Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

818 OBLIGATIONES. OBLIGATIONES.
effected by words, it was a necessary consequence debtor (gypdqenE tSs.a'ra brphs adi-bV) to ask his
that the parties should have power to speakl and consent to the old obligation being made into a
hear, and on this ground was founded the rule of new one of a different kind, and by the debtor
law that a mutus and a surdus could not be parties consenting. As stated by him the Obligatio Lito a Stipulatio. As to the ability of Pupilli and teris might be an obligatio contracted by a letter
Infantes with respect to Obligationes, see IMPIMES of the creditor to the debtor and the debtor's reply.
and INFANS. The Stipulator might have another In principle there would be no objection to its
party to the contract on his behalf, who was called being contracted by the debtor's consent expressed
Adstipulator. The Adstipulator had the same by a subscription in the creditor's books. The
right of action as the Stipulator, and therefore -a Literarum Obligatio of Theophilus, however, rather
payment in respect of the Stipulatio could be made seems to correspond to the other kinds of Literato him as well as to the Stipulator; and the Stipu- rum Obligatio referred to by Gains (iii. 134),
lator had an actio Mandati against the Adstipulator where he says " this obligation can be contracted
for the recovery of any thing that he had received. by chirographa and syngrpha, that is, if a man
There were some peculiarities in the Adstipula- writes that he owes a sum of money or will pay it;
tio. The right of action did not pass to the heres provided, however, there be no stipulatio on the
of the Adstipulator, and the adstipulatio of a same account." It is not impossible that Gaius
slave for his master had no effect, though in all meanrs that the creditor might convert an obligacases lie could acquire for his master by stipulatio. tion of another kind into that of pecunia expensa
The same rule of law appeared to apply to him who by the bare entry of it in his book; for it is no
was In Mancipio, for he was servi loco. If a son objection to this, as Unterholzner has it, "c that a
whoV was in the power of his father, became his unilateral writing on the part of the creditor should
Adstipulator, he did not acquire any thing for his have the effect of putting another person under an
father, though he acquired for him by stipulatio. obligatio," for an obligatio was already contracted,
Still his adstipulatio gave the son a right of action, which the creditor would have to prove, but if he
provided he was released from the father's power could prove it, the law gave him all the advantage
without a capitis deminutio, as for instance by the of a creditor for pecnnia certa, if he had complied
father's death or by being inaugurated Flamen with certain forms. Gains (iii. 137) certainly
Dialis. The same rule of law applied to a filia- may be understood as asserting that this obligatio
familias and to a wife in mann. was contracted simply " expensum ferendo:" but
Those who were bound for the Promissor were it seems to be the general opinion that this Litecalled Sponsores, Fidepromissores, Fidejussores rarum Obligatio required the consent of the debtor
[INTERCESSiO]. either orally in the presence of witnesses or by
The Obligatio Literis is illustrated by Gaius letter (Cic. pro Rose. Conl. 5; Val. Max. viii. 2.
(iii. 128) by the instance of Nomina transcripticia, ~ 2); and this is not inconsistent with Gaiuss, for
as when a creditor who has a debt due from a though he says that the debtor is bound by the
person in respect of a sale, or a letting, or a part- " expensum ferendo," that does not exclude his
nership, enters it in his book (codices, or ttabulae consent, but merely shows what is necessary in
expensi et atccepti) as a debt (expensumz ilsi tert: order to make the consent an obligatio literis.
compare Cic. pro Rose. Cos7s. 4,5; eosensu tsulisse The Obligationes Consensu were Emtio and
non dicit, cure tabulas non recitat). This was called Venditio, Locatio Condcluctio, Societas, Mandatunm.
Nomen transcripticium a re in personam, It was All Obligationes by contract of course required
called transcriptio a persona in personam, when, for consent and the evidence of consent; but "these
instance, " I have entered as due from you the debt obligationes," says Gaius (iii. 135), "are said to
which Titins owes to me, that is, if Titius has be contracted consensu, because no peculiar form of
transferred or assigned (deleyavit) you to me." words or writing was required, but the consent of
Cicero clearly alludes to this Literarum Obliga- the parties to the transaction was sufficient." Actlo in his Oration pro Roscio Co7moedo. He says cordingly such transactions could take place be(c. 5), speaking of the plaintiff's demand: " his tween persons at a distance from one another, but
claim is for a certain sum of nloney (pecsnzia certa), a verborum obligatio required the presence of the
and this must be either' data' (a case of obligatio parties. The actions founded on these Obligationes
re), or'expensa lata' (the Literarum Obligatio), consensu were Bonae fidei.
or stipulata (an obligatio \Verbis)." An Obligatio Civilis implies a right of action
Some difficulty arises about the mode of con- against the person who owes the duty (qui obverting an obligation of a different kind into an ligatur). This right of action (excontrclctu) might
Obligatio Literis. The subject is discussed by be acquired by any person who was sui juris. It
Unterholzner (Ueber die RedI des Cicerofiir den might also be acquired for him by those who were
Sceauspieler Q. Roscise% Zeitschrift, vol. i. p. 248) in in his Potestas, Manus, anld Mancipium; and by
an Ingenious essay, which, however, was written free men and slaves whom a man possessed bona
before the publication of the MS. of Gaius; and it fide, with certain exceptions. This right of action
has since been discussed by himself and by other might also be acquired by a man through the acts
writers. Unterhol 2ner conjectured that a third of a free man who was his agent, so far that he
party, with the consent of the debtor and creditor, could require the cession of the obligatio so acmade the entry in his own books; but there is no quired.
evidence in support of this assumption. Theophilus An Obligatio was tettiintated (tollitur) in vari(Ad. tit. 1. De Lit. Obtig.) represents the Literarum ous ways. The most common way was by payObligat'i. as a Novatio or a change of an obligation ment (solutio) of what was due. A uman with the
of one kind into an obligation of another kind, consent of the creditor might pay another's debt,
and this he says was effected both by words and but the two schools differed as to the legal consewriting (puasct tal ypaiujaaoOi). It was effected, quence of such payment. The Proculiani as usual
hceordinig- to him, by the creditor writing to the adherirg strictly to fundamental principles main