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Why stipulations and obligations were devised.

[002] 1Stipulations and obligations were devised to enable everyone to acquire that which
[003] is to his interest.2 3If action is taken contrary to that provided in the stipulation,
[004] as4 where the thing stipulated for is given to another, the stipulator's interest will
[005] still be secured, for the promisor will be liable in damages to the extent of that
[006] interest, or to a penalty if such has been included in the stipulation. 5One is also
[007] bound by a written instrument, as where one states in writing that he owes; whether
[008] the money was paid him or not he is bound by the writing, nor will he be able to
[009] except that he did not receive the money since he has stated in writing that he
[010] owes it. 6One is bound not only by the words but by the writing and the letters.
[011] It is not that the letters themselves or the written characters bind, [nor] the
[012] meaningful language they express, but both the language and the written letters
[013] unite to effect the obligation.7 8An obligation is also contracted not only [by a
[014] thing],9 by a writing and by words, but by consent,10 as in contracts based upon
[015] the good faith of the parties, 11as in purchases and sales, lettings and hirings,
[016] partnerships and mandates. Such obligations are said to be contracted by consent
[017] because neither a writing nor the presence of the parties is always essential.12 And
[018] note that in these innominate13 14contracts each party incurs an obligation to the
[019] other; it is otherwise15 in a loan for consumption or a written obligation and in many
[020] other contracts. But in a loan for use and in deposit and others of the kind, though16
[021] there is no reciprocal obligation at the beginning, one may arise later, because of
[022] expenses incurred in connexion with the thing lent or deposited and the like.17

Of obligations which arise quasi ex contractu.

[024] 18We have spoken of actions which arise ex contractu. Actions also arise quasi ex
[025] contractu, as negotiorum gestio, tutela, communi dividundo, familiae erciscundae, ex
[026] testamento, condictio indebiti, and the like.19

Of traditio and conjunction.

[028] 20Traditio is treated above in the title on gifts.21 Conjunction, as where several
[029] pacts concerning the same thing are introduced into a stipulation. Several pacts,
[030] just as several things, may be brought into a stipulation, and, if they are added
[031] at once, when the agreement is made, they become parts of such agreements,
[032] impose a law upon them and fashion them;22 but if they are added after an interval
[033] of time it is otherwise.23


1. Br. and Azo, 154-5

1-2. Inst. 3.19.19: cf. G’terbock, 143 n.

3. ‘Si’

4. ‘ut’

5. Br. and Azo, 155-6; the third method of contracting an obligation

6-7. Azo, Summa Inst. 3.21. pr.

8. Br. and Azo, 157-8

8-10. Azo, Summa Inst. 3.22; the fourth method of contracting

9. ‘re,’ as Azo; supra 283-4, infra 295

11-12. Ibid.

13. ‘innominati,’ as 295 line 14; Br. and Azo, 178

14-17. Azo, Summa Inst. 3.22

15. ‘secus,’ as Kantorowicz, 43

16. ‘Sed’; ‘etsi,’ as Azo

18. Br. and Azo, 158

18-19. Inst. 3.27; Azo, Summa Inst. 3.27. pr.; this portion is misplaced as Maitland observed; it belongs at 295, n. 3. The rubric should read ‘Of actions ...’

20. Br. and Azo, 158-9

21. Traditio is the vestment of the donatio, the pact, ‘I give that you do’, as supra 125: Br. and Azo, 159, cf. 143, otherwise it is nude: supra 64

22. Supra 64, 81, infra iii, 144

23. The portion supra 64, nn. 9-16 belongs here, where the verses naturally follow. The remaining lines transposed to 288, nn. 12-13

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