BOOK III. Pt. I. Ch. 11. a Cf. ibid. extract above. a amitto, nam et prior debitor liberatur et posterior si id quod tu mihi debeas, a peregrino, cum quo sponsus communio non est, SPONDES verbo stipulatus sim.' For extinction of the subsisting by the new obligation, animus novandi' is requisite, and besides, by the latest Law, declaration of the intention of novation; otherwise both obligations continue collateral to one another (accessory stipulation). Ulp. Omnes res transire in novationem possunt; quodcumque enim sive verbis contractum est sive non verbis, novari potest et transire in verborum obligationem ex quacumque obligatione: dummodo sciamus novationem ita demum fieri, si hoc agatur, ut novetur obligatio; ceterum si 1 The original obligation is extinguished by being transferred into the later one, to such an extent that sometimes, although the later stipulation is invalid, yet the original one is extinguished by virtue of the novation; for instance, if I shall have taken a stipulation from Tit. for payment by him after his death of what you owe me, or from a woman or a ward without the guardian's sanction, in this case I lose the thing; for the earlier debtor is discharged, and the later obligation is void. The rule is not the same if I have taken the stipulation from a slave; for then the (earlier debtor) remains bound, just as if I had not afterwards taken a stipulation from any one. § Serv. Sulp., however, gave an opinion that if a person took a stipulation from a slave for that which Luc. Tit. owed (the former), a novation was produced and the thing was lost, proceedings being impossible against a slave. But we observe a different rule; for a novation is no more effected . . . than it would be if I stipulated by means of the word spondes? with a foreigner, with whom there is no dealing by suretyship. non hoc agatur, duae erunt obligationes. Quod ego debeo si alius promittat, liberare me Inst. iii. 29, § 3a: Sed cum hoc quidem inter veteres constabat tunc fieri novationem, cum novandi animo in secundam obligationem itum fuerat, per hoc autem dubium erat, quando novandi animo videretur hoc fieri et quasdam de hoc praesumptiones alii in aliis casibus introducebant: ideo nostra processit constitutio, quae apertissime definivit tunc solum fieri novationem, quotiens hoc ipsum inter contrahentes expressum fuerit, quod propter novationem prioris obligationis convenerunt; alioquin manere et pristinam obligationem et secundam ei accedere, ut maneat ex utraque causa obligatio.as 1 All matters can pass into a novation. For whatever has been contracted, whether by words or not by words, can be novated, and pass from any obligation into a verbal one. Only we must know that a novation is alone produced if it be intended that the obligation should be novated; but if that be not the intention, there will be two obligations. 2 For if another promises that which I owe, he can release me, if this is done in view of novation; if, however, it has not occurred for the purpose of novation, both indeed are liable; but if payment be made by one, the other is discharged. But since it was in fact settled amongst the old jurists that a novation took place when the second obligation has been entered into with the purpose of effecting a novation, but it was thereby doubtful when this act should be held to have operated with the purpose to novate, and different presumptions were set up by different persons to suit various cases, our constitution has therefore been published, which has expressly provided that novation shall alone be produced when this particular statement shall be made by the contracting parties, that their agreement was in view of the novation of the former obligation; otherwise the earlier obligation remains in force, and the second BOOK III. Pt. I. Ch. 1. a Cf. Brown, 8. V. BOOK III. Pt. 1. Ch. II. The substituted obligation can always relate only to the object of the earlier obligation (idem debitum), but, as regards modification in the terms of performance, can be distinguished from it in many ways (e.g., as to dies, condicio, locus, payment of interest, conventional penalty, mode of payment, and the like). Gai. iii. § 177: Si eadem persona sit, a qua postea stipuler, ita demum novatio fit, si quid in posteriore stipulatione novi sit, forte si condicio vel dies vel sponsor adiiciatur aut detrahatur.' Ulp. Legata vel fideicommissa si in stipulationem fuerint deducta et hoc actum ut novetur, fiet novatio; si quidem pure vel in diem fuerint relicta, statim; si vero sub condicione, non statim, sed ubi condicio exstiterit: nam et alias qui in diem stipulatur, statim novat; . . . at qui sub condicione stipulatur, non novat, nisi condicio exstiterit.-1. 