parties has given a thing, in order that he who receives it may give another thing:-Do ut des. In all such cases the person who performed his part had an option either to sue the other party for performance by an action præscriptis verbis, or to renounce the convention and recover back the thing given by him by the Condictio causa data causa non secuta.1

1 D. 19. 5. 5. § 1 and 2.

CHAPTER III.

OF OBLIGATIONS CONTRACTED BY WORDS OR WRITING.

Stipulations.

Cautionary

I.-ROMAN LAW.

THE verborum obligatio of the Romans was contracted by uttering certain formal words of style, an interrogation being put by the one party and an answer being given by the other. These obligations were called stipulations, and were binding although without consideration. But a mere promise given without an interrogation was invalid as a nudum pactum. In stipulations the question and answer must exactly correspond, thus:-"Quinque aureos mihi dare spondes?""Spondeo." "Promittis ?"-"Promitto." "Dabis ?"-"Dabo." "Facies ?"-"Faciam."

A stipulation might be absolute or conditional, and two or more persons might be concerned on either side of the contract. Where several persons bound themselves conjunctly and severally for the performance of the whole obligation, each was bound as if he had been sole debtor, and the creditor might sue whichever he pleased for the whole debt. The strict forms of stipulation were abolished by the Emperor Leo, so that a contract might be entered into by any words which clearly expressed the intention of the parties.1

Fidejussio was a contract by which a person bound himobligations. self as surety to fulfil the obligation of another, in case of the failure of the principal obligant. The obligation of the surety, which was usually entered into by stipulation, but might be reduced to writing, extended not only to the surety but to his 1 I. 3. t. 16, 17, and 20. D. 45. 1. C. 8. 38 and 39.

heirs. A surety might be interposed in natural as well as in civil obligations, so that he was sometimes liable to be sued when the principal was not; but although the cautioner might be liable for less, he could not be bound for a greater sum than the principal. Where there are several sureties, each is liable in solidum to the creditor; but they are all equally liable in relief to each other.

Sureties by the Roman law are entitled to the benefit of discussion—that is, they may insist that the principal debtor should be first sued, unless the creditor can show that it would be useless to do so in consequence of insolvency or absence. They have an action to recover from the principal debtor whatever they have lawfully paid on his account. They may also require an assignation of the debt from the creditor to enable them to operate their relief against cosureties for their shares.

By the Senatus-consultum Velleianum a cautionary obligation by a married woman was ineffectual. To this rule some exceptions were introduced before the time of Justinian, who ordained that such an obligation should be absolutely null, unless it was constituted by a public instrument signed by three witnesses.1

In Britain all cautionary obligations and guarantees must be in writing. Sureties are not entitled to the benefit of discussion, if there be no express stipulation to that effect in the instrument of caution. Any discharge by the creditor to one cautioner without the consent of the other sureties, operates as a discharge to all.2

in writing.

The obligatio literis, in the Roman law, was a written ac- Obligations knowledgment of debt, and was chiefly used in the case of a loan of money, giving rise to an action called condictio in chirographo. The creditor could not sue upon the note within two years from its date, without being exposed to the exceptio non numeratæ pecunia, whereby he was bound to prove that the money was in fact paid to the debtor. But after the lapse of two years from the date of the obligation this plea was excluded.3

1 I. 3. 21. D. 46. 1. C. 8. 41.

2 See 19 & 20 Vict. c. 60, s. 6, 5, 9.

3 I. 3. 22. C. 4. 30.

II.-ENGLISH AND SCOTTISH LAW.

English doctrine as

to consider

ation.

Does not hold in Scotland.

It has already been explained that, by the law of England, a consideration is presumed when the contract is under seal, but as a general rule, a contract not under seal is incapable of being enforced by legal proceedings, unless it be supported by a consideration, according to the maxim of the civil law, "Ex nudo pacto non oritur actio." Upon this subject Dr Browne observes:-" Ex nudo pacto non oritur actio is the rule of the civil law as well as of ours; but the meaning of nudum pactum is very different in the two laws. With them a verbal agreement, if attended with a certain solemn form of words, and then called a stipulation, was valid, though without consideration, and not nudum pactum. With us, all verbal agreements without consideration are invalid and nuda pacta. With them agreements, though in writing, at least until ratified by time, did not import a consideration; and even though they actually expressed one, it might be disputed during that time. With us deeds import a consideration; but writings of a less solemn nature do not, unless negotiable at law and the interests of third persons concerned; they may be evidence of the agreement or intent of the parties, but not conclusive evidence of sufficient consideration." As already mentioned, it is no longer necessary in England that the consideration for a written guarantee should appear in the writing.2

1

In Scotland it is not essential to the validity of an obligation that it should be granted for a valuable consideration, or indeed for any consideration whatever; the rule of the civil law, that no action arises from a naked paction, being rejected, and an obligation undertaken deliberately, though gratuitously, being binding. This is in conformity with the canon law, "by which every paction produceth action, et omne verbum de ore fideli cadit in debitum."s

1 Browne's View of the Civil Law, 1802, vol. i. p. 358, note.

2 Act 19 & 20 Vict. c. 97 (1856), s. 3.

3 Stair, 1. 10. 7.

CHAPTER IV.

OF CONTRACTS PERFECTED BY CONSENT ALONE.

contracts.

CONTRACTS perfected by consent alone are usually classed Consensual under four heads: 1st, Sale; 2d, Location, or hiring; 3d, Partnership; and, 4th, Mandate. All these are considered contracts bona fidei, and will be considered in their order.

Sect. 1.-Sale.

I.-ROMAN LAW.

form of

Sale is a contract, by which one person becomes bound to Nature and deliver a subject to another, with the view of transferring the contract. property in consideration of a money price. When one commodity is given in return for another, this constitutes exchange, not sale.1

By the Roman law all contracts of sale were good without writing, to whatever value they extended. Apart from the personal capacity to contract, three things were required for sale a subject, a price, and the consent of the parties. Though consent alone was generally sufficient, yet if it was agreed by the parties that the contract should be reduced into writing, the sale was held to be incomplete, and either party was at liberty to resile till the writing was formally executed.2

All things adapted to commerce and susceptible of appro- What may priation may be sold, unless the sale of them is prohibited by

be sold.