An obligation can be the liability of the debtor. (1) Through Novation, that is, by delegatio of the debtor to the new creditor, or expromissio of the debtor by a third party; by which, however, the subsisting obligation is not transferred: it is rather extinguished, and its place taken by a new obligation, though of like content. a BOOK III. Pt. 1. Ch. 11. tionem, manci Gai. ii. § 38: Obligationes quoquo modo contractae nihil eorum" recipiunt; nam quod mihi ab a Se. tradialiquo debetur, id si velim tibi deberi, nullo pationem, in eorum modo, quibus res corporales ad alium trans- iure cessionem, feruntur, id efficere possum, sed opus est, ut iubente me tu ab eo stipuleris: quae res efficit, ut a me liberetur et incipiat tibi teneri. Quae dicitur novatio obligationis.' (2) Through CESSION, that is, through transfer of the exercise of a claim by the previous creditor conferring powers (mandare, cedere, praestare, actionem) on another, the 'cessionarius,' as his representative (procurator, cognitor)," for the judicial enforcement §§ 197, 200. of the claim in the name of the 'cedens,' but in his own interest and upon his own account (in rem suam), for which the consent of the debtor (debitor cessus) otherwise than in delegatio-is not required. Gai. ii. 39: Sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri. 1 Obligations, in whatever way they are contracted, admit of none of these transfers. For if I wish that what is owed by some one to me should be owed to you, I cannot accomplish it by any of those modes by which corporeal things are transferred to another person, but you must by my direction take a stipu. lation from him: the result of which is, that he is released by me and begins to be liable to you. This is called a novation of the obligation. 2 But without this novation you will be unable to sue in your a BOOK III. Pt. I. Ch. 11. Imp. Alex.: Delegatio debiti, nisi consentiente et stipulatanti promittente debitore, iure perfici non potest nominis autem venditio et ignorante vel invito eo, adversus quem actiones mandantur, contrahi solet.-1. 1, C. de novat. 8, 41 (42).1 The cedens' here at first remains creditor, and can also recall the mandatum agendi; he does not lose the general control of the claim until by litis contestatio § 142, ad fin. of the 'cessionarius' with the debtor; a though by later Law, notice to the debtor of the cessio having taken place (denuntiatio) operated this. On the other hand, the debtor also retains against the 'cessionarius' all pleas that connect themselves with the 'cedens ' personally. Mac. Meminisse oportet, quod procurator lite contestata dominus litis efficitur.-D. 49, I, 4, 5.2 Imp. Gord. Si delegatio non est interposita debitoris tui ac propterea actiones apud te remanserunt, quamvis creditori tuo adversus eum solutionis causa mandaveris actiones, tamen antequam lis contestetur vel aliquid ex debito accipiat vel debitori tuo denuntiaverit, exigere a debitore tuo debitam quantitatem non vetaris et eo modo tui creditoris exactionem contra eum inhibere.-1. 3, C. de novat.3 own name, but you must take proceedings in my name in the character of my cognitor or procurator. 1 The assignment of a debt can be legally perfected alone by consent, and by a promise given to the stipulating creditor by the debtor. But the sale of a claim is, as a rule, contracted without the knowledge, or against the will, of him against whom the actions are transferred. 2 It must be borne in mind that upon joinder of issue the procurator becomes master of the suit. 3 If an assignment of your debtor has not taken place and, accordingly, the actions have continued at your command, although you have transferred to your creditor the actions against such debtor in lieu of payment, nevertheless, before joinder of issue, or the acceptance by him of any part of the The 'cedens' is answerable to the 'cessionarius' as a rule only for the existence (verum nomen) of the claim, not for its admitting of realisation, or for the solvency of the debtor (bonum nomen). Ulp. Si nomen sit distractum, Celsus scribit, locupletem esse debitorem non debere praestare, debitorem autem esse praestare: nisi aliud convenit.-D. 18, 4, 4.' Already in the later classical, and further in the yet later Law, the express conferment of a special mandatum agendi was not always requisite for the cessio to take effect; because in some transactions, which doubtless involved the intention of cessio, as for instance, in an emtio nominis' or sale of an obligatory claim, the defective mandatum agendi-or even that recalled or otherwise extinguished-was gradually replaced by the grant of utiles actiones, whereby the cessionarius altogether, in relation to the cedens, acquired a more assured and more independent position. Moreover, in certain cases, where a legal liability was existing for the assignment of the claim," the a Cf. § 112. cessio itself was regarded as effected without, indeed against, the will of the previous creditor; and the action belonging to him was, as utilis actio, conferred upon the party entitled (cessio legis). Imp. Valer. Nominibus in dotem datis, quamvis nec delegatio praecesserit nec litiscontestatio subsecuta fuerit, utilem tamen marito actionem ad similitudinem eius, qui nomen emerit, dari oportere saepe rescriptum est.