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

820 OBLIGA-TION ES. OBLIGATION ES.
name for ownership is ]Dominium, to which is op- between the parties, is Convenytio, Pactio, Pacturn
posed the name Obligaxtiones as descriptive -of rights Conventunm, and its essence is consent: "convenagainst determinate persons. tionis verbum generale est, ad onmnia pertinens, de
It is correctly remarked (Austin, An Outline of quibus negotii contrahendi transigendique causa
a course of Lectures on General Jurisprudence) consentiunt, qui inter se agunt." (Dir. 2. tit..' that in the writings of the Roman lawyers, the 14.) Conlventiones were jnris gentium, and as a
terns obligatio is never applied to a duty which genus were divisible into species. Those Conven.
answers to a right in ren," that is, a right which tiones which were reducible to certain classes were
is good against all the world. But as the duty calied Contractus, of which the Jus Civile acknowanswerihg to a right in rein is only the duty of ledged the four kinds already mentioned, Re,
f)rbearance, that is, of not doing anything to inter- Verbis, Literis and Consensu. Of those Obligafere with the right, there is no inconvenience in the tiones which were established Re, the four which
vant of a name: the right to the exclusive enjoy- have been already mentioned, had special names,
ment of any thing (corpus) is ownership; all other Mutuum, Commodatum, Depositum and Piglnus,
people are not owners: as soon as an act is done and accordingly they have been called by modern
which is an infringement of an owner's right, or in writers Contractus Nominati. But there were
other words a delictum (in one sense in which the other Obligationes which were established Re,
Rlomans use this word) an obligation arises by for which the Romans had no particular name,
force of such act (obligfatio ex delicto) and gives and accordingly they have been called by modern
the injured person a right of action against the writers Contractus Innominati.
wrong-doer. These obligationes are founded upon something
A contractus required the consent of all the that has been given or done by one party, which
parties to it. Those Obligationes which were said gives him a claim against the other for something
to be founded on "consent" (consensus) were said to be given or done in return. If the matter of
to be so founded only because consent rwas sufi- the conventio was a civ le negotium or had a civilis
cient (Gaius, iii. 136), and no peculiar form of cansa, it forned an obligatio, and was a foundwords or expression was required; whereas in the ation of an action "praescriptis verbis " or " in
Obligationes contracted " re," " verbis," and fectum;" or as it is clearly expressed by Julian
" literis," certain acts, words, or writing were re- (Dig. 19. tit. 5. De p?aescriptis veclis, &c.), this is
quired. In those contracts where particular forms the actio "ad quam necesse est confugere, quoties,were not required in order to convert them into contractus existunt, quorum appellationes nullae
Obligationes, any words or acts were sufficient, jure civili proditae sunt." All the events upon
which were evidence of consent. Constraint by which these actions could arise were reduced to
force or threats (vis, s2nettus), and fraud (dolecs), the four following heads: "aut do tibi ut des. aut
and in many cases error (error,. iyoroantia), either do ut facias, anut facio ut des, ant facio ut facias."
render an agreement absolutely ill, or give the (Paulus, Dig. 19. tit. 5. s. 5. ~ 1-4.) The bare
party who has been constrained5 deceived, or in agreement (pactulm) both in nominate and innoerror, various modes of defence against the claims rinate contracts is not sufficient to establisll an
of the other party. obligatio: in both cases some act must be done to
An Obligatio, as already observed, supposes two make the agreement become a contract, and to
persons at lea'st. But there nmay be more than establish an obligatio. The nominate contracts
two parties to an Obligatio, either as creditores or have their particular names. The innominate condebitores or both, all of whom are comnprehended tracts take the name of contracts from their reu.nder the general narnme of Rei. (Cic. de Or. ii. semblance to nominate contracts; but as they are
43.) With reference to a person who is under not referable to any one of such contracts, they
the same obligatio, a person may be called Cor- are formed into a separate class: still some of them
reus. But when there are several parties to an have special names. These contracts, as it will
obligatio, there are properly several CObligationes, appeal'fiom the description just given of them, have
and this is the case whether the creditor is one their foundation in an act (a giving or doing) by
and the debitores are several-, or the creditores one of the parties, and so far resemble contracts Re.
are several and the debitor is one, or both the The transaction is not completed so long as a thing
creditores and debitores -are several. In the ob- remains to be given or done by the debiter; and
ligatio pro rata, the claims of the several creditores, the creditor may have his action (condictio) for the
or the duties of the several debitores, are deter- recovery of a thing which he has given, and for
ainmate parts of a whole, which is made up by the which the debtor has not made the return (a giving
parts being united in one formal obligatio. There or an act) agreed upon. The creditor has also his
are cases when several creditores may claim the action generally (praescripZis velris) for the perwhole (solidcum), or several debitores may owe forilance of the contract, if he prefers that, or for
the whole (soliduzn): where a creditor claims the compensation to the amount of the injury sustained
whole against several lebitores, there are in fact by its non-perfornance.
ssveral obligationes binding on the several debi- All other conventiones were simply Pacta, the
tores. But if one creditor has recovered the whole, characteristic of which is that they were not orior one debtor has paid the whole, the entire Ob- ginally the foundation of actions, but only of pleas
ligatio is at an end. (Inst. 3. tit. 16 (17).) or answers (exceptiones); that is, if tan agreement
If an obligatio is unilateral, it only gives a right (conieeuio, paciio) could not be i'eferied to some
of action to one of the parties to it, as in the case class of contracts, it did not give a fight of action.
of Mutuum, Stipulatio, and others; if it is bila- When there was ro civilis causa, there was no
teral, it gives a right to each party against the civilis obligatio created by such conventio, and it
other, as emtio venditio, and locatio conductio. is added (Dig. 2. tit. 14. s. 7. ~ 4), " therefore a
The most general name for any agreement, the luda pactio does not produce an obligatio but an
object of which was to establish legal relations exceptio;" whence it follows that a nnda pactio