in emptionibus venditionibus, locationibus con- I. OBLIGATIONES EX CONTRACTU.« THE SYSTEM OF CONTRACTS IURE CIVILI. § 116. FIRST, NEXUM с 'Nexum' in the wider sense is every legal transaction per aes et libram'; in the narrower sense, § 79. such as relates to the creation of a pecuniary claim. It was the oldest loan, the antique national moneytransaction, and was entered into by the weighing of Roman money in balances, in the form of 'mancipatio,' accomplished by a solemn harangue, which enunciated the purpose of such weighing. The form employed was perhaps as follows: Quod ego tibi mille asses (s. libras aeris) hoc aere aeneaque libra nexos dedi, eos tu mihi post annum cum foenore unciario dare damnas 1 Obligations arise from consent in buying and selling, letting and hiring, partnerships and mandates. We therefore say that in these forms obligations are created by consent, because there is no speciality either of words or writing required [and it is not even necessary that anything should be given, for the obligation to acquire binding force], but it is enough that those who are contracting the business have come to a common understanding. Likewise, in these contracts, the one is bound to the other for all that the one ought in fairness and equity to do for the other, whereas in verbal obligations, one party stipulates and the other promises. BOOK III. Pt. 1. Ch. II. nexum could also occur as a symbolic or fictitious loan, a So Huschke. after that the practice of weighing the money was b Thus at the same time a Real and a Formal contract. entirely discontinued, and also the money-payment separated from the legal act itself; and in this shape, -being an abstract form of obligation-it was applicable to most of the obligatory agreements for the formal creation and change of pecuniary claims arising therefrom. Moreover, a 'nexi obligatio' arose in purchase per mancipationem in respect of the purchasemoney to be repaid by the vendor upon eviction of the • D. 21, 2, 53, 1. thing, and in a legacy by damnatio.d d Ulp. 24, 4, 8. Fest. h. v. Nexum est, ut ait Gallus Aelius, quodcumque per aes et libram geritur; idque necti dicitur; quo in genere sunt haec: testamenti factio, nexi datio, nexi liberatio. Nexum aes apud antiquos dicebatur pecunia, quae per nexum obligatur (p. 165, M.).1 Varro de LI. VII. § 105 (Müll.): Nexum Manilius scribit, omne quod per aes et libram geritur, in quo sint mancipia. Mucius, quae per aes et libram fiant ut obligentur, praeter quae mancipio dentur.2 The significance of the nexum lay in the notoriety of the sanctiori, and in the strict, public nature of the obligation entered into. After the lapse of the term for payment, the claims could be at once realised; the debtor was situated exactly like the iudicatus' or 'in iure confessus'; he him 1 A nexum, as says G. A., is any transaction by copper and balance, and that is said to be bound; in which category are the following the making of a testament, the giving of a bond, discharge from a bond. Property made liable per nexum was spoken of amongst the ancients as nexum aes. Man. by nexum describes every transaction by copper and scales, amongst which are mancipia. Muc.: whatever comes about by copper and scales, so as to be binding, besides things granted by mancipium. BOOK III. Pt. I. Ch. II. the person self became nexus' and was subject, as they, to themanus iniectio,' to being led away into slavery for debt, and besides to sale by the creditor." How- a For the vinder ever, after this right of private incarceration by the poena dupli of creditor was curtailed by some lex that is uncertain, guilty of falsehood, see § 192. but perhaps the 1. Valeria, and was abolished by a lex Poetelia (variously put at 440 and 429 A.U.C.), the nexum also passed out of use, and very soon disappeared. Varro 1. c. Liber qui suas operas in servitutem pro pecunia, quam debebat, dat, dum solveret, nexus vocatur, ut ab aere obaeratus.' Liv. VIII. § 28: Eo anno plebei Romanae velut aliud initium libertatis factum est, quod necti desierunt.-Victum eo die . . . ingens vinculum diei; iussique consules ferre ad populum, ne quis, nisi qui noxam meruisset donec poenam lueret, in compedibus aut in nervo teneretur; pecuniae creditae bona debitoris, non corpus obnoxium esset: ita nexi soluti cautumque in posterum, ne necterentur." 2 SECONDLY, VERBORUM OBLIGATIONES. § 117. IN GENERAL. STIPULATIO AND DOTIS DICTIO. The most important and most frequent case of ' verborum obligationes' in Roman legal dealings is the Stipulatio." 