NOTE TO THE FOREGOING CHAPTER. SMITH'S 66 DICTIONARY OF GREEK AND ROMAN ANTIQUITIES." (Obligationes.) "There is no special name in the Roman Law for a right against a determinate person or determinate persons. The 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 a Course of Lectures on General Jurisprudence) that in the writings of the Roman lawyers 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 rem 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 anything (corpus) is ownership; all other people are not owners: as soon as an act is done which is an infringement of an owner's 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." CHAPTER XXXI. CONTRACTUS IN ROMAN LAW. DCV. We have now to consider that source of Obligation called Contract. The first division of Conventiones (a) by the Roman lawyers relates to their 1. Historical Origin; viz. (i) Legitima Conventiones (b). (ii) Juris Gentium Conventiones. The explanation of this division is the same as has been given with respect to obligations, of which, in fact, it is only an application to that particular source of obligation called Contracts. It is to be observed, however, that the jus civile recognized and gave effect to-that is, rendered actionable, sup (a) Dig. lib. ii. t. xiv. De Pactis. Ib. lib. xliv. t. vii. De Obligationibus. Cod. lib. iv. t. x. Savigny, Oblig. ii. § 52. (b) ["Conventionum autem tres sunt species, aut enim ex publicâ causâ fiunt, aut ex privatâ: privata aut legitima, aut juris gentium. Publica conventio est, quæ fit per pacem, quoties inter se duces belli quædam paciscuntur."-Dig. lib. ii. t. xiv. 5, et vide 6, 7.] Ulpian's expression of " legitima conventio" referred to the ancient solemn contracts. The expression as used by Paulus (ibid. 6), "Legitima conventio est quæ lege aliquâ confirmatur," is totally different-referring to a convention not properly belonging to the category of contract, but accidentally clothed with that character by a particular lex. Savigny (ubi supra) fully explains this and the error of supposing that this passage in Paulus warranted the notion that pactum legitimum meant a pactum on which an action might be brought by virtue of an Imperial Constitution. plied with a causa-all the more important contracts of the Jus Gentium, as the contracts of Sale, Loan, Hiring, and the like. The Legitima Conventio (c), strictly so called, disappeared in the Justinian compilations. 2. The next division relates to the character of the contract, whether it be unilateral or bilateral; though, as Savigny remarks, the Roman Law had no strictly technical expressions of this kind (d). The unilateral contract presented the simplest form of obligation; according to it one party was creditor, another debtor. The contracts arising from Loan, from Promise of a Gift, from the stipulatio, belonged to this division. The bilateral contract is illustrated by Sale, Hiring, Partnership. Between these two kinds, and partaking of the nature of both, the Romans placed the Commodatum, Depositum, Mandatum. 3. Another division relates not to the legal form of the contract, but to the object of the contracting parties—viz. The division into contracts, (i) Which had for their object the exclusive advantage of one party, which must, of course, be also unilateral; as in the instance of the Promise of a Gift, by which the condition of one party was directly bettered, or of a Depositum, by which the condition of neither party was directly bettered, but one obtained through the other the advantage of security for his property. (ii) A contract which had for its object the advantage of both parties, but which might be unilateral, as in the case of a Loan for Interest; bilateral, as in the case of a Sale or Hiring. This division is called by modern writers conventio lucra (c) E.g. the nexus-dotis dictio-literarum obligatio. tiva or gratuita, and conventio onerosa; but these are not technical expressions of Roman Law (e). 4. Another division relates to the particular form of action by which certain contracts are protected. (i) Contractus stricti juris, which were protected by Actiones stricti juris, or condictiones. (ii) Contractus bona fidei, which were protected by actiones bona fidei (f). It is to be observed that this division is not identical with the division into legitimæ, and juris gentium conventiones, though sometimes erroneously supposed to be so (g). DCVI. The true signification of the word "obligatio has been explained. It is also of importance to the student of this branch of Private International Law to understand accurately the senses in which the Roman Law used the words reus, correus, conventio, contractus, pactum, causa, which so frequently occur, both in the compilations of that Law and in the commentaries upon it (h). The term rei (i) comprises all the parties, whether two or more, whether creditores or debitores, to an obligatio. Sometimes persons under the same obligations are called correi. Properly and technically speaking, conventio is, according to the Roman Law, the genus, of which contractus and pactum are two species (k). (e) Savigny, Oblig. ii. § 52, num. 3. "Des dispositions à titre gratuit" is a well-known branch of French Law. (f) Savigny, ubi sup. num. 2. (g) Ib. § 72. (h) Ib. i. § 3, ii. §§ 72, 73. (i) "Reos autem appello non eos modo qui arguuntur sed omnes quorum de re disceptatur: sic enim olim loquebantur."-Cic. de Or. lib. ii. 43. "Conventionis verbum generale est, ad omnia pertinens, de quibus negotii contrahendi transigendique causâ consentiunt qui inter se agunt."-Dig. lib. ii. t. xiv. 1, § 3. (k) Pactum-conventum-pactio-conventio are often used, however, as the general names for any agreements. Contractus is the convention which generated a civilis obligatio, and therefore founded an actio, or action at law. Pactum, or nudum pactum (1), generated a naturalis obligatio (m) only, and therefore did not found an action at law, but only the defensive rights of Equity or Prætorian Law, called exceptio (n) and retentio. This form of the civil action was technically called the causa of the contract (o). The word causa is, indeed, sometimes used in the material and untechnical sense of the motive cause (p), but the former is the proper sense; and it is a mistake of Blackstone (q) and Kent (r), indicating a most superficial acquaintance with the Roman Law, to consider the English word "consideration " as identical with the Roman causa. DCVII. The principal division of the subject of obligation in the Roman Law related to its effect and operation; and with reference to this, conventions were divided into those upon which an action might, or might not, be brought. It may be convenient to place before the reader in this place the celebrated language of Ulpian incorporated in the Digest (8): Juris gentium conventiones" (he says) "quædam actiones pariunt, quædam exceptiones. "Quæ pariunt actiones, in suo nomine non stant, sed " (What can be more happily expressed ?)" transeunt in 'proprium nomen contractús, ut emtio, venditio 66 (1) Vide post, further observations as to pactum generally. (m) This distinction of naturalis and civilis obligatio corresponds with the division of legitimæ, and juris gentium conventiones, mentioned before. (n) Dig. lib. ii. t. xiv. 7, § 4; Mackeldey, Syst. Jur. Rom. lib. ii. $363. (0) Savigny, Oblig. ii. § 72. (p) Puchta, Pandekt. § 257 :-"Si quis sine causâ ab aliquo fuerit stipulatus, deinde ex eâ stipulatione experiatur."-Dig. lib. xliv. t. iv. 2, § 3. (q) Comment. Book ii. chap. xxx. (vol. ii. p. 444.) (r) Comment. vol. ii. p. 463. The error is corrected in a note to the edition of 1851. (s) Savigny, Oblig. ii. § 72. |