Contracts entered into literis were obso lete in the reign of Justinian. In the earlier days of Roman jurisprudence, every citizen kept a private acconnt-book. If a creditor, at the request of his debtor, entered in such book his charge against his debtor, such en try, in pursuance of the request, constituted not merely evidence of a contract, but the contract itself. This was the contract form ed literis, in writing. The debtor, on his part, might also make a corresponding entry of the transaction in his own book. This was in fact; expected of him, and was gen erally done; but it seems not to have been necessary to the validity of the contract. The entry was made' in the form of a ficti tious payment ; it was allowable only in pecuniary transactions; It must be simple and unconditional, and could not be made to take effect at a future day. The charge might be made against the original debtor, a re in personam, or adainst a third person who agreed to take his place, a persona in personam. This species of literal contract was called nomina, nomina transcriptitia or acceptilatio et expensilatio. Ortolan, Inst. § 1414. This species of contract seems never to have been of great importance; they had disappeared entirely before the time of Jus tinian; Hadley, Rom. Law 216.
There were two other literal contracts known to the early jurisprudence, called syngraphia and chirographia; but these even in the times of gains had become so nearly obsolete, that very little is known about them. All these, it must be borne in mind, were contracts themselves, not merely evi= dences of a contract; and this distinguishes them from the instruments of writing in use during, the latter ages of the civil law. Orto lan, Inst. § 1414; Mackeldey § 422.
Contracts were made consensu, by the mere agreement of the contracting parties. Although such agreement might be proved by a written instrument, as well as in other ways, yet the writing was only evidence of the contract, 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, societas, or partnership, and mandatum, or agency. See these words; HIRE.
Obligationes quasi ex contracts& 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 re semblance to that of the parties to a con tract, and is called an obligatio quasi contrdctu. Such an obligation was engen dered in the cases of negotiorum gestic), or unauthorized agency, of communio incidens, a sort of tenancy in common not originating in a contract, of solutio indebiti, or the pay ment of money to one not entitled to it, of the tutela and cura, resembling the relation of guardian and ward, of the additio hered itatis and agnitio bonorum possessionis, or the acceptance of an heirship, and many oth ers. Some include in this Class the consti tutio dotis, settlement of a dower. Ortolan, Inst. § 1522; Mackeldey § 457.
Obligationes ex maleficio or ex delicto. The terms malellcium, delictum, embraced most of the injuries which the common law denominates torts, as well as others which are now considered crimes. This class in cludes furtum, theft, rapine, robbery, dcvm num, or injury to property, whether direct or consequential, and injuria, or injury to the person or reputation. The definitions here given of damnum and injuria are not strict ly accurate, but will serve to convey an idea of the distinction between them. All such acts, from the instant of their commission, rendered the perpetrator liable for damages to the party injured, and were, therefore, considered to originate an obligatio. Inst. 4. 1; Ortolan, Inst. § 1715.
Obligationes quasi ex delicto. This class embraces all torts not coming under the denomination 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 to an action on the case, in others to an action on an implied contract. Or tolan, Inst. § 1781.
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,• I. 1, pr. § 1, D. 44, 7. See Mac keldey § 474. See, generally, Hadley, Rom. Law 209, etc.