CHAPTER XXIX.

OBLIGATIONS-GENERAL REMARKS UPON.

(a) DXCV. IN every society persons must not only exist, but act (aa). The Roman Law defines "actum quidem generale verbum esse, sive verbis sive re quid agatur ” (b).

Each person has his own sphere of rights limited and circumscribed by the rights of others. Within this sphere he enjoys the full liberty of acting, but he lies under an obligation (c) not to encroach, without permission, upon the sphere of his neighbour. If he does so, he lies under an obligation to make reparation to him; therefore the Roman jurists said rightly, "obligationes ex maleficio nascuntur." Nevertheless it is ordained by the Author of man's nature that he should interchange his rights with his fellow-man (d), and should continually pass beyond the sphere of his own legal action, and change and abandon his own private rights. As a matter of fact, all men do

[(a) §§ dxciii. and dxciv. are inserted as §§ dlxxx.c. and dlxxx.D. (aa) Warnkönig, Doctrina Juris Philosophica, cap. viii. § 106, De Factis et Obligationibus.

(b) Dig. lib. 1. t. xvi. 19.

(c) Though this idea is not conveyed by the term obligatio, in the Roman Law (vide post)-Hobbes says, with his usual perspicuity, "Where liberty ceaseth, there obligation beginneth."

(d) "La vie et les buts des hommes s'entrecroisent personne ne se suffit à soi-même ; pour vivre et se développer chacun doit compter sur un grand nombre de conditions placées dans la volonté de ses semblables. C'est pour s'assurer ces conditions de la part d'une personne, qu'on entre dans un contrat avec elle; et la fidélité dans les engagements est une condition et partant un droit de la vie sociale.' Ahrens, Phil. du Droit, p. 396 (Brux. 1844).

so; the consequence of this is, another class of obligations, arising not ex maleficio, but ex facto.

If a man enjoy or use the right of another with his consent, no obligation arises; but if this enjoyment or use be granted for a limited period, or under a condition, and the enjoyment or use be continued beyond the period, or without the fulfilment of the condition-if a man promise to give or do a certain thing, and the promisee in consequence acts in a manner in which he would not otherwise have acted with respect to his own rights or property, and the promisor does not fulfil his promise-in these cases, also, an obligation to make restitution or reparation arises, or, as the Roman jurists say, an obligatio ex contractu, or ex quasi contractu.

DXCVI. There may be obligations springing from promise or contract which the Civil Law of a country does not enforce (e), for which it allows no action to be brought in its Courts of municipal Law. The civil Law of all countries has prescribed that certain contracts on which an action may be brought shall be attended with certain formalities or solemnities in the execution. The stipulatio of the Romans, the English Statute of Frauds, illustrate this position. But there are other obligations which spring up amid the daily necessities of society, and which, wanting these formalities and solemnities, nevertheless found an action in courts of municipal law. These latter are not the growth of the peculiar character of any nation, but are common to all nations-a part of the necessary development of social life wherever it exists. In other words, there are two classes of obligations, namely, obligagationes juris civilis, and obligationes juris gentium. By this latter term, juris gentium, are not meant the natural oblitions of rational affections, such as gratitude, love, or obedience, but those obligations which the common neces

(e) Though it does not deny that they are contracts: vide post, $$ dexv, devvi

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sities of a common humanity have everywhere introduced into social life, such as are expressed in the following passages of the Institutes:-" Ex hoc jure gentium omnes penè contractus introducti sunt, ut emtio, venditio, "locatio, conductio, societas, depositum, mutuum, et alii "innumerabiles " (f). And of the Digest: "Ex hoc jure gentium. . . obligationes instituta; exceptis quibus"dam, quæ a jure civili introductæ sunt " (g).

The Roman lawyers, therefore, were wanting neither in philosophical truth nor practical sagacity, when they distinguished, as we shall presently see, the various causes of Obligation, and divided contracts, the principal sources of obligations, into those which were executed—

i. Re.

ii. Verbis.

iii. Literis.

iv. Consensu.

