Sed et si in alium contractum res non transeat, subsit tamen causa; eleganter Aristo Celso respondit, esse obli"gationem. Sed cum nulla subest causa præter "conventionem, hîc constat non posse constitui obliga"tionem. Igitur nuda pactio obligationem non parit, sed parit exceptionem " (t).

Originally, therefore, contractus denoted an actionable convention, and pactum one not actionable.

In course of time, however, the stern Civil Law yielded, and conventions, which were not contractus, became actionable; and though the distinction remained, so to speak, in the books, practically many pacta became actionable, though without a technical name, which the glossators endeavoured, not very happily, to supply, by speaking of vestita, as opposed to nuda pacta (u). Pactum, therefore, cannot be always considered as a convention which did not found an action.

DCVIII. Upon this division of contracts into actionable and not actionable, the Roman Law founded the four species of actionable contracts already adverted to :'Obligationes" (both Gaius and Justinian said) "quæ sunt "ex contractu, aut re contrahuntur, aut verbis, aut literis, "aut consensu (a).

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(t) Dig. lib. ii. t. xiv. 7, §§ 1, 2, 4; et vide ibid. tit. xiv. 45. "Divisionis placitum, nisi traditione vel stipulatione sumat effectum ad actionem, ut nudum pactum, nulli prodesse poterit." And again, Ulpian, speaking of an action founded on a promise of reward for discovering a fugitive slave, says, "Et quidem conventio ista non est nuda, ut quis dicat ex pacto actionem non oriri, sed habet in se negotium aliquod ergo civilis actio oriri potest, id est præscriptis verbis."

Dig. lib. xix. t. v. 15.

Cod. lib. ii. t. iii. 21-28 (De Pactis).

Savigny, Oblig. ii. § 72, note (e).

See also Warnkönig's Institutiones Juris Romani Privati, p. 287.

(u) Savigny, Oblig. ii. § 73, nn. (x) (y).

(x) Gaius, iii. 89. Inst. lib. iii. t. xiii. 2; tt. xiv. xv. xxi. xxii.

[The Digest (lib. xliv. t. vii. 1) says, “Obligationes ex contractu,

aut re contrahuntur, aut verbis, aut consensu."]

DCIX. Of these four species of obligationes ex contractu, two (consensu, re) are distinguished in principle from the two other ones (verbis, literis) (y).

The causa by which a convention passes from the category of pacta and enters that of contractus, and becomes protected by a civilis obligatio or actio, is either res or con

sensus.

a. Re contracta obligatio is the title of a contract which was originally concluded by the delivery of a thing, which the donee bound himself to restore to the donor. And under this particular aspect this contract embraced the four species of—

1. Mutui datio.

2. Commodatum.
3. Depositum.
4. Pignus.

B. Consensu contracta obligatio was the title of a contract which, on the ground of its substance and contents, was actionable, and did not require the aid of any technical or external causa.

Under this contract were ranged the four species of

1. Emtio, venditio.

2. Locatio, conductio.

3. Societas.

4. Mandatum.

DCX. The two remaining kinds of contract relate to the forms of the particular convention; but there is a more (2) general aspect under which this contract of consent must be regarded: according to the Roman jurist, it had for its object not only the giving of a thing, but also the doing of an act; and hence arose the famous division, which has found its way into modern continental juris

(y) Savigny, Obl. § 72.
(z) Ibid. § 73.

prudence, and has been even eulogized by the English Blackstone (a).

1. Do ut des.

2. Do ut facias.

3. Facio ut des.

4. Facio ut facias (b).

This contract, under this general aspect, did not produce the particular actio commodati or depositi, but an actio which comprehended all cases under the name of actio præscriptis verbis or actio civilis.

y. Verborum obligatio is the title of a contract which was entered into through the medium of the spoken question of the Creditor and the answer of the Debtor, both conducted according to a set form of words (c): hence arose the unilateral contract which, under the name of Stipulatio, was, until the time of Justinian, the peculiar and favourite form of Roman convention, and under which title some of the most important doctrines relating to Obligation and Contract are, even in the Justinian compilations, discussed (d).

8. Literarum obligatio was the title of a contract which, before the time of Justinian, was concluded through a particular form of written words, and founded on the domestic manners of the old Roman citizens with respect to money transactions (e).

(a) Commentaries, Book ii. chap. xxx. (vol. ii. pp. 445–5.)

(b) Sometimes (Warnkönig, Instit. § 350) called contractus innominati, or incerti, but improperly according to Savigny.

(c) "Dare spondes? Spondeo," cf. Plautus, Captivi, act. iv. scen. ii. 118.

["Dabis? Quidni?" Dig. lib. xlv. t. i. 1, § 2. "Spondes ? Spondeo. Promittis? Promitto. Fidepromittis? Fidepromitto. Fidejubes? Fidejubeo. Dabis? Dabo. Facies? Faciam." Inst. lib. iii. t. xv. 1.]

(d) [Dig. lib. xlv. t. i. Inst. lib. iii. t. xv.] Warnkönig, Instit. $ 452.

(e) [Inst. lib. iii. t. xxi.] Mackeldey, Syst. lib. ii. § 414. See his very learned note.

OMNIS OBLIGATIO NASCITUR

I. Ex conventione cum actione, vel quæ parit II. Ex conventione sine actione, vel quæ non parit actionem aut obligationem

actionem sed exceptionem

CHAPTER XXXII.

OBLIGATIONS-ENGLISH LAW.

DCXI. THE Law of England and of the United States. of North America upon the subject of Obligation (a) is principally derived from the following sources:

a. The judgments of Courts of Common Law (aa). B. The Statute of Frauds (b).

y. The judgments of the Courts of Equity.

And to these may be added, with respect to some of the States which constitute the great North American Republic, S. The Roman Law.

DCXII. The Common Law (c) of England considers

(a) English authorities referred to: Blackstone's Commentaries, book ii. c. xxx. Title by Contract. Stephen's Commentaries, book ii. pt. ii. ch. v.

The Law of Vendors and Purchasers of Estates, by E. Sugden, Lord St. Leonards, especially c. iv. Of Parol Agreement, general construction of statute.

Smith's Law of Contracts.
Addison's Law of Contracts.

United States authorities :

Kent's Comm. vol. ii. lecture 39. [The starred paging is given.] [(aa) In England the Courts of Common Law and Equity have now been fused into one Supreme Court of Judicature, which administers both law and equity, giving all the remedies which before the fusion either set of Courts could give (36 & 37 Vic. c. 66); and a similar fusion has been made in Ireland (40 & 41 Vic. c. 57).]

(b) This Statute is generally adopted throughout the United States of North America with the exception of Louisiana. Kent, vol. ii. p. 494.

(c) Blackstone remarks (book ii. c. xxx., vol. ii. p. 443) that "almost all the rights of personal property (when not in actual