The Ancient Library

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effected "by words, it was a necessary consequence that the parties should have power to speak and hear, and on this ground was founded the rule of law that a mutus and a surdus could not be parties to a Stipulatio. As to the ability of Pupilli and Infantes with respect to Obligationes, see impuues and infans. The Stipulator might have another party to the contract on his behalf, who was called Adstipulator. The Adstipulator had the same right of action as the Stipulator, and therefore a payment in respect of the Stipulatio could be made to him as well as to the Stipulator ; and the Stipu­lator had an actio Mandati against the Adstipulator for the recovery of any thing that he had received.

There were some peculiarities in the Adstipula-tio. The right of action did not pass to the heres of the Adstipulator, and the adstipulatio of a slave for his master had no effect, though in all cases he could acquire for his master by Stipulatio. The same rule of law appeared to apply to him who was In Mancipio, for he was servi loco. If a son who was in the power of his father, became his Adstipulator, he did not acquire any thing for his father, though he acquired for him by Stipulatio. Still his adstipulatio gave the son a right of action, provided he was released from the father's power without a capitis deminutio, as for instance by the father's death or by being inaugurated Flamen Dialis. The same rule of law applied to a filia-familias and to a wife in manu.

Those who were bound for the Promissor were called Sponsores, Fidepromissores, Fidejussores [intercessio],

The Obligatio Literis is illustrated by Gaius (iii. 128) by the instance of Nomina transcripticia, as when a creditor who has a debt due from a person in respect of a sale, or a letting, or a part­nership, enters it in his book (codices, or tabulae expensi et accepti) as a debt (eocpensum illi fert: compare Cic. pro Rose. Com. 4, 5 ; expensum tulisse non dicit, cum tabulas non recital}. This was called Nomen transcripticium a re in personam* It was called transcriptio a persona in personam,, when, for instance, " I have entered as due from you the debt which Titius owes to me, that is, if Titius has transferred or assigned (delegavif) you to me."

Cicero clearly alludes to this Literarum Obliga­tio in his Oration pro Roscio Comoedo. He says (c. 5), speaking of the plaintiffs demand : " his claim is for a certain sum of money (pecunia certa), and this must be either ' data ^ (a case of obligatio re), or ' expensa lata' (the Literarum Obligatio), or stipulata (an obligatio Verb is)."

Some difficulty arises about the mode of con­verting an obligation of a different kind into an Obligatio Literis. The subject is discussed by Unterholzner (Ueber die Redv des Cicero,fiir den Scliauspieler Q. Roscitls-., Zeitschrift, vol. i. p. 248) in an ingenious essay, which, however, was written before the publication of the MS. of Gains ; and it has since been discussed by himself and by other writers. Unterholzner conjectured that a third party, with the consent of the debtor and creditor, made the entry in his own books ; but there is no evidence in support of this assumption. Theophilus (Ad. tit. 1, D&Lit. Oblig.) represents the Literarum Obligatio as a Novatio or a change of an obligation of one kind into an obligation of another kind, and this he says was effected both by words and writing (ffi/JLcurt Kal ypdfj.iJ.aai). It was effected, According to him, by the creditor writing to the


debtor (ypdtytiv p^fj,ara irpbs avrbv} to ask his consent to the old obligation being made into a new one of a different kind, and by the debtor consenting. As stated by him the Obligatio Li­teris might be an obligatio contracted by a letter of the creditor to the debtor and the debtor's repl}'. In principle there would be no objection to its being contracted by the debtor's consent expressed by a subscription in the creditor's books. The Literarum Obligatit) of Theophilus, however, rather seems to correspond to the other kinds of Litera­rum Obligatio referred to by Gains (iii. J 34), where he says " this obligation can be contracted by chirographa and syngrapha, that is, if a man writes that he owes a sum of money or will pay it; provided, however, there be no Stipulatio on the same account." It is not impossible that Gaius means that the creditor might convert an obliga­tion of another kind into that of pecunia expensa by the bare entry of it in his book ; for it is no objection to this, as Unterholzner has it, " that a unilateral writing on tire part of the creditor should have the effect of putting another person under an obligatio," for an 'obligatio was already contracted, which the creditor would have to prove, but if he could prove it, the law gave him all the advantage of a creditor for pecunia certa, if he had complied with certain forms. Gaius (iii. 137) certainly may be understood as asserting that this obligatio was contracted simply " expensum ferendo :" but it seems to be the general opinion that this Lite­rarum Obligatio required the consent of the debtor either orally in the presence of witnesses or by letter (Cic. pro Rose. Com. 5; Val. Max. viii. 2. § 2) ; and this is not inconsistent with Gaius, for though he says that the debtor is bound by the vt expensum ferendo," that does not exclude his consent, but merely shows what is necessary in order to make the consent an obligatio literis.

The Obligationes Consensu were Emtio and Venditio, Locatio Conductio, Societas, Mandatum. All Obligationes by contract of course required consent and the evidence of consent ; but u these obligationes," says Gaius (iii. 135), "are said to be contracted consensu, because no peculiar form of words or writing was required, but the consent of the parties to the transaction was sufficient." Ac­cordingly such transactions could take place be­tween persons at a distance from one another, but a verborum obligatio required the presence of the parties. The actions founded on these Obligationes consensu were Bonae fidei.

An Obligatio Civilis implies a right of action against the person who owes the duty (qui ob-ligatur). This right of action (excontractu) might be acquired by any person who was sui juris. It might also be acquired for him by those who were in his Potestas, Manus, and Mancipium; and by free men and slaves whom a man possessed bona fide, with certain exceptions. This right of action might also be acquired by a man through the acts of a free man who was his agent, so far that he could require the cession of the obligatio so ac­quired.

An Obligatio was terminated (tollitur} in vari­ous ways. The most common way was by pay­ment (solutio} of what was due. A man with the consent of the creditor might pay another's debt, but the two schools differed as to the legal conse­quence of such payment. The Proculiani as usual adhering strictly to fundamental principles main-

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