protected by a civilis obligatio or actio, is either res or

consensus.

a. Re contracta obligatio is the title of a contract which was originally concluded by the delivery of a thing, and which the donee bound himself to restore to the donor. And under this particular aspect, this contract embraced the four species of

1. Mutui datio.

2. Commodatum.
3. Depositum.

4. Pignus.

B. Consensu contracta obligatio was the title of a contract which, on the ground of its substance and contents, was actionable, and did not require the aid of any technical or external

causa.

Under this contract were ranged the four species of1. Emtio, venditio.

2. Locatio, conductio.

3. Societas.

4. Mandatum.

DCX. The two remaining kinds of contract relate to the forms of the particular convention; but there is a more (a) general aspect under which this contract of consent must be regarded according to the Roman jurist, it had for its object not only the giving of a thing, but also the doing of an act; and hence arose the famous decision, which has found its way into modern continental jurisprudence, and has been even eulogized by the English Blackstone. (b)

1. Do ut des.

2. Do ut facias.

3. Facio ut des.

4. Facio ut facias. (c)

(a) Savigny, Obl. ii. s. 73.

(b) Commentaries, vol. 2. 444-5.

(c) Sometimes (Warkönig, Inst. Jur. Civ. 321) called contractus innominati, or incerti, but improperly according to Savigny.

This contract, under this general aspect, did not produce the particular actio commodati or depositi, but an actio which comprehended all cases under the name of actio præscriptis verbis or actio civilis.

y Verborum obligatio is the title of a contract which was entered into through the medium of the spoken question of the Creditor and the answer of the Debtor, both conducted according to a set form of words: (d) hence arose the unilateral contract which, under the name of Stipulatio, was, until the time of Justinian, the peculiar and favourite form of Roman convention, and under which title some of the most important doctrines relating to Obligation and Contract are, even in the Justinian compilations, discussed. (e)

& Literarum obligatio (f) was the title of a contract, which, before the time of Justinian, was concluded through a par-ticular form of written words, and founded on the domestic manners of the old Roman citizens with respect to money transactions.

(d) Dare spondes? Spondeo of Plaut. cap. iv. 2, 117.

(e) Warkönig, Instit. Jur. Civ. 296.

(f) Mackeldey, Lehrbuch, ii. s. 414. See his very learned note.

SOURCES OF OBLIGATIO.

CHAPTER XXXII.

OBLIGATIONS-ENGLISH LAW.

DCXI. The law of England and of the United States of North America upon the subject of Obligation (a) is principally derived from the following sources :—

1. The judgments of Courts of Common Law.

2. The Statute of Frauds. (aa)

3. The judgments of the Courts of Equity.

And to these may be added, with respect to some of the States which constitute the great North American Republic, 4. The Roman Law. (b)

DCXII. The Common Law (c) of England considers obliga

(a) I. English authorities referred to: Blackstone's Commentaries, vol. 2, c. 30, ix.

The Law of Vendors and Purchasers of Estates, by E. Sugden, Lord St. Leonards, præsertim, c. 4, Of Parol Agreement, general construction of

statute.

Smith's Law of Contracts (ed. Malcolm).

Addison's Law of Contracts and Rights and Liabilities ex contractu. II. North American United States :

Kent's Comm. vol. 2, lecture 39, ed. 1851.

(aa) This Statute is generally adopted throughout the United States of North America-Kent, iv. p. 316-with the exception of Louisiana, ib. 637.

(b) Kent, ii. p. 616.

(c) Blackstone remarks (vol. ii. t. 2, c. 30, ix.) that "almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts of one kind or other, or, at least, might be reduced under some of them, which, indeed, is the method taken by the Civil Law; it having referred the greater part of the duties and rights which it treats of to the head of Obligations ex contractu and quasi ex contractu."

tions only under the category of contracts, which it technically divides into three classes

1. Contracts by matter of record.

2. Contracts under seal or by deed, called covenants.
3. Contracts not under seal nor by deed, called simple

contracts, or by parol.

Practically, however, the two latter classes are alone of importance.

DCXIII. This Law defines a Contract as an agreement of two or more persons, upon sufficient consideration to do or not to do a particular thing. The agreement may convey an interest in possession; as when goods are delivered and the price paid, that is a contract executed. Or it may convey an interest in futuro or in action; as where a vendor agrees to sell and deliver goods, and a vendee agrees to accept and pay for them at a future time, that is an executory contract. It also considers Contracts as express or implied, -the former when the parties express their meaning, the latter when the law presumes a contract for some value given or service

rendered.

The term Consideration is of great importance in English Law; it means, speaking generally, a compensation, a quid pro quo of an adequate character, moving from the promisee, promised by him, not by a third party, (d) to the promisor, an inducement not of morality, affection, or honour, but of a kind which municipal law can estimate; or, as it has been perhaps best defined, "any benefit to the person making the promise, or any loss, trouble, or inconvenience to or charge upon the person to whom it is made." (e) The consideration must not be contrary to law, public policy, or good morals.

66

Such a consideration is essential to the validity of a Contract not under seal, except in the instance of bills of exchange and negotiable notes which have passed into the

(d) Smith, 91.
(e) Smith, 90.
Kent, ii. 585.