BOOK III. Pt. 1. Ch. II. a Sc. pupillus. b Cf. § 103. alius occiderit, de dolo malo actionem in eum dandum plerique recte putant, quia tu a me liberatus sis.-1. 18, § 5 eod.' Gai. In heredem eatenus daturum se eam actionem pollicetur, quatenus ad eum pervenerit, i.e. quatenus ex ea re locupletior ad eum hereditas pervenerit.-1. 26 eod.* Ulp. Sed et ex dolo tutoris si factus est locupletior," puto in eum dandam actionem.— Item si quid ex dolo procuratoris ad dominum pervenit, datur in dominum de dolo actio, in quantum ad eum pervenit.-1. 15 pr., § 2 eod.3 EXTINCTION AND TRANSFER OF OBLIGATIONS. Every obligation carries with it the purpose of being again extinguished; dissolution of the obligation is the ultimate object and necessary result of the full exercise of that right to which the creditor can lay claim as arising from it. The dissolution (solutio in the wider sense) can first of all ensue by satisfaction. being rendered to the claim of the creditor (satisfactio), whether by performance, i.e., discharge of the debtor's liability (solutio in the narrower sense), or by agreement of the parties; or lastly by some other legal 1 If a slave whom you had promised to me has been killed by another, most are right in thinking that an action for fraud is to be allowed against him, because you have been exonerated by me. 2 Against the heir (the proconsul) promises to allow such action to the extent of his benefit, that is, so far as by reason of such circumstance a richer inheritance has devolved upon him. 3 But if he has been enriched also by dolus of the guardian, I am of opinion that an action should be allowed against him.— The like, if benefit has accrued to a principal from the fraud of his agent, an action de dolo is allowed against the principal for the amount of his benefit. a BOOK III. Pt. I. incident which materially involves satisfaction of the creditor." But the obligation can also be destroyed without satisfactio, by an outward event, so that the $140. debtor is released without reference to the will, and without material satisfaction, of the creditor. Paul. Solutionis verbum pertinet ad omnem liberationem quoquo modo factam, magisque ad substantiam obligationis refertur, quam ad nummorum solutionem.-1. 54, D. de solut. 46, 3.1 : Ulp. Solutionis verbo satisfactionem quoque omnem accipiendam placet.-D. 50, 16, 176.2 Marcian. Quodsi acceptum latum sit solutionis quidem verbum non proficiet, sed satisfactionis sufficit.-1. 49, D. de solut.3 Whilst by the performance of that which is owing every obligation is extinguished conformably to its nature and purpose, in (direct) dissolution of an obligation by agreement between the parties strict conformity between the act of release and act that created the obligation is always requisite, except as to novation. ... Pompon. Prout quidque contractum est ita et solvi debet ut cum re contraxerimus, re solvi debet; . . . et cum verbis aliquid contraximus, vel re vel verbis obligatio solvi debet; .. aeque cum emptio vel venditio vel locatio contracta est, quoniam consensu nudo contrahi potest, etiam dissensu contrario dissolvi potest.1. 80 eod.1 1 The word solutio (payment) extends to every release in whatever way made, and relates more to the contents of the obligation than to the payment of money. b 2 It is held that by the word 'payment' we must understand also every satisfaction. 3 But if a discharge has been given . . . the word payment will not avail, but satisfaction is enough. Everything must also be discharged according as it was contracted; so that, when we have made a contract with a § 143. Ch. II. BOOK III. Pt. I. Ch. II. Ulp. Fere quibuscumque modis obligamur, iisdem in contrarium actis liberamur.-D. 50, 17, 153.1 According to their effect, the several grounds of extinction are distinguishable by their either destroying the obligation ipso iure (directly and substantially), or as engendering a peremptory exceptio to the claim Cf. D. 50, 16, (actio) of the creditor.a 10; 12, 6, 40 pr. Cf. § 103. Marc. Desinit debitor esse is, qui nactus est exceptionem iustam nec ab aequitate naturali abhorrentem.-1. 