2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real.[1] A grateful return is due to the author of a benefit; and whoever is entrusted with the property of another has bound himself to the sacred duty of restitution. In the case of a friendly loan the merit of generosity is on the side of the lender only, in a deposit on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same specific value, according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labour or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner, with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial
- ↑ The nice and various subject of contracts by consent is spread over four books (xvii-xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student. [The difference between contracts re and consensu is not clearly enough brought out. (a) Mutuum and (b) commodatum, deposit and pledge are contracts re; while sales, locations, partnerships and commissions are contracts consensu.]
that the universities of Holland and Brandenburgh, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles. [The prætorian legislation on pacts seems to have guaranteed merely pacts which tended to extinguish obligations (de non petendo), and not those which created obligations. It was thus an extension of certain exceptions which the Law of the Twelve Tables had already admitted to the doctrine that a nude pact creates no obligation. The most important of those exceptions was that which allowed a pact to extinguish an action furti or injuriarum. Accarias, 2, p. 393-5.]
