Part 17 (2/2)
5 So, too, the obligation of an heir to discharge legacies cannot properly be called contractual, for it cannot be said that the legatee has contracted at all with either the heir or the testator: yet, as the heir is not bound by a delict, his obligation would seem to be quasicontractual.
6 Again, a person to whom money not owed is paid by mistake is thereby laid under a quasicontractual obligation; an obligation, indeed, which is so far from being contractual, that, logically, it may be said to arise from the extinction rather than from the formation of a contract; for when a man pays over money, intending thereby to discharge a debt, his purpose is clearly to loose a bond by which he is already bound, not to bind himself by a fresh one. Still, the person to whom money is thus paid is laid under an obligation exactly as if he had taken a loan for consumption, and therefore he is liable to a condiction.
7 Under certain circ.u.mstances money which is not owed, and which is paid by mistake, is not recoverable; the rule of the older lawyers on this point being that wherever a defendant's denial of his obligation is punished by duplication of the damages to be recovered--as in actions under the lex Aquilia, and for the recovery of a legacy--he cannot get the money back on this plea. The older lawyers, however, applied this rule only to such legacies of specific sums of money as were given by condemnation; but by our const.i.tution, by which we have a.s.similated legacies and trust bequests, we have made this duplication of damages on denial an incident of all actions for their recovery, provided the legatee or beneficiary is a church, or other holy place honoured for its devotion to religion and piety. Such legacies, although paid when not due, cannot be reclaimed.
t.i.tLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS
Having thus gone through the cla.s.ses of contractual and quasicontractual obligations, we must remark that rights can be acquired by you not only on your own contracts, but also on those of persons in your power--that is to say, your slaves and children. What is acquired by the contracts of your slaves becomes wholly yours; but the acquisitions of children in your power by obligations must be divided on the principle of owners.h.i.+p and usufruct laid down in our const.i.tution: that is to say, of the material results of an action brought on an obligation made in favour of a son the father shall have the usufruct, though the owners.h.i.+p is reserved to the son himself: provided, of course, that the action is brought by the father, in accordance with the distinction drawn in our recent const.i.tution.
1 Freemen also, and the slaves of another person, acquire for you if you possess them in good faith, but only in two cases, namely, when they acquire by their own labour, or in dealing with your property.
2 A usufructuary or usuary slave acquires under the same conditions for him who has the usufruct or use.
3 It is settled law that a slave jointly owned acquires for all his owners in the proportion of their property in him, unless he names one exclusively in a stipulation, or in the delivery of property to himself, in which case he acquires for him alone; as in the stipulation 'do you promise to convey to t.i.tius, my master?' If it was by the direction of one of his joint owners only that he entered into a stipulation, the effect was formerly doubted; but now it has been settled by our decision that (as is said above) under such circ.u.mstances he acquires for him only who gave him the order.
t.i.tLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED
An obligation is always extinguished by performance of what is owed, or by performance of something else with the creditor's a.s.sent. It is immaterial from whom the performance proceeds--be it the debtor himself, or some one else on his behalf: for on performance by a third person the debtor is released, whether he knows of it or not, and even when it is against his will. Performance by the debtor releases, besides himself, his sureties, and conversely performance by a surety releases, besides himself, the princ.i.p.al debtor.
1 Acceptilation is another mode of extinguis.h.i.+ng an obligation, and is, in its nature, an acknowledgement of a fict.i.tious performance. For instance, if something is due to t.i.tius under a verbal contract, and he wishes to release it, it can be done by his allowing the debtor to ask 'that which I promised thee has thou received?' and by his replying 'I have received it.' An acceptilation can be made in Greek, provided the form corresponds to that of the Latin words, as 'exeis labon denaria tosa; exo labon.' This process, as we said, discharges only obligations which arise from verbal contract, and no others, for it seemed only natural that where words can bind words may also loose: but a debt due from any other cause may be transformed into a debt by stipulation, and then released by an imaginary verbal payment or acceptilation. So, too, as a debt can be lawfully discharged in part, so acceptilation may be made of part only.
2 A stipulation has been invented, commonly called Aquilian, by which an obligation of any kind whatsoever can be clothed in stipulation form, and then extinguished by acceptilation; for by this process any kind of obligation may be novated. Its terms, as settled by Gallus Aquilius, are as follow: 'Whatever, and on whatsoever ground, you are or shall be compellable to convey to or do for me, either now or on a future specified day, and for whatsoever I have or shall have against you an action personal or real, or any extraordinary remedy, and whatsoever of mine you hold or possess naturally or civilly, or would possess, or now fail to possess through some wilful fault of your own--as the value of each and all of these claims Aulua Agerius stipulated for the payment of such and such a sum, and payment was formally promised by Numerius Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast thou received the whole of what I have today engaged, by the Aquilian stipulation, to pay thee?' to which Aulus Agerius replied 'I have it, and account it received.'
3 Novation is another mode of extinguis.h.i.+ng an obligation, and takes place when you owe Seius a sum, and he stipulates for payment thereof from t.i.tius; for the intervention of a new person gives birth to a new obligation, and the first obligation is transformed into the second, and ceases to exist. Sometimes indeed the first stipulation is avoided by novation even though the second is of no effect: for instance, if you owe t.i.tius a sum, and he stipulates for payment thereof from a pupil without his guardian's authority, he loses his claim altogether, for you, the original debtor, are discharged, and the second obligation is unenforceable. The same does not hold if one stipulate from a slave; for then the former debtor continues bound as fully as if one had stipulated from no one. But when the original debtor is the promisor, a second stipulation produces a novation only if it contains something new--if a condition, for instance, or a term, or a surety be added, or taken away--though, supposing the addition of a condition, we must be understood to mean that a novation is produced only if the condition is accomplished: if it fails, the prior obligation continues in force.
Among the older lawyers it was an established rule, that a novation was effected only when it was with that intention that the parties entered into the second obligation; but as this still left it doubtful when the intention was present and when absent, various presumptions were established as to the matter by different persons in different cases.
We therefore issued our const.i.tution, enacting most clearly that no novation shall take place unless the contracting parties expressly state their intention to be the extinction of the prior obligation, and that in default of such statement, the first obligation shall subsist, and have the second also added to it: the result being two obligations resting each on its own independent ground, as is prescribed by the const.i.tution, and as can be more fully ascertained by perusing the same.
4 Moreover, those obligations which are contracted by consent alone are dissolved by a contrary agreement. For instance, if t.i.tius and Seius agree that the latter shall buy an estate at Tusculum for a hundred aurei, and then before execution on either side by payment of the price or delivery of the estate they arrange to abandon the sale, they are both released. The case is the same with hire and the other contracts which are formed by consent alone.
BOOK IV.
t.i.tLE I. OF OBLIGATIONS ARISING FROM DELICT
Having treated in the preceding Book of contractual and quasicontractual obligations, it remains to inquire into obligations arising from delict.
The former, as we remarked in the proper place, are divided into four kinds; but of these latter there is but one kind, for, like obligations arising from real contracts, they all originate in some act, that is to say, in the delict itself, such as a theft, a robbery, wrongful damage, or an injury.
1 Theft is a fraudulent dealing with property, either in itself, or in its use, or in its possession: an offence which is prohibited by natural law.
2 The term furtum, or theft, is derived either from furvum, meaning 'black,' because it is effected secretly and under cover, and usually by night: or from fraus, or from ferre, meaning 'carrying off'; or from the Greek word phor, thief, which indeed is itself derived from pherein, to carry off.
<script>