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[001] by night or by day,13 a robber or another, where it will be permissible for each to
[002] do right for himself without legal proceedings, with this exception, that if such are
[003] taken alive, life, death and member belong to the king.14 15Finally the words
[004] ‘what is due to one’ are inserted to distinguish it from criminal proceedings; by
[005] the latter I seek not only what is due to me but to every person,16 because of the
[006] king's peace and the common welfare.17

Whence an action arises.

[008] 18We must see whence an action arises. 19It is clear that actions are born of precedent
[009] obligations, as a daughter is born of a mother.20 The obligation, the mother
[010] of the action, takes its own origin and beginning from some precedent cause,
[011] 21either ex contractu or quasi ex contractu or ex maleficio or quasi ex maleficio.22
[012] An obligation may arise ex contractu in many ways, as from an agreement, by
[013] questions and answers, from a form of words which brings the wills of the two
[014] parties into accord, as agreements by way of pact, which sometimes are nude,
[015] sometimes vested. If they are nude no action follows, for an action does not arise
[016] from a nude pact.23 A pact must therefore have vestments, of which something is
[017] said below. From24 a cause of this kind, ex contractu or quasi, [the action] will
[018] always be civil. An obligation also arises ex maleficio or quasi, [also ex delicto [or]
[019] quasi ex delicto, [for] injuriae are of several kinds,] ex maleficio,25 as where one
[020] commits the crime of lese-majesty, homicide or theft and the like;26 quasi ex maleficio,
[021] as where a judge wittingly renders a false judgment.27 That he is bound is clear, but
[022] because he is bound neither properly ex maleficio nor ex contractu and yet is understood
[023] to have done something wrong, though only through lack of skill, he therefore
[024] is taken to be bound quasi ex maleficio.28

What an obligation is and how it is contracted.

[026] 29Since actions are born of obligations, we must first see what an obligation30
[027] (which takes its being ex contractu or quasi, not ex maleficio or quasi) is, how and
[028] by what words it may be contracted, by what persons it may be acquired and how
[029] it may be extinguished and destroyed; then, when it has been dissolved, how it
[030] may be renewed, how transferred to another person, and how one obligation may
[031] be converted into another. An obligation is a legal bond whereby we are constrained,
[032] whether we wish to or not, to give or do something,31 [if one is bound and obligated
[033] to another for something and the other is under a reciprocal obligation to him for
[034] something else, the obligatio is so to speak a contraligatio,]32 and it has four ways by
[035] which it is contracted and several vestments. It is contracted by a thing, by words,
[036] by writing, by consent,33 by traditio [or] by conjunction,34


14. Infra 298, 346, 412

15-16. Azo, Summa Inst. 4.6, no. 3

17. Infra 401

18. Br. and Azo, 141-2

19-20. Azo, Summa Inst. 3.13; G’terbock, 138

21-22. Inst. 3.13.2

23. Supra 64

24. ‘Ex’

25. Reading: ‘Item ex delicto vel quasi ex delicto (from line 22) [quia] iniuriae ... continent species, ex maleficio, ut si quis’; infra 289, 290, 438; Fleta i, ca. 16 is unhelpful

26. Infra 289

27. Ibid.

28. Reading: ‘Obligatus esse videtur, sed quia’: Inst. 4.5. pr.: ‘non proprie ex maleficio obligatus videtur. Sed quia neque ex contractu obligatus est et utique peccasse aliquid intellegitur, licet per imprudentiam, ideo videtur quasi ex maleficio teneri ...’; cf. Schulz in Seminar, ii, 47

29. Br. and Azo, 142-4

30. ‘videndum est in primis quid sit obligatio’

31. Azo, Summa Cod. 4.10, no. 1: ‘Est autem obligatio juris vinculum quo necessitate astringimur (no. 3): ad dandum aliquid vel faciendum vel praestandum’; infra 290, 291

32. Infra 287

33. Inst. 3.13.2: ‘quattuor species sunt: aut enim re contrahuntur aut verbis, aut literis aut consensu;’ infra 295

34. Supra 64, infra 289

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