1 A freeman that gives his labour for slavery, in consideration of the money he owed, until he should discharge the debt, is called nexus, as enslaved for debt. 2 In that year another beginning, so to speak, of liberty was made for the Roman Plebs., for they ceased to be bound.-A great bond of credit was gained on that day; and the consuls were ordered to propose to the people that no one should be detained in stocks or in fetters, save him that had deserved punishment, until he had satisfied the penalty; that the goods of a debtor, not his body, should be liable for money owing: thus nexi were released, and it was provided for the future that they should not be bound. See Anct. Law,' pp. 326 330. It is an obligatory agreement clothed in an oral interrogatory of the creditor (stipulator s. reus stipulundi―stipulari) and corresponding answer of the debtor (promissor s. reus promittendi) engendering a unilateral, stringent claim," which probably was derived from the old promissory oath-sponsio ad aram (maximam)-and so is of sacral origin. Fest. h. v. Stipem esse nummum signatum, testimonio est et id quod datur stipendium militi, et cum spondetur pecunia, quod stipulari dicitur (p. 297, M.)1 Id. h. v. Spondere Verrius putat dictum, quod sporte sua, i.e. voluntate promittatur; deinde oblitus inferiore capite sponsum et sponsam ex Graeco dictum ait, quod ii oоvdaç interpositis rebus divinis faciant.-P. 329, M.2 (Stipulatio) hoc nomine inde utitur, quia stipulum apud veteres firmum appellatur, forte a stipite descendens. pr., I. h. t. (de V. O. 3, 15). Pomp. Stipulatio autem est verborum conceptio, quibus is qui interrogatur, daturum facturumve se, quod interrogatus est, responderit.1. 5, § 1, D. h. t. (de V. O. 45, 1).' : Ulp. Stipulatio non potest confici nisi utroque loquente; et ideo neque mutus neque surdus neque infans stipulationem contrahere possunt, 1 That a stips is a stamped coin is evidenced also by that payment which is made to a soldier, and when money is promised, which is called stipulari. "V. supposes that the expression spondeo is used because the promise is made sua sponte, i.e., voluntarily; then, forgetfully, he speaks in a later chapter of the expression sponsus and sponsa being taken from Greek, because they make oлovdai (treaties) through the medium of religious matters. It has this name of stipulation, because stipulum among the ancients means something firm, and is perhaps derived from stipes (trunk of a tree). Now stipulatio is a framing of words by which he who is interrogated answers that he will give or do that which has been asked. nec absens quidem, quoniam exaudire invicem Having grown out of national Roman custom, and having been at first connected with prescribed formulae, the stipulatio, in course of time, acquired an evermore elastic form, inasmuch as it also made its way into dealings with the peregrini; and finally, a congruity between question and answer, which was no longer formal but merely substantial, was held sufficient. Gai. iii. §§ 92-93: Verbis obligatio fit ex interrogatione et responsione: velut DARI SPONDES ? SPONDEO ;-DABIS? DABO ;-PROMITTIS? PROMITTO; -FACIES? FACIAM. § Sed haec quidem verborum obligatio DARI SPONDES? SPONDEO propria civium Romanorum est; ceterae vero iuris gentium sunt, itaque inter omnes homines, sive cives Romanos sive peregrinos, valent. Adhuc inutilis est stipulatio, si quis ad id quod interrogatus erit non responderit, veluti si sestertia x a te dari stipuler, et tu sestertia v promittas. (Ibid. § 102.)—Ulp. : Si stipulanti mihi x tu xx respondeas, non contractam stipulationem nisi in x constat; ex contrario si me xx interrogante tu x respondeas, obligatio nisi in x non erit contracta. -(l. 1, § 4, h. t.)3 1 A stipulation cannot be effected unless both persons speak; and so neither a dumb nor a deaf person, nor an infant, can contract a stipulation, not even an absent person, since they must hear one another. 2 A verbal obligation results from a question and answer: as for instance, 'Do you undertake that it shall be given ?' 'I do undertake.' 'Will you give?' 'I will give.' 'Do you promise?' 'I do promise.' Will you do ?' 'I will do.' § But this form of verbal obligation, 'Do you undertake that it shall be given?' 'I do undertake,' is peculiar to Roman citizens; whilst the other forms belong to the ius gentium, and so are valid amongst all men, whether Roman citizens or aliens. 3 Moreover, a stipulation is void if a man do not reply to the question he is asked; for example, if I stipulate for ten thousand sesterces to be given by you, and you promise five thousand BOOK III. Pt. 1. Ch. II. |