Page:The New International Encyclopædia 1st ed. v. 14.djvu/841

* OBLIGATION. 715 OBLIGATION. has become simply a claim against the goods, i.e. against the estate of the debtor. It is a right in persuiiaiit only in this respect, that from the outset the creditor's chiim runs against liis debtor and no other person, while a riglit in rem runs against all the world. The duty of a per- son in possession of ])r(iperty to restore such property to its owner re^embles the duty of a vendor to deliver the tbing sold to the purcliaser; but in the former case the duty results from the owner's right in rem and is not properly described as an obligation. See Ix Eem; In Per.son.m. In the Roman Imperial law the courts enforced sjiecific performance whenever this was possible, awarding pecuniary damages also on account of the debtor's delay {mora}. If specific perform- ance could not be enforced, they awarded pecu- niary damages, which were so measured as to put the creditor in as good a position, econom- ically, as he would have occupied if the debtor had performed at the proper time and place. The same rules are applied in modern civil law, although some of the modern codes provide that, in case of money debts, damages shall not exceed the legal interest. The fact that the creditor's claim is, in most cases, enforceable only through the award of damages is the reason why it is usually asserted that no obligation exists unless the creditor's interest is measurable in money. Indirectly, however, an act or forbearance in which the promisee has no pecuniary interest can be secured by an agreement that the promisor shall pay a certain sum of money if he fails to do what he has promised, or does what he has promised not to do. Such 'conventional penal- ties' were enforced in the Roman law and are enforced at modern civil law; and although some of the modern civil codes do not require that the creditor's interest be measurable in money, claims not thus measurable can be enforced only where a decree of specific performance can be obtained from the court, or where a penalty has been stij)ulatcd. ^'hile tile obligation is thus sharply distin- guished from the right to a thing, it is never- theless true that the right of a creditor, like the right of an owner, is a property right. LiUe any other property right, it may be transferred or 'ceded' to a purchaser : it may be pledged or hypothecated by (he creditor to his creditor; it may be attached by the creditor's creditor; in case of the bankruptcy of the creditor it passes, with his other assets, to his creditors or to those who represent and act for his credi- tors; and in case of the creditor's death it passes with the rest of his estate to his legal or testa- mentary heirs (as in English law it passes to the executors or administrators). Hence the Roman jurists, viewing property as consisting of 'things,' termed the obligation an 'incorporeal thing,' and English law operates with the same conception. .ToiXT Obug.^tion.s. Where there are two or more creditors, or two or more debtors, each creditor may be entitled to sue only for his share of the claim, and each debtor may be liable only for his share of the debt. In certain cases, how- ever, any one of the creditors may be entitled to demand full ]ierformance. and any one of the debtors may be held !ial>lc for the full debt. In such cases the olilication is said to be 'solidary,' 'actively' as regards the creditors, 'passively' as regards the debtors. The effect of performance Vol. XIV.— 46. to one creditor is to extinguish the right of the others, and the effect of performance by one debtor is to liberate the others. All such rules, however, apply only to the relation between the creditor or creditors, and the debtor or debtors, and do not touch the relation of the joint creditors to each other, or that of the joint del)tors to each other. If the joint creditors have really (i.e. equitably) a joint interest, the credit- or who has received payment must satisfy the other creditors; and if the debt was really a joint debt, the debtor who has ])aid is entitled to hold the other debtors to 'contribution.' As between joint wrong-doers contribution is regu- larly excluded. Establishment. Obligations, as regards their origin, were divided by the Roman jurists into four classes: (1) those established by contract {ej cuntraelu) ; (2) those established by tort of the debtor {ex delieto) ; (.3) those which re- semble contractual obligation, although no con- tract has been concluded {r/nasi ex coniraetu) ; and (4) those which resemble obligations on tort, although the debtor himself has committed no tort (quasi ex delicto) . The most important quasi-contractual obligations are those ba-^cd on unjust enrichment and those which spring from unauthorized agencj-. The quasi-tortious obliga- tions include all the cases in which a person (father, employer, etc.) is held liable for a tort which he did not commit or authorize. The clas- sitieation is open to criticism, and while modern civil codes recognize obligations of the third and fourth class, they are sometimes described as 'obligations imposed by law.' This description is also open to criticism, as implying that con- tractual obligations are not imposed by law. In the new Cerman code all attempt at classifi- cation is abandoned, except that contractual obli- gations and quasi-contractual obligations are thrown together, and that all cases of liability for illicit conduct are placed under a separate title. Extinction, Obligations are nornuill.v extin- guished by performance. If the creditor sees fit to accept as performance something other or something less than he is entitled to demand, the obligation is extinguished. Tender of perform- ance does not have the same effect ; but if the obligation is to pay a sum of money or to deliver goods, the debtor is liberated by depositing the money or goods in a safe |)lace subject to the creditor's order. Obligations are also extinguished by the substitution of new obligations (nova- tion), if such was the intention of the parties. Obligations are likewise extinguished by merger (confusion) when the claim and the debt are united in the same person (e.g. by iidieritance) ; by set-oft' (compensation) when a <lebtor. being sued, is able to put in a counterclaim ; by re- lease ; and by discharge in baid<ruptey proceed- ings. X.VTi'RAL OntiOATioN. The Roman jurists sometimes used the term natural obligation to mean an obligation recognized by natural law (q.v. ), thus including the majority of legal obligations. More technically, however, they employed the term to describe an obligation which was legally imperfect, and which eoiild not be enforced by action at law, but which a scrupu- lous man woiId recognize !ind perform. To .all such natural obligations they attributed at least this effect, that voluntary performance was to be regarded as performance and not as gift. Fur-