Page:Harvard Law Review Volume 10.djvu/98

72 72 HARVARD LAW REVIEW. ern times, than it was when the Roman State was founded. The reason of this will be found in the change which has taken place in respect to the legal consequences of personal obligations. An obligation, according to its true nature, can be enforced only against the person or thing bound by it, and, on the other hand, the person or thing bound by an obligation becomes thereby abso- lutely subject to the power of the obligee, in case the obligation is not performed ; and this was the light in which an obligation was originally regarded by the Romans. Moreover, a personal obliga- tion, ex vi termini, binds only the person (/. ^., the body) of the obligor or debtor, and has nothing to do with his property. Con- sequently, by the Roman law, when a personal obligation was broken the obligee or creditor originally had no legal means of procuring satisfaction from the debtor's property ; he could compel satisfaction out of the debtor's property only indirectly, namely, by exerting his legal power over the debtor's body. It is plain, however, that the interests of debtors and creditors alike required that a debtor should be able to give a creditor the same rights against the debtor's property, or some portion of it, that a personal obligation gave him against the debtor's body, and no better or more obvious mode of accomplishing this object could be adopted than that of enabling a debtor to impose upon his property an obligation in favor of his creditor, in analogy to the obligation which he imposed upon his person, and accordingly real obli- gations were invented and came into use. In time, however, though indirectly and by slow degrees, creditors acquired the right, after obtaining judgments upon personal obligations, to have the same satisfied out of the debtor's property, and thus one reason for the existence of real obligations ceased. By still slower degrees, though directly and through the operation of posi- tive law, the rights of creditors against the bodies of their debtors were curtailed, until, at the present moment, they have almost ceased to exist. The result, therefore, is that personal obligations have been so perverted that, while, according to their true nature, they can be enforced only against the persons of the obligors, they can in fact now be enforced for the most part only against their property; and a consequence of this has been, that not only the distinction between personal obligations and real obligations, but the very existence of the latter, as well as the nature and proper legal consequences of obligations generally, have been in great measure lost sight of.