The Law of Obligations.—In his Liber Aureorum Gaius says obligations arise from either contract or delict, or miscellaneous causes (variae causarum figurae). But those arising from contract fill a place in the later jurisprudence vastly greater than those arising from delict. In the XII. Tables it was different. In them delicts were much more Law of obligations. prominent than contracts—wrongs entitling the sufferer to demand the imposition of penalties upon the wrong-doer that in most cases covered both reparation and punishment. The disproportion in the formulated provisions in reference to the two sources of obligation, however, is not surprising. For, first of all, the purpose of the decemviral code was to remove uncertainties and leave as little as possible to the arbitrariness of the magistrates. In nothing was there more scope for this than in the imposition of penalties; and, as different offences required to be differently treated, the provisions in reference to them were necessarily multiplied. In the next place, the intercourse that evokes contract was as yet very limited. Agriculture was the occupation of the great majority; of trade and commerce there was little; coined money had hardly begun to be used as a circulating medium. Lastly, the safeguards of engagement then lay to a great extent in the sworn oath or the plighted faith, of which the law (jus) hardly yet took cognisance, but which found a protection quite as potent in the religious and moral sentiments that had so firm a hold on the people.
It may be asked—If a man purchased sheep or store cattle, a plough, a toga, a jar of wine or oil, had he no action to compel delivery, the vendor no action for payment of the price? Did the hire of a horse or the loan of a bullock create no obligation? Was partnership unknown, and deposit, Contract in general. and pledge, and surety ship in any other form than that of vadimonium? One can have no hesitation in answering that, as transactions of daily life, they must all have been more or less familiar. It does not follow, however, that they were already regulated by law and protected by the ordinary tribunals. Modern historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commodatum), deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet barely recognized by law. The law recognized conveyance but hardly contract. Sale was the offspring of barter—of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side. The substitution of coined money for the raw metal can hardly have effected any radical change: the ordinary practice of those early times must still have been ready-money transaction—an instant exchange of ware for price; and it can only have been when, for some reason or other, the arrangement was exceptionally for delivery or payment at a future date, say next market day, that obligation was held to have been created. Was that obligation enforceable by the civil tribunals?
Some jurists hold that it was—that at no time were the jus gentium contracts outside the protection of judicial remedies, although by a simpler procedure than that resorted to for enforcement of the contracts of the jus civile. But two provisions in the XII. Tables seem to prove that it was not so enforceable when they were drawn up. The first is that already referred to as recorded by Justinian—that, where a thing was sold and delivered, the property, nevertheless, was not to pass until the price had been paid or sureties (vades) for it accepted by the vendor. Far from being a recognition of the obligatory nature of the transaction, this provision is really a recognition of the inability of the law to enforce payment of the price by the vendee; it is a declaration that, on the latter’s failure to pay, the vendor, unprotected by any personal action, should be entitled to get back the thing sold as still his own, no matter in whose hands he found it. The second related to the case of a person who had bought a victim for sacrifice, but had failed to pay for it. A real action for its revindication by the seller after it had been consumed on the altar was out of the question; so he was authorized by the Tables, by the process of pignoris capio, at his own hand to appropriate in satisfaction a sufficient equivalent out of the belongings of the purchaser, against whom he had no personal action.
It was a principle of the law of Rome through the whole of its history, though in course of time subject to an increasing number of exceptions, that mere agreement between two persons did not give him in whose favour it was conceived a right to demand its enforcement. To entitle a man to claim the intervention of the civil Requisites of binding contract. tribunals to compel implement of an engagement undertaken by another, it was necessary (subject to those exceptions) either that it should be clothed in some form prescribed or recognized by the law, or that it should be accompanied or followed by some relative act which rendered it something more than a mere interchange of consent. Under the jurisprudence of the XII. Tables the formalities required to elevate an agreement to the rank of contract and make it civilly obligatory sometimes combined ceremonial act and words of style, sometimes did not go beyond words of style, but in all cases took place before witnesses. Dotis dictio, the undertaking of a parent to provide a dowry with his daughter whom he was giving in marriage, and vadimonium, the guarantee of a surety for the due fulfilment of the undertaking either of a party to a contract or a party to a litigation (some think only the latter), probably required nothing more than words of style before persons who could if necessary bear witness to them; whereas an engagement incident to a mancipation, or an undertaking to repay borrowed money, required in addition a ceremony with the copper and the scales. This undertaking to repay arose from the contract of nexum, which was, it is thought, older than the Tables; both it and the verbal contract by sponsio or stipulation, which was younger, require here further consideration.
The Nexal Contract.[1]—The tumults and seditions so frequent in Rome during the first two centuries of the Republic are as frequently attributed by ancient writers to the abuses of the law of debt as to any other cause, social or political. The circumstances of the poorer plebeians were such as to make it almost impossible to Causes of plebeian borrowing. avoid borrowing. Their scanty means were dependent on the regular cultivation of their little acres, and on each operation of the agricultural year being performed in proper rotation and at the proper season. But this was every now and again interfered with by wars which detained them from home at seed-time or harvest, practically rendering their farms unproductive, and leaving them and their families in straits for the commonest necessaries of life.
The practice of lending per libram was doubtless of great antiquity—indeed, the intervention of the scales was a necessity when money or what passed for it had to be weighed instead of counted; and not improbably old custom conceded to a lender who had thus made an advance in the presence of witnesses some very summary and stringent Nexal contract. remedy against a borrower who failed in repayment. How, after the Servian reforms, it was subjected to much the same formalities as were required for mancipation has been shown already. With the introduction of a coinage the transaction, instead of being per libram simply, became one per aes et libram; the scales were touched with a single piece, representing the money which had already been or was about to be paid, a formula recited whereby the obligation of repayment was imposed on the borrower, and an appeal made to the witnesses for their testimony. Unfortunately this formula is nowhere preserved. Huschke assuming that the lender was the only speaker, formulates it thus—“quod ego tibi mille libras hoc aere aeneaque libra nexas dedi, eas tu mihi post annum jure nexi dare damnas esto”—“whereas with this coin and these copper scales I have given thee a thousand asses, be thou therefore bound jure nexi to repay them to me a year hence.” The phrase damnas esto, like the rest of the formula, is unsupported by any conclusive authority;
- ↑ The modern literature on the subject of nexum is very large and the views taken of it are discordant. The fundamental work is that of Huschke, Über d. Recht des Nexum (Leipzig, 1846). Danz (Gesch. d. röm. Rechts, ii. 2nd ed., 1873, § 146) gives a list of the more important writings about it and a résumé of the principal theories. To this list, which comes down to 1870, may be added Bekker, Die Aktionen des röm. Privatrechts, i. (Berlin, 1871), c. 1; Brinz, “Der Begriff obligatio,” in Grünhut’s Zeitschr. i. (1874), 11 seq.; and Voigt, XII. Tafeln, i. §§ 63–65; Girard, Manuel, 4th ed. pp. 476-482; Schlossmann, Nexum (1904); Mitteis, “Über das Nexum,” Ztsch. d. Sav. Stift. xxii. 96 seq., and xxv. 282–283; Mommsen, Ztsch. d. Sav. Stift. xxiii. 348 seq.; Lenel, Z. d. S. S. xxiii. 84 seq.; Bekker, Z. d. S. S. xxiii. 11–23 and 429–430; Kübler, Z. d. S. S. xxv. 254 seq.; Senn. Nouv. Rev. hist. (1905), pp. 49 seq.
