Notes on Roman Law

There was under the Jus Civile no limitation of actions by prescription. Rights of action were perpetual and not barred by lapse of time. The principle of limitation was introduced by the praetor, who in granting a right of action would frequently limit it by granting it only for a prescribed period, as for one year. And a general statute of limitations was enacted by the Emperors Honorius and Theodosius II, in 424 A. D., fixing the period of limitations for all actions, with some exceptions, whether in rem or in personam , at thirty years. The excepted cases were barred after forty years (Hunter, 645-649).

Releases were either formal or informal. The formal release belonged to the Jus Civile and the informal release to the praetorian law. It was a principle of the Jus Civile that a debtor could be released from his obligation only by a proceeding analogous to that by which he had bound himself. According to the older law, even payment or performance (which was sufficient under the praetorian law) did not discharge the debt unless the payment or performance was in due legal form. To constitute legal payment or performance, there must be not only the actual satisfaction of the creditor, but such satisfaction must be expressed in legal form. The actual payment or performance had to be accompanied by the formal legal discharge of the debtor. (Compare the old rule of the English law that a bond, an obligation under seal, could be discharged only by a release under seal.) At a time when a contract derived its legal force from the observance of a form, it was not unreasonable tha

As we have seen, a promise to do an impossibility, that is, something which no one, not merely the promisor, could do, was void. Such a promise created no obligation. And the rule was, in effect, the same, where performance became impossible after the promise was made. If the impossibility arose without the fault of the promisor, he was discharged. Thus, if Titius promised Gains a certain chest of money, or a certain slave, and, without the fault of Titius, the chest and rnoney were lost, or the slave died, Titius was released. Or if Sempronius promised to give to Maevius a plot of ground belonging to another, and before performance the owner buried a dead body in the land and so made it extra commercium Sempronius was discharged. But if the land belonged to Sem- pronius and he himself buried the body in it, he was liabk to Maevius for its value, the impossibility being caused by his own fault. (Hunter, 637.)

Tender might consist in a simple offer to pay (oblatio) or in a formal tender by depositing the money due in a sealed bag either in a temple or in some other place by order of a court (depositio et obsignatio). (Code, 8, 43, 9; Code, 4, 37, 19.) It is not clear whether the formal tender was more effective in discharging the debt and its accessories, such as interest and securities, than the informal offer, but it seems that the debt itself was discharged by either mode. Thus where a debtor took the money to the creditor for the purpose of paying the debt, but the creditor, without good reason, refused to take the money, and the debtor accidentally lost it on the way home, it was held that the debtor could not be compelled to pay the money. (Dig. 46, 3, 72.) In the case of money deposited, the creditor's only remedy was against the depositary. (Hunter, 637.)

It was a disputed point whether the creditor could be compelled to accept a part only of the debt, but it was held that he might require the creditor to accept part payment as a discharge pro tanto of the debt (Dig. 12, 1,21). Application of Payments. The rules as to application of payments where a debtor owed several debts to the same creditor and made payments amounting to less than the total obligation, were in favor of the debtor. The debtor might, at the time of payment, apply the payment to the debt he intended to discharge. If the debtor made no application, the creditor might apply the payment to whichever debt he pleased, with this important qualification, that he must apply it to the debt which he himself, if debtor, would have wished to have discharged. (Code, 8, 43, 1 ; Dig. 46, 3, 1 ; Dig. 46, 3, 94, 3.) If neither party applied the payment, as between a principal debt and interest, the interest was first paid off, and as between principal debts, the pay

The obligation of a contract might become ex- tinguished in several ways of which we will notice three, as follows: By (1) actual performance or its equivalent, (2) release by the creditor, and (3) prescription. Every obligation might be extinguished by the actual performance due, or by the performance of something else in its place with the creditor's consent. It was immaterial who performed, whether the debtor himself, or someone else in his behalf; the debtor was released by performance by a third person, whether he knew of it or not, and even though performance was against his will (Inst. III, 29, 1). This was in accordance with the principle that one might enrich, though not impoverish, another without his consent (Dig. 46; 3, 23; 53; Dig. 3, 5, 39). Performance by a third person, however, had to be in the name and on account of the debtor. And where the nature of the obligation rendered performance by a third person impossible, as in the case of contract for per

In order to put a stop to the oppression of debtors by the purchase of debts for less than their amount, it was enacted during the later Empire that the transferee of a debt should be permitted to recover from the debtor no more than he had paid for the debt to the transferer, with lawful interest.