to what damages he is ent.i.tled. Thus, if it be a performance which is stipulated for, some such penalty should be added as in the following: 'If so and so is not done, do you promise to pay ten aurei as a penalty?' And if the performance of some acts, and the nonperformance of others, are bargained for in the same stipulation, a clause of the following kind should be added, 'If any default is made, either as contrary to what is agreed upon, or by way of nonperformance, do you promise to pay a penalty of ten aurei?'
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