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819

OBLIGAT10NES.

tamed that the debtor was still under his obligatio, but if the money was demanded of him by the creditor he had a good plea of dolus malus (exceptio doli mail).

An obligatio might be terminated by Accepti-latio. An obligatio contracted per aes et libram might be determined in the same way, and also one arising, "ex judicati causa." [nexum.] An obligatio might also be determined by Novatio, which is the change of an existing duty (dcbitum) into another obligation, and the determination of the former obligation. (Dig. 46. tit. 2. De Nova-tionibus et Delegationibus.} This is explained by the following instance (Gaius, iii. 176):— If I stipulate that Titius shall give me what is due from you, a new obligatio arises by the interven­tion of a new person, and the former obligation is determined by being replaced by the latter ; and sometimes a former obligatio may be determined by a subsequent stipulatio, though the subsequent stipulatio may be invalid.— If the stipulation was from the same person, it required the addition of something to effect a Novatio, as the addition of a condition, or a sponsor, or the circumstance of adding to or subtracting from the time contained in the terms of the covenant. As to the case of a condition, it was the law in the time of Gaius that there was no Novatio until the condition was ful­filled, and till that time the former obligatio con­tinued. The opinion of the great jurist Servius Sulpicius as to the addition of a condition imme­diately effecting a Novatio, was not law in the time of Gaius (olio jure utimur}.

An obligatio was also determined by the Litis contestatio, if the proceedings had taken place in a Legitimum judicium. It is stated generally under the articles Litis contestatio and Legitimum judi-cium, what is the import of these terms respec­tively. The original obligation (principalisobligatio) was determined by the Litis contestatio, and the

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defendant (reus} was then bound (tenetur) by the Litis contestatio. If he was condemned, the Litis contestatio ceased to have any effect, and he was bound by the judgment (ex causa judicati). It was a consequence of these doctrines that after a Litis contestatio in a Legttimtrni judicium, a man could not bring his action on the original contract, for if his declaration or demand was Dari mini oportere, it was bad (inutilis}, for after the Litis contestatio the Dari oportere had ceased. In the case of a Judicium quod imperio continetur, the obligatio existed and the action could be brought, but the demand might be answered by a plea (exceptio} of a res judieata o? in judicium deducta. In the judicia qnae iimperio, &c., the exteptio rei judi-catae corresponds to the condemnatio in the Legi-tima judicia, and the Exeeptio rei in judicium deductae to the Litis eontestatio. (Keller, [feber Litis Contestation^ p. 11, &c. ; Gaius, iii. 180.)

Obligationes arising from Contract passed by universal succession to the heres. There were no means of transferring Obliga-tiones from the credi­tor to another person, except by a Novatio, which was effected by the assignee stipulating with the debitor with the consent of the creditor, the effect of which was to release the debitor from his former Obligatio and to bind him by a new one. If this novatio was not effected, the assignee could only sue as the cognitor or procurator of the assignor, and not in his own name. (Gaius, ii. 38, &c.)

From the consideration of Obligationes arising

OBLIGATIONES.

from Contracts, Gains (iii. 182) passes to the con­sideration of Obligationes " quae ex delicto ori-untur;" and these delicts which are the found­ation of these obligationes, are furtum, bona, rapta or r.apina, damnum and injuria. All these obligationes he considers to be comprised in one genus, whereas the obligationes ex contractu are distributed into four genera.

The arrangement by the Roman jurists of Obli­gationes ex delicto with Obligationes ex contractu, was founded on the circumstance that both classes of Obligationes were the foundation of rights against a determinate individual or determinate indivi­duals ; but there is an important difference in the origin of the two rights. The rights ex contractu are rights founded on lawful acts ; and rights ex delicto are rights founded on infringements of other rights.

The Obligationes quasi ex contractu are not enumerated by Gains, but they are discussed in the Institutes of Justinian (3. tit. 27). These Obligationes do not properly arise either from con­tract or delict, but inasmuch as they are founded on acts, which are not delicts, they were considered as belonging to contract rather than to delict. In­stances of these quasi contracts, enumerated in the Institutes, are "absentis negotiorum gestio " [NE-gotiorum gestorum actio], the "tutelae ju­dicium," a "• communis res sine societate," as when a thing has been bequeathed and given to several persons; and some other instances.

These quasi contracts are arranged in the Insti­tutes of Justinian after Obligationes ex contractu ; and the Obligationes quasi ex delicto are placed immediately after the Obligationes ex delicto. Instances of these Obligationes quasi ex delicto, enumerated in the Institutes (4. tit. 5), are, " si judex litem suam fecerit," and the case of " de~ jectum effusumve," and others. [dejecti, &c.]

The nature of an Obligatio may now be more clearly understood. An Obligatio implies two subjects or persons at least, creditor, or he who has the right, and debitor* or he who owes the duty: these two terms, which strictly apply to creditor and debtor in the common sense, are also used to express generally the relation of the parties to an Obligatio. Obligatio (literally a binding) primarily denotes the facts by which the legal relation between the parties is established. It also denotes the duty or obligation owing by one of the parties to the contract (debitor} to the other party (creditor}, if the obligatio is unilateral ; and the duties mutually owing from the one to the other, if the obligatio is bilateral. The word, which, as opposed to obligatio or " binding," ex­presses the determination of such binding, is " soteio ;" and generally some form of the word "sol'vo" is the appropriate term to express the legal' termination of the obligatio. But inasmuch as duties owing by one party to the contract, or duties mutually owing by the parties to the con­tract, imply a right in the other party to the con­tract, or imply mutual rights in the parties to the contract, the word obligatio is- often used to express also the right wliich i& established by the obligatio: and it is also used to express the whole relation between debitor and creditor. Thus, the right of the Creditor is spoken of as his Obligatio, and the duty of the Debitor as his Obligatio. There is no special name in the Roman law for a right against a determinate person or determinate persons. The*

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