LAW
84
LAW
C. Actions) supplied various forms for the heredUas
petitio, CoUatiOj or the return of advancements, was
required in order that there might be a fair distri-
bution. This is the collation of the modern civil
codes. .
Another means for the acquisition of ownership was adrogation, whereby a person sui juris was adopted into the paternal power of another. Originally the obligations of the adrogatus were strictly and logically extinguished, but the injustice to creditors was the subject of remedial legislation.
^ain, one might acquire the goods of another by 9ecHo or venditio bonorum, a sale at auction for the benefit of creditors.
The rights ^win^ out of pledge were also a means for the acquisition of property. This institution was, in its inception, only a fiduciary pact without means of enforcement, and the title passed to the pledge credi- tor; later, it took the form of mgnusj or pledge proper, whereby the creditor was placed in possession of a moveable with certain duties towards the debtor; a form of the same contract was extended to immove- ables, and this was known as antichresis. In anii- chresis the creditor was placed in possession of the im- moveables and obliged to pay, first, his interests and charges, and then to deduct from the principal debt whatever he received as revenue. Hypothecay or mortgage, was a development and in scientific theory is the substructure of the modern law of mortgage. Privileges were akin to modern civil-law rights of the same name and to the liens of the common law; but possession was not of prime importance.
Pledge was extinguished by the extinction of the principal debt, by express release, by expiration of the time, by destruction of the thing pledged, etc. The actions, growing out of it were the Servian and general hypothecary, or quasi-Servian action.
Real rights (in re) differ essentially from personal rights (ad rem) J or obligations, which have persons as their immediate objects. Even these have things as their remote objects, since they tend to the attainment of a thing through a particular person and by reason of their being usuaUy convertible into a money value. Obligations (dismissing at once those which were purely natural and hence imenforceable) were broader than either contract or tort, and included liability arising from both. They were civil or praetorian, and could arise from contract, quasi-contract, delict, and quasi-delict. In conventional obligations some thmgs were essential, others accidental. Contractual obliga- tions arose through delivery of a thing, through woras, through writing, or merely through the consent of the parties; and were, accordingly, contracts re, verbis, lit- teris, or consensu.
Contracts re were the bailments, loan for use, loan for consumption, deposit, and pledge.
Contracts verbis were entered into by a formal stipu- lation consisting of a direct question and an adequately responsive answer. They could take immediate effect, could commence in/uturo, or could be conditional. Stipulations were praetorian, judicial, common, and Aouilian: the praetorian and judicial were scarcely voluntary. The common stipulation was used in the ordinary affairs of men and by persons in fidu- ciary relationships (e. g., in this form the tutor »ve security for the faithful discharge of his duties). The Aquilian stipulation, in connexion with acceptila- Uo, was a means of general release for the dissolution of any obligation. Stipulations required the same con- sensual elements that were necessary in other agree- ments, in addition to their own peculiar formalism. If a conditional response were made to a direct question, the stipulation was void; so also, if made by letter or messenger. The relation of suretyship could be created by stipulation: suretyship was an accessory contract, and the surety was known as the fidei^ fussor. Sureties had the beneficium divisionis, which
was conceded by Hadrian. They enjoyed also the
beneficium ordinis, invented by Justinian, and the
beneficium cedendarum actionum, or subrogation to the
ri^t of action of the creditor against uie principal
debtor, or pro rata against the co-sureties.
Contracts litteris took their juridical efficacy from writings, which evidenced the fact that an obhgation subsisted or that it had been extinguished. The latter were called apochce. Writing evidencing a sub- sisting obligation were syngraphic or chirographic respectively, as they expressed a mutual or a unilat- eral obligation. A writmg in the book of the debtor which supported the creditor's entry was conclusive, and even the creditor's entry created a strong pre- sumption.
Contracts consensu were not peculiar in that they required consent, which was requisite in all contracts. Their peculiarity was in the fact that consent alone sufficed. They were five in number: buying and sell- ing (emptio-venditio); letting and hiring (locaHo-oon- ductio); the emphyteuticary contract; partnership (sodetas); and mandate (gratuitous agency). In sale, there was necessary the consent of the parties, an object and an agreed price. Letting and hiring might be considered a temporary' sale, and the essential inci- dents of a valid contract were the same as in sale. Emphyteusis strictly was neither a sale nor a letting; it was rather a quit-rent lease dependent in its dura- tion upon the payment of the agreed canon. Its special incidents were a quasi-ownership in the tenant and a right of pre-emption in the dominus. Similar to emphyteusis was the right of superficies; but as it applied only to the surface — that is, to buildings — it was less permanent. Partnership was general or universal; particular or special; and. finally, singular. As consent was of its essence, withorawal of consent worked its dissolution. Partnership was an entity distinct from the individual partners; it gave rise to the actio pro socio. The leonine partnership (sodetas leonina) was illegal. Mandate was a consensual con- tract whereby one undertook gratuitously to attend to an affair for another; it was commissioned agency and was an actual contract; it was distinguishable from negotiorum gestio (uncommissioned agency) in that the latter belonged to quasi-contract. It gave rise to the actio niandati, directa, or contraria.
The contracts which had a definite name and form of action for their enforcement were nominate con- tracts. There were others termed innominate be- cause they had no special names: these were summed up in the four formulae: Do, ut des; Do, ut facias; Facio, ut des; and Facio, ut facias. They were en- forcea by the general action in factum or by the action prcBscriptis verbis.
All of the foregoing contracts, nominate and in-' nominate, were contracts in the true sense of the word, but there was another class of relations in which the law imposed duties and obligations as if the parties had actually contracted. These were the so-called quasi-contracts, and the forms were negotiorum gestio, tutorship, inheritance, administration in common, hereditaiis aditio, indebiti solutio (payment under mis- take of fact), and a few others of similar nature.
Obligations could be acauired through the paternal and dominical powers ana through mandataries. A civil obligation once constituted could be extinguished by an exception (plea in bar) or by its own terms. Pleas in bar were divers and could arise from a will, a contract or pact, a judicial decision, etc.
The means of extinction common to all obligations were: solutio (payment); compensatio (set-off); con- fiisio (merging of the character of debtor and creditor) ablatio et consignatio (tender); rei interitus (loss of the thing); novaiio (substitution ot obhgations as to per- son or thing); prasrriptio (lapse of time); and furtner, in proper cases, by arc^ptilaiio (release) and by viutuui dissetisus (mutual change of intention).
