BOOK III. Pt. 1. 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 a Cf. D. 50, 16, (actio) of the creditor." 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.2 § 139. SOLUTIO. Every obligation has for its object the solutio eius quod debetur' (discharge, performance, payment). 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 (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. I. Ch. II. FOOK III. Pt. 1. Ch. II. a Just. iii. 19, 4. b 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. 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.' 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. 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. ignorante, liberat eum.-D. 3, 5, 39. Cf. Inst. (3) Payment and corresponding acceptance thereof presuppose capacity for alienation." Pupillum sine tutoris auctoritate nec solvere posse palam est.-Pupillo solvi sine tutoris auctoritate non potest; . . si tamen solverit ei debitor et nummi salvi sint, petentem pupillum doli mali exceptione debitor summovebit.—l. 14, § 8 (Ulp.), l. 15 (Paul.), h. t.2 (4) Delegatio in effect is fully equivalent to payment. It is the stipulation concluded by assignation (iussus) of the debtor (delegans), between the creditor (delegatarius) and a third party (delegatus)—and indifferently whether 'debitor debitoris ' or not-for the object of debt, especially a sum owing. BOOK III. Pt. I. Ch. II. a Gai. ii. 84. Cf. § 142, ad init.; D. 39, 5. Ulp.: Solvit et qui reum delegat.-D. 16, 1, 21, 1. 8, 3.3 Iul. Qui debitorem suum delegat, pecuniam. dare intelligitur, quanta ei debetur.-D. 46, 1, 18.4 Paul. licet is solvendo non fuerit: quia bonum nomen facit creditor, qui admittit debitorem delegatum.-D. 17, 1, 26, 2.5 Certain debtors have assured to them the legal 1 Everybody by payment for another, although without his consent and knowledge, procures his discharge. It is manifest that a ward cannot make a payment without his guardian's sanction.-A payment cannot be made to a ward without the sanction of his guardian; . . . if, however, a debtor has paid him, and the money is untouched, the debtor will defeat the ward, if he sue, with the plea of bad intention. He too makes payment who delegates a debtor. If a man delegate his debtor, it is treated as though he pays as much money as is owing to him. —although the debtor shall not have been solvent; because the creditor that accepts a delegated debtor treats the debt as a good one. a benefit, that they need to pay, not the whole amount of the debt, but only id quod facere possunt,' i.e., just so much as they can pay for the time being: beneficium competentiae.' This, according to a later legal opinion, was without deprivation of the means. of subsistence. Paul. In condemnatione personarum, quae in id quod facere possunt damnantur, non totum quod habent extorquendum est, sed et ipsarum ratio habenda est, ne egeant.-D. 50, 17, 173. Ulp. Sunt, qui in id quod facere possunt conveniuntur, id est non deducto aere alieno; et quidem sunt hi fere: qui pro socio conveniuntur; item parens, patronus patrona liberique eorum et parentes; item maritus de dote in id quod facere potest convenitur.-D. 42, 1, 16, 17.a Paul. Is quoque, qui ex causa donationis convenitur, in quantum facere potest condemnatur: et quidem is solus deducto aere alieno.-1. 19, § eod. § 140. COMPENSATIO. 'Compensatio' (set-off) is the mutual extinction of the creditor's claim and of the debtor's counter-claim upon the creditor-the subject of both claims being quantities of the same kind-so far as they cover one another in amount. In the condemnation of persons who are condemned for that which they are able to pay, not all that they have is to be taken away, but consideration must be paid also to themselves, that they be not in want. 2 Some persons are sued for that which they can render, that is, without deduction of debts. And indeed they are in general the following: those sued pro socio; a parent likewise, a patron, and patroness, and their children, and ancestors; a husband, again, is sued as to dos, for that which he can render. 3 He too that is sued upon a donation is condemned for as much as he can render, and indeed such person alone after deduction of debts. |