Latin
Lines 1.612-1.624
Roman Law and Society, The Institutes of Justinian 1.612-624
Not analysed yet
XIII. Obligationes.
Let us now pass to obligationes. An obligation is a tie of law, which binds us, according to the rules of our civil law, to render something.
1. The principal division of obligationes is into two kinds, civil and praetorian. Civil obligationes are those constituted by the laws, or, at least, recognized by the civil law. Praetorian obligationes are those which a praetor has established by his own authority; they are also called honorary.
2. A further division separates them into four kinds, for they arise ex contractu or quasi ex contractu, ex maleficio or quasi ex maleficio. Let us first treat of those which arise from a contract; which again are divided into four kinds, according as they are formed by the thing, by word of mouth, by writing, or by consent. Let us examine each kind separately.
XIV. Other Ways of Contracting an Obligatio.
An obligatio may be contracted by the thing, as, for example, by giving a mutuum. This always consists of things which may be weighed, numbered, or measured, as wine, oil, corn, coin, brass, silver, or gold. In giving these things by number, measure or weight, we do so that they may become the property of those who receive them. The identical things lent are not returned, but only others of the same nature and quality; and hence the term mutuum, because what I give from being mine becomes yours. From this contract arises the actio termed condictio.
1. A person, also, who receives a payment which is not due to him, and which is made by mistake, is bound re, i. e. ,by the thing; and the plaintiff may have against him an actio condictitia to recover what he has paid. For the condictio Si paret eum dare oportere may be brought against him, exactly as if he had received a mutuum. Thus a pupil, to whom a payment has been made by mistake without the authorization of his tutor, is not subject to a condictio indebitti, any more than he would be by the gift of a mutuum. This species of obligatio, however, does not seem to arise from a contract, since he, who gives in order to acquit himself of something due from him, intends rather to dissolve than to make a contract.