DCII. It is, as we have seen, from some act of a person that the obligatio arises. An obligatio is incurred by an act of the obligor either (1) with or (2) without his consent.

If, with his consent, he has bound himself to another to do or abstain from doing something, he must keep his faith. He has made a contract-" Is consensus de re aliquâ præ"standâ contractus est" (o). He may also be bound without his consent (p), in two instances (1) by intermeddling in the affairs of another, constituting himself his agent; or (2) by an act of injury done to another (pp).

In the former case he is bound by the obligation of what the Roman Law called a quasi contractus; so called because this intermeddling is neither a maleficium nor a contractus, but more nearly allied to the latter (g).

In the latter case, the obligor has either committed a crime, or done an accidental injury (more or less venial) to another. He is thereby bound ex delicto or maleficio, or ex quasi delicto or maleficio. Hence, the famous fourfold division of the facta which founded a civilis obligatio (r) in Roman Law. Of these the contract is of the greatest importance.

DCIII. The particular relation in which two persons, between whom an obligatio subsists, stand towards each other, is designated in the Roman Law by the technical expressions of creditor and debitor, creditum and debitum. These expressions are used without any reference to the

(0) Donellus, lib. xii. c. v. 12.

(p) "Extra consensum duo sunt in facto nostro, quæ nos aliis eo facto ipso jure obligent, rerum alienarum administratio suscepta, et delictum."-Ibid.

[(pp) "Obligamur aut re, aut verbis, aut simul utroque, aut consensu, aut lege, aut jure honorario, aut necessitate, aut ex peccato." Dig. lib. xliv. t. vii. 52.]

(q) To the English lawyer an illustration is offered by the doctrine that a man by intermeddling without title with the effects of a deceased person becomes Executor de son tort.

(r) Donellus, ubi sup. c. v. 2.

origin of the obligatio, though in the earlier period of the Roman Law they were restricted to the case of a loan. But Gaius observes, "Creditorum appellatione non hi tan"tum accipiuntur, qui pecuniam crediderunt: sed omnes, quibus ex quâlibet causâ debetur " (s).

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DCIV. Apart from the advantage incident to a thorough and philosophical knowledge of the subject of Obligations, some acquaintance with the nomenclature and reasoning of the Roman Law is necessary to the student of Private International Law, upon two grounds-First, as has been already mentioned, in order that he may understand the true meaning of the language of the commentators upon this law, who take for granted (as Grotius in his treatise on Public International Law does), in their readers, a knowledge of the Roman Law.

Secondly, because the Roman Law not only forms the basis of the Continental Law upon this subject, but also is used to supply the deficiencies and silence of their positive law or written codes.

This latter advantage is forcibly pointed out in Savigny's last work (t).

(s) Dig. lib. 1. t. xvi. 11, et vide 10.

(t) See Savigny, Oblig. i. § 14; ii. § 76.

NOTE TO THE FOREGOING CHAPTER.

SMITH'S " 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.
Inst. lib. iii. tt. xiv. xv. xvi.

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 dic'io-literarum obligatio.
(d) Savigny, Oblig. ii. § 52, num. 2.