Contracts were made consensu, by the mere agreement of the contracting parties. Al though such agreement might be proved by a written instrument, as well as in other ways, yet the writing was only evidence of the con tract, not the contract itself. This species of consensual contracts are emptio et venditio, or sale, locatio et conductio, or hiring, emphyteusis, or conveyance of land reserving a rent, so cietas, or partnership and mandatum, or agency. See these words.
6. Obligationes quasi ex contractu. In the Roman law, persons who had not in fact entered into a contract were sometimes treated as if they had done so. Their legal position in such cases had considerable reseinblance to that of the parties to a contract, and is called an obligati° quasi ex contractu. Such an obliga tion was engendered in the cases of nego tiorum gestic), or unauthorized agency, of com munio incidens, a sort of tenancy in common not originating in a contract, of solutio in debiti, or the payment of money to one not entitled to it, of the tutela and cura, re sembling the relation of guardian and ward, of the additio hereditatis and agnitio bonorum possessionis, or the acceptance of an heirship, and many others. Some include in this class the constitutio dotis, settlement of a dower. Ortolan, Inst. a 1522-1632 ; Mackeldey, a 457 -468.
7. Obligationes ex malefoio or ex delicto. The terms maleficium , delictum, ein braced most of the injuries which the common law de nominates torts, as well as others which are now considered crimes. This cla,ss includes
furtum, theft, rapina, robhery, damnum, or injury to property, whether direct or conse quential, and injuria, or injury to the person or reputation. The definitions here given of damnum and injuria are not strictly accurate, hut will serve to convey an idea of the dis tinction between them. All such acts, from the instant of their coinmission, rendered the perpetrator liable for damages to the party rnjured, and were, therefore, considered to ori ginate obligati°. Inst. 4. 1-4 ; Ortolan, Inst. a 1715-1780.
Obligationes ,quasi ex delicto. This class embraces an torts not coming under the de nomination of delicta and not having a special form of action provided for them by law. They differed widely in character, and at common law would in some cases giVe rise t,f, an action on the case, in others to arr action on an implied contract. Ortolan, Just a 1781 1792.
Obligationes ex variis causarum figuris. Although Justinian confined the divisions of obligations to the four classes which have been enumerated, there are many species of obligations which cannot properly be reduced within any of these classes. Some authori ties have, consequently, established a fifth class, to receive the odds and ends which belonged nowhere else, and have given to this class the above designation, borrowed from Gains, 1. 1, pr. 1 D. 44, 7. See Mac keldey, a 474-482.