DXCVII (h). All institutes of law are connected, or appear to be connected, with each other. The philosophical investigation of the character of each institute requires an investigation into the reality or unreality of this connexion.

The Rights which flow from obligations may seem, at first sight, to be connected rather with the Rights of Family, than of Things. The ties of Obligation, like the ties of family, subsist between two definite persons. On the other hand, the essence of the relation of obligation consists in the subjection of the acts of an individual to the will of a stranger. The essence of the relation of family consists in the moral and natural bond which is

(ƒ) Inst. lib. i. t. ii. 2.

(g) Dig. lib. i. t. i. 5.

(h) Savigny (Obligationenrecht, Band i. § 4) is the author whom I have closely followed in the observations in this paragraph.

See An Epitome and Analysis of Savigny's Treatise on Obligations in Roman Law, by Archibald Brown. 1872. London.

formed, continuously and insensibly, by the free co-operation of the different members of a family.

The Right to Things does not indeed require, as its basis, the two definite persons who are indispensable to the Right called Obligation; but the two rights agree in thisthat they both consist in the dominion of a definite person over a portion of the external world. Taken together, they make up the whole Right of Property of which they are co-ordinate portions (i), though their operation be very different.

For in the Right to Things, the operation of the principle of Property is to sever-in the Right of Obligation, to bind together.

Moreover, there is this further affinity between the two Rights-the acts which the Obligor is bound to do for the Obligee are capable of being estimated in money; and the most frequent and most important obligations have no other object than the use or acquisition of Property.

DXCVIII. The affinity of the rights of obligation to the rights of Family has been pointed out. Nevertheless, in the general system of jurisprudence, the rights relating to Family, to Inheritance, and Testamentary disposition, and the rights relating to Things or to Corporeal Property, are discriminated (k) from the rights relating to Obligations, by some striking characteristics. The former are necessarily confined within a narrow range of positive Law. The liberty of individuals as to these rights is hemmed in within certain fixed limitations of instituted rules, the general features of which are the same in all civilised States.

The Rights relating to Obligations are of different kinds. With respect to them, individual liberty has far wider scope; and the rules of instituted law concerning them are of greater number and variety. Moreover, though many and various laws have been gradually and slowly built up to

(i) Savigny, R. R. i. ss. 56-8.

(k) Savigny, Obligationenrecht, i. § 4.

meet particular exigencies of society, which have generated particular obligations, the obligations by which men may be bound are not limited in number or character. Their category is not exhausted by past legislation or judicial decision. Obligations are of necessity continually increasing and assuming new forms, as the state of society becomes more complicated and artificial (); and when direct precedent is wanting, the principles of instituted law must be, from time to time, flexibly applied for their adjustment (m).

The principles of this proprium jus must be derived from the philosophical investigation of the nature of the Right of Obligation.

DXCIX. There is also another marked and peculiar feature in the history of the development of the Law of Obligations. It is this, that with respect to it the doctrines of the Roman Law have been more largely copied than those of any other portion of this jurisprudence into the Municipal Law and Codes of Europe.

Even England has not wholly denied herself this great advantage; for, though her Common Law has, for the most part, either not applied, or misunderstood and misapplied, the Roman Law on this subject, many of its principles have found their way-owing partly, no doubt, to the fact of the Lord Chancellors having, before the Reformation, been ecclesiastics versed in the Civil and Canon Law-into the English prætorian or equity jurisprudence.

An intimate acquaintance, therefore, with the provisions of the Roman Law upon Obligation, is indispensable both to those who would thoroughly master the subject, and also

(1)" Während die dinglichen Rechte einen ziemlich fest begrenzten Kreis von rechtlichen Beziehungen zur Sache nicht leicht überschreiten, bietet das Obligationenrecht eine unendliche Fälle der mannichfaltigsten Varietäten dar : sein Gebiet ist unermesslich wie alle Formen des geselligen Verkehrs unter den Menschen."-Blume, Deutsches Privatrecht, § 252.

(m) Savigny, Oblig. ubi sup.