8, § 1, D. h. t.2 Gai. iii. § 179: Quod autem diximus, si condicio adiiciatur, novationem fieri, sic intelligi oportet, . . . si condicio exstiterit; alioquin si defecerit, durat prior obligatio: sed videamus num is qui eo nomine agat, doli mali aut pacti conventi exceptione possit summoveri, quia videtur inter eos id actum, ut ita ea res peteretur si posterioris stipulationis exstiterit condicio. is added to it, so that an obligation remains which is grounded upon both transactions. 1 If it be the same person from whom I afterwards take a stipulation, there is a novation only when there is something new in the later stipulation, as when a condition, or a date, or a surety is added or omitted. 2 If legacies or bequests in trust have been brought into a stipulation, and this has been done with intent to novate, a novation will be produced: if in fact they have been left unconditionally, or for a term, then at once; but if under a condition, not at once, but when the condition shall come to pass. For even otherwise does he novate at once who stipulates for a term; . . . but he that stipulates conditionally does not novate, save as the condition shall take effect. Servius tamen Sulpicius existimavit statim et BOOK III. 1 a Compare extract above The effect of novation consists in the substantial (ibid.). destruction, resulting ipso iure, of the previous obligation, together with what has been superadded to it. Paul. Novatione legitime facta liberantur hypothecae et pignus, usurae non currunt.1. 18, D. h. t.2 : A kind of quasi-novation (novatio necessaria) is involved in 'Litis Contestatio' and Judgment." Gai. iii. 180, sq.; D. 15, 1, 3. Ulp. Fit autem delegatio vel per stipulationem, 11; 42, 1, 6. 3; vel per litis contestationem.-1. II, § I eod. $143. INVOLUNTARY GROUNDS OF EXTINCTION. To the reasons that destroy an obligation without co-operation of the persons interested belong (1) lapse of one of the subjects: (a) by the death of the debtor or creditor in actions not hereditary;" (B) by capitis diminutio of the debtor ;d Vat. fgm. 263. (y) by confusio, that is, merger of claim and debt in the same person, consequent upon inheritance. §§ 97, 103. 1 But our having said that, if a condition is added, a novation is operated, must be thus understood . . . if the condition come to pass otherwise, if it should fail, the original obligation still subsists. But let us see whether he who sues on that account can be met by a plea of fraud or covenant; because it seems to have been agreed that the thing should only be claimed upon fulfilment of the condition of the subsequent obligation. Serv. Sulp., however, considered that novation comes about at once and while the condition is pending; and if the condition have failed, no proceedings can be taken on either ground, and in that way the thing is lost. 2 If a novation have happened conformably to law, hypothecs and pledge are released, and interest does not run. 3 Now delegation comes about either by stipulation or by joinder of issue. с BOOK III. Pt. I. Ch. 11. a §§ 108, 89., 117; Inst. iii. 23, 3. Pap. Aditio hereditatis nonnumquam iure confundit obligationem, veluti si creditor debitoris, vel contra debitor creditoris adierit hereditatem.— D. 46, 3, 95, 2.1 (2) The natural or juristic destruction of the object of debt (impossibility of performance), which supposes that neither has the debtor to bear the periculum, nor that responsibility for culpa or mora exists on his part. Hence it is said: 'Species perit ei cui debetur; genus perire non censetur.' a Pomp. Si Stichus certo die dari promissus ante diem moriatur, non tenetur promissor.D. 45, 1, 33.2 Paul. Cum quis rem profanam aut Stichum dari promisit, liberatur, si sine facto eius res sacra esse coeperit aut Stichus ad libertatem pervenerit, nec revocantur in obligationem, si rursus lege aliqua et res sacra profana esse coeperit et Stichus ex libero servus effectus est.1. 83, § 5 eod." $144. SECONDLY, OF TRANSFER OF CLAIMS. Since the obligation is a legal relation between persons marked out individually, a Singular Succession can neither attach to the rights of the creditor nor to 1 Entry upon an inheritance sometimes by law extinguishes an obligation by merger; for example, if the creditor shall have entered upon his debtor's inheritance, or conversely, the debtor upon his creditor's. 2 If the delivery of Stichus have been promised for a fixed day, but he dies before the day, the promisor is not liable. 3 When a person has promised to give a profane thing or (the slave) Stichus, he is released if by no act of his the thing has become sacred, or Stichus has attained to freedom; and they cannot be claimed back for the obligation if again by some law the profane thing shall become sacred, and Stichus from being a freeman has become a slave. |