-C. 4, 10, 2.62 claim, or notice given by him to your debtor, you are not pre. vented from claiming the amount owing from your debtor, and in this way hindering a claim being made upon him by your creditor. 1 If a debt has been sold, Cels. writes, that (the vendor) has not to answer for the solvency of the debtor, but he has to answer for his being debtor, unless it is otherwise agreed. 2 If claims to dowry have been made over, it has often been laid down in rescripts that, although neither an assignment have preceded nor joinder of issue followed, an equitable action a Cf. Pollock, 'Coat.' p. 207. BOOK III. Pt. 1. Ch. IT. a Ibid. C. 4, 35, 22 (a. 506). e Cf. Gai. i. 157. Ulp. x'. 8. Imp. Diocl.: In solutum nomine dato non aliter nisi mandatis actionibus ex persona sui debitoris adversus eius debitores creditor experiri potest; suo autem nomine utili actione recte utetur.-C. 4, 15, 1. ult.a1 : Id. Ex legato nominis, actionibus ab his qui successerunt non mandatis, directas quidem actiones legatarius habere non potest, utilibus autem suo nomine experietur.-C. 6, 37, 18.2 Ulp. Si procurator vendiderit, . . . dicendum est, utilem ex empto actionem domino competere.-D. 19, 1, 13, 25.3 A peculiar limitation of cessio is contained by the lex Anastasiana, according to which the purchaser of a claim shall be allowed to exact from the debtor no more than he himself purchased. § 145. THIRDLY, OF INTERCESSION. SENATUSCONSULTUM VELLEIANUM. с A SC. Velleianum under Claudius enacted that, having regard to their inexperience of law and ignorance of business, as well as to 'sexus imbecillitas,' the INTERCESSION of women was invalid. Paul. Velleiano senatusconsulto plenissime comprehensum est, ne pro ullo feminae intercederent.-1. I pr., D. h. t. (ad SC. Vell. 16, 1).* must be given to the husband after the analogy of the purchaser of a claim. 1 If a claim has been made over in lieu of payment, the credi tor can take proceedings alone by actions transferred to him in the name of his debtor against the latter's debtors, but he may lawfully avail himself of an equitable action in his own name. 2 A legatee can in fact have no direct actions upon the bequest of a debt if the actions have not been transferred to him by the heirs; but he may sue by equitable actions in his own nanie. ... 3 If an agent has sold . . we must say that an equitable action upon the purchase lies for the principal. 4 By the SCtum Velleianum most complete provision has been Ulp. Et primo quidem temporibus D. Augusti, mox deinde Claudii edictis eorum erat interdictum, ne feminae pro viris suis intercederent. § Postea factum est senatusconsultum, quo plenissime feminis omnibus subventum est; cuius senatusconsulti verba haec sunt: 'Quod Marcus Silanus et Velleus Tutor consules verba fecerunt de obligationibus feminarum, quae pro aliis reae fierent, quid de ea re fieri oportet, de ea re ita censuere : quod ad fideiussiones et mutui dationes pro aliis, quibus intercesserint feminae, pertinet, tametsi ante videtur ita ius dictum esse, ne eo nomine ab his petitio sit neve in eas actio detur, cum eas virilibus officiis fungi et eius generis obligationibus obstringi non sit aequum, arbitrari senatum, recte atque ordine facturos ad quos de ea re in iure aditum erit, si dederint operam, ut in ea re senatus voluntas servetur.'-l. 2 pr., § 1 eod.1 BOOK III. Pt. 1. Ch. II. made that women should not make themselves sureties for any one. 1 And first indeed in the times of the late Emperor Augustus, and soon afterwards of Claudius, by their edicts women were forbidden to become sureties for their husbands. § Afterwards a Sctum was passed by which, in the most complete way, relief was given to all women. The following are the words of this edict: Whereas Marc. Sil. and Vell. Tut., the consuls, have delivered a discourse upon the obligations of women, who should undertake the debts of others, as to what should be done concerning such matter, the conclusion come to thereon was this: As regards guaranties and debts incurred for others, for whom women shall become sureties, although previously the law seems to have been laid down, that there should be no claim against them in this behalf, and no action should be given against them, it not being fair that they should perform men's functions and be involved in obligations, the Senate is of opinion that the tribunal which shall give audience concerning such matter will act rightly and in order if they shall be at pains to uphold its intention as to such matter.' |