Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/126

98 a proper contract in due form were not found. One was to treat the matter on the analogy of some contract the incidents of which it appeared to resemble. Thus money paid on the supposition of a debt, which however proved not to have existed, was recoverable, as if it had been a loan. Money or anything transferred to another in view of some event which did not take place was recoverable, as if paid on a conditional contract, the condition of which had not been fulfilled.

Another mode was for the complainant, instead of pleading a contract, to set forth the facts of the case and invite judgment on the defendant according to the judge's view of what the equity of the case required. Thus barter was not within the legal conception of purchase and sale, for that must always imply a price in money, but it had all other characteristics of a valid contract and was enforced accordingly on a statement of the facts. If a work had to be executed for payment but the amount of payment was left to be settled afterwards, this was not ordinary hire, which is for a definite remuneration, but might well be enforced on reasonable terms.

Before leaving contracts, which are the largest and most important branch of obligations, it is as well to point out that the transfer of an obligation, whether an active obligation, i.e. the right to demand, or a passive obligation, i.e. the duty to pay or perform, is attended with difficulties not found in the transfer of a physical object, whether land or chattels. An obligation being a relation of two parties with one another only, it seems contrary to its nature for A, who has a claim on B, to insist on payment from C instead; or for D to claim for himself B's payment due to A. With the consent of all parties, the substitution is possible and reasonable, but the arrangement for transfer must be such as to secure D in the payment by B, and to release B from the payment to A. Two methods were in use. At A's bidding D stipulates from B for the debt due to A: B is thereby freed from the debt due to A and becomes bound to D. This was called by the Romans a novation, i.e. a renewal of the old debt in another form. Similarly A would stipulate from C for the debt owed by B to A. This being expressly in lieu of the former debt frees B and binds C. These transfers being made by stipulation require the parties to meet. The other method was for A to appoint D to collect the debt from B and keep the proceeds, the suit being carried on in A's name, and the form of the judgment naming D as the person entitled to receive instead of A. Similarly in the other case C would make A his representative to get in B's debt. In practice no doubt matters would rarely come to an actual suit. The method by representation was till 1873 familiar enough in England, a debt being a chose in action and recoverable by transferee only by a suit in the name of the transferor.

Gradually from about the third century it became allowable for the agent in such cases to bring an analogous action in his own name.