OBLIGATIO. In Roman Law. A legal bond which obliges us to the performance of something in accordance with the law of the land. Ortolan, Inst. 2, § 1179.
It corresponded nearly to our word con tract. Justinian says, "Obligati° est juris vinculum quo necessitate adstringimur cujus solvendce rei, se•undum nostrce jura." Pr. J. 3. 13.
The Romans considered that obligations derived their validity solely from positive law. At first the only ones recognized were those established in special cases in accord ance with the forms prescribed by the strict /us civiUs. In the course of time, however, the praetorian jurisdiction, in mitigation of the primitive rigor of the law, introduced new modes of contracting obligations and provided the means of enforcing them: hence the twofold division made by Justin ian of obligationes civiles and obligationes prectorice. Inst. I. 3. 13. But there was a third daft, the obligationes naturales, which derived their validity from the law of nature and nations, or the natural reason of mankind. These had not the binding force of the other classes, not being capable of enforcement by action, and are, therefore, not noticed by Justinian in his classifica tion; but they had, nevertheless, a certain efficacy even in. the civil law: for instance, though a debt founded upon a natural ob ligation could not be recovered by an action, yet if it was voluntarily paid by the debtor he could not recover it back, as he might do in the case of money paid by mistake, etc., where no natural obligation existed. L. 38, pr. D. 12. 6. And see Ortolan 2, § 1180.
The second classification of obligations made by Justinian has regard to the way in which they arise. They were, in this aspect, either ex contractu or quasi ex con tractu, or ex maleficio or quasi ex maleficio; Inst. 2. 3. 13. These will be discussed sepa rately.
Obligationes ex contractu, those founded upon an express contract, are again sub divided into four classes, with reference to the mode in which they are contracted. The contract might be entered into re, verbis, literis, or conscnsu.
A contract was entered into re by the actual transfer of a thing from one party to the other. Though in such cases the un derstanding of the parties as to the object of the transfer, and the conditions accompany ing it, formed an essential part of the con tract, yet it was only by the actual delivery of the thing that the contract was generated. The only contracts which could be entered into in this way were those known to our law as railments,—a term derived from the French word baffler, to deliver, and evident ly pointing to the same characteristic fea ture in the translation which the Romans indicated by the word re. These were the mutuum, or loan of a thing to be consumed in the using and to be returned in kind, the commodatunt, or gratuitous loan of a thing to be used and returned, the deposituns, or delivery of a thing to be kept in safety for the benefit of the depositor, and the pignus, or delivery of a thing in pledge to a creditor, as security for his debt. See Muruum; Cons
MODATUNI ; DEPOSITUM ; PIGNUS ; Ortolan, Inst. § 1208; Mackeldey, Rom. Becht § 396. Besides the above named contractus reales, a large class of contracts which had no special names, and were thence called contractus innominati, were included under this head, from the fact that they, like the former, gave rise to the actio prmscriptis verbis. Some of these were the contracts of ex change, of mutual compromise, of, doubtful or contested claims (somewhat resembling our accord and satisfaction), of factorship, etc. See Mackeldey § 409.
Contracts were entered Into verbis, by a formal interrogation by one party and re sponse by the other. The interrogation was called stiptdatio, and the party making it, reus stipulandi. The response was called pronvissio, and the respondent, reus promit tendi. The contract itself, consisting of the interrogation and response, was often called stkpulatio. In the time of the earlier jurists, the stipulation could only be entered into by the use of certain formulary words by the parties : as, for instance, Spondes? do you promise? Spondeo, I promise ; Dabis? will you give? Dabo, I will give; Facies? will you do this? Facial, will do it, etc., etc. But by a constitution of the emperor Leo, A. D. 469, the obligation to use these particu lar words was dcaie away, and any words which expressed the meaning of the parties were allowed to create a valid stipulation, and any language understood by the par ties might be used with as much effect as Latin. Such contracts were called verbis, because their validity depended entirely up on the use of the words. The mere agree ment of the parties without using the ques tion and response could not beget a stiptlai tiou ; and, on the other hand, if the question and response had been used, the obligation was created although there might be an ab sence of consent. In this latter case, how ever, equitable relief would be granted by the prutor; Ortolan, Inst. § 1250. Stipula tions, and, indeed, all other forms of con tracts, might be made either pure, i. e. ab solutely, or in diem, i. e. to take effect at a future day, or sub conditione, i. e. condition ally. But some kinds of conditions, such as those physically impossible, were inadmis sible, and invalidated the contract; while others, such as those which were absurd, were themselves invalidated, and the con tract was considered as having been made absolutely. Mackeldey §§ 415-421; Ortolan, Inst. § 1235 ; Inst. 3. 13.