an injury; and, when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice.[1]
Promise 1. The goddess of faith (of human and social faith) was worshipped, not only in her temples, but in the lives of the Romans; and, if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burthensome engagements.[2] Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise — was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully laboured to convert simple engagements into the form of solemn stipulations. The prætors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.[3]
- ↑ The Institutes of Caius (l. ii. tit. ix. x. p. 144-214), of Justinian (l. iii. tit. xiv-xxx. l. iv. tit. i-vi.), and of Theophilus (p. 616-837), distinguish four sorts of obligations — aut re, aut verbis, aut literis, aut consensu; but I confess myself partial to my own division [More accurately, obligations are the effect of either (1) contract or (2) delict, and there are four forms of contract — aut re, &c. The author's attempt to improve the division is not successful.]
- ↑ How much is the cool, rational evidence of Polybius (l. vi. p. 693, [c. 56] l. xxxi. p. 1459, 1460 [xxxii. 12]) superior to vague, indiscriminate applause — omnium maxime et præcipue fidem coluit (A. Gellius, xx. 1).
- ↑ The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Opp. tom. i. p. 483-564). And I will here observe
