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OBLIGA-TIONES.

name for ownership is Dominium, to which is op­posed the name Obligationes as descriptive of rights against determinate persons.

It is correctly remarked (Austin, An Outline of ct course of Lectures on General Jurisprudence) " that in the writings of the Roman law}'ers, the term obligatio is never applied to a duty which answers to a right in rem" that is, a right which is good against all the world. But as the duty answering to a right in rein is only the duty of forbearance, that is, of not doing anything to inter­fere with the right, there is no inconvenience in the want of a name : the right to the exclusive enjoy­ment of any thing (corpus) is ownership ; all other people are not owners: as soon as an act is done which is an infringement of an owners right, or in other words a delictum (in one sense in which the Romans use this word) an obligation arises by force of such act (obligatio ex delicto) and gives the injured person a right of action against the wrong-doer.

A contractus required the consent of all the parties to it. Those Obligationes which were said to be founded on " consent" (consensus] were said to be so founded only because consent was suffi­cient (Gains, iii. 136), and no peculiar form of words or expression was required ; whereas in the Obligationes contracted " re," " verbis," and '* literis," certain acts, words, or writing were re­quired. In those contracts where particular forms were not required in order to convert them into Obligationes, any words or acts were sufficient, which were evidence of consent Constraint by force or threats (vis, metus\ and fraud (dolus\ and in many cases error (error, ignorantia\ either render an agreement absolutely null, or give the party who has been constrained, deceived, or in error, various modes of defence against the claims of the other party.

An Obligatio, as already observed, supposes two persons at least. But there may be more than two parties to an Obligatio, either as creditores or debitores or both, all of whom are comprehended under the general nurne of Rei. (Cic. de Or. ii. 43.) With reference to a person who is under the same obligatio, a person may be called Cor-reus. But when there are several parties to an obligatio, there are properly several Obligationes, and this is the case whether the creditor is one and the debitores are several-, or the creditores are several and the debitor is one, or both the creditores and debitores are several. In the ob­ligatio pro rata, the claims of the several creditores, or the duties of the several debitores, are deter­minate parts of a whole, which is made up by the parts being united in one formal obligatio. There are cases when several creditores may claim the whole (solidum), or several debitores may owe the whole (soliduni) : where a creditor claims the whole against several aebitores, there are in fact S3veral obligationes binding on the several debi­tores. But if one creditor has recovered the whole, or one debtor has paid the whole, the entire Ob-]igatio is at an end. (Inst, 3. tit. 1G (17).)

If an obligatio is unilateral, it only gives a right of action to one of the parties to it, as in the case of Mutuum, Stipulatio, and others ; if it is bila­teral, it gives a right to each party against the other, as emtio venditio, and locatio conductio.

The most general name for any agreement, the ©bjeet of which was to establish legal relations

OBLIGATIONES.

between the parties, is Conventio, Pactio, Pacturn Conventurn, and its essence is consent: "convcn-tionis verbuin generale est, ad omnia pertinens, fa quibus negotii contrahendi transigendique causa consentiunt, qui inter se agunt." (Dig. 2. tit. 14.) Conventiones were juris gentium, and as a genus were divisible into species. Those Conven-tiones which were reducible to certain classes were called Contractus, of which the Jus Civile acknow­ledged the four kinds already mentioned, Re, Verbis, Literis and Consensu. Of those Obliga­tiones which were established Re, the four which have been already mentioned, had special names, Mutuum, Commodatum, Depositum and Piguus , and accordingly they have been called by modern writers Contractus Nominati. But there were other Obligationes which were established Re, for which the Romans had no particular name, and accordingly they have been called by modern writers Contractus Innominati.

These obligationes are founded upon something that has been .given or done by one party, which gives him a claim against the other for .something to be given or done in return. If the matter of the conventio was a civile negotium or had a civilis causa, it formed an obligatio, and was a found­ation of an action " praescriptis verbis " or " in factum ;" or as it is clearly expressed by Julian (Big. 19. tit. 5. De praescriptis verbis,, &c.), this is the actio " ad quani necesse est confugere, quoties contractus existunt, quorum appellationes nullae jure civili proditae sunt." All the events upon which these actions could arise were reduced to the four following heads : " aut do tibi ut des. aut do ut facias, aut facio ut des, aut facio ut facias." (Paulus, Dig. 19. tit. 5. s. 5. § 1—4.) The bare agreement (pactum) both in nominate and inno­minate contracts is not sufficient to establish an obligatio: in both cases some act must be done to make the agreement become a contract, and to establish an obligatio. The nominate contracts have their particular names. The innominate con­tracts take the name o'f contracts from their re­semblance to nominate contracts; but as they are r«ot referable to any one of such contracts, they are formed into a separate class: stiil some of them have special names. These contracts, as it will appear from the description just given of them, have their foundation in -an act (a giving or doing) by one of the parties, and so far resemble contracts Re. The transaction is not completed so long as a thing remains to be given or done by the debitor; and the creditor may have his action (condictio} for the recovery of a thing which he has given, and for which the debtor has not made the return (a giving or an act) agreed upon. The creditor has also his action generally (praescriptis verbis} for the per­formance of the contract, if he prefers that, or for compensation to the amount of the injury sustained by its non-performance.

All other conventiones were simpty Pacta, the characteristic of which is that they were not ori­ginally the foundation of actions, but only of pleas or answers (exceptiones} ; that is, if an agreement (conventio, pactio) could not be referred to some class of contracts, it did not give a right of action. When there was Eo civilis causa, there was no civilis obligatio created by such conventio, and it is added (Dig. 2. tit. 14.* s. 7. § 4), " therefore a nuda pactio does not produce an obligatio but an exceptio ;" whence it follows that a nuda pactio

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