66 eod.3 § 139. SOLUTIO. Every obligation has for its object the solutio eius quod debetur' (discharge, performance, payment). It is the natural and normal mode of extinction that substantially destroys every obligation. The following are the requisites of solutio. (1) The object owing (thing or act) must itself be performed, and that completely; an only partial performance, as part payment, will not usually be accepted by the creditor; datio in solutum,' that is, performance of another object in place of payment, can only come about by the consent of the creditor. Gai. iii. § 168: Tollitur autem obligatio praecipue solutione eius quod debeatur: unde quaeritur, si quis consentiente creditore aliud pro alio sol thing, it must be discharged with a thing, . . . and when we have contracted anything with words, the obligation must be discharged either with a thing or with words . . . in like manner, if a contract has been made of purchase or sale or hire, since the contract can be made by mere consent, it can be discharged also by agreement to the opposite effect. 1 As a rule, in whatever ways we become liable, by the same acts to the opposite effect are we released. 2 He ceases to be a debtor who has acquired a plea that is good in law and not repugnant to natural equity. verit, utrum ipso iure liberetur, quod nostris Modestinus respondit, si non hac lege mutua Pomp.: Cassius ait, si cui pecuniam dedi, ut eam creditori meo solveret, si suo nomine dederit, neutrum liberari, me quia non meo nomine data sit, illum quia alienum dederit; ceterum mandati eum teneri. Sed si creditor eos nummos sine dolo malo consumpsisset, is qui suo nomine eos solvisset, liberatur.-1, 17. D. h. t. (de sol. 46, 3).3 (2) The performance can be rendered, not merely 1 Now an obligation is extinguished primarily by payment of what is due. Whence arises the question whether, if a man with the consent of his creditor, pays instead of another, he is discharged by operation of law, as our leaders hold, or continues bound in law, but should be defended against a claimant by a plea of fraud, which is the view of the authorities of the opposite school. 2 Mod. answers, that if the advance has not been made upon the condition that it should be allowable to pay back what has been received by instalments, the payment of interest for the whole debt is not thereby impeded, if the debtor, who was backward with the repayment of the whole when the creditor was prepared to receive the whole, merely deposited a part. 3 Cass. says, if I have given money to any one to pay to my creditor, neither is discharged, if he gave it in his own name: not I, because it was not paid in my name; not he, because he paid that which belonged to another; that he, moreover, is liable to the action of mandate. But if the creditor had spent such money without bad intention, he that should have paid it in his own name will be discharged. BOOK III. Pt. J. Ch. II. a Just. iii. 19, 4. D. 46, 3, 23. For English Law, see Pollock, Cont.' pp. 423-4. to the creditor himself, but also to one designated by him, or else to the person empowered to accept it (e.g., solutionis causa adiectus)." As a rule, it matters not who renders it.b Ulp.: Vero procuratori recte solvitur; verum autem accipere debemus eum, cui mandatum est vel specialiter, vel cui omnium negotiorum administratio mandata est.-Sed etsi non vero procuratori solvam, ratum autem habeat dominus. quod solutum est, liberatio contingit: rati enim habitio mandato comparatur.-1. 12 pr., § 4, D. eod.1 Paul. Quod iussu alterius solvitur, pro eo est, quasi ipsi solutum esset.-D. 50, 17, 180.2 Id. Cum iussu meo id quod mihi debes solvis creditori meo, et tu a me et ego a creditore meo liberor.-1. 64, h. t.3 Gai. iii. 160: Plerisque placuit, si debitor meus manumisso dispensatori meo per ignorantiam solverit, liberari eum, cum alioquin stricta iuris ratione non posset liberari eo quod alii solvisset, quam cui solvere deberet." Id. Solvendo quisque pro alio, licet invito et 1 But to an actual agent payment is rightly made. Now we ought to treat him as an actual one to whom either a special commission has been given, or who has been commissioned to manage the whole of the affairs. But even if I do not pay the actual agent, but the principal should have approved the payment made, a discharge ensues; for the approval is held analogous to the commission. 2 If any payment has been made by the direction of another, it is regarded as though paid to himself. 3 If you pay to my creditor that which you owe to me, you will be discharged by me, and I also by you. Most hold that my creditor is discharged if he has by mistake paid my steward who has been manumitted; whilst otherwise by strict legal principle he could not be discharged from that which he paid to another than him to whom he ought to have made payment. |