^>
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
11.25
l;^ IIIM
IM
22
142 IIIM
!: 1^ 12.0
lA. nil 1.6
^
<^
/]
^)
1^>^
%
v^
^^
'^^
:% 4>.
i\
CIHM/ICMH
Microfiche
Series.
CIHM/ICMH
Collection de
microfiches.
Canadian Institute for Historical Microreproductions Institut Canadian de microreproductions h'storiques
1980
Technical Notes / Notes techniques
The Institute has attempted to obtain the best
original copy available for filming. Physical
features of this copy which may alter any of the
images in the reproduction are checked below.
n
D
D
Coloured covers/
Couvertures de couleur
Coloured maps/
Cartes g^ographiques en couleur
Pages discoloured, stained or foxed/
Pages d6color6es, tachet^es ou piqu^es
Tight binding (may cause shadows or
distortion along interior margin)/
Reliure serr^ (peut causer de I'ombre ou
de la distortion le long de la marge
int^rieure)
L'Institut a microfilm^ le meilleur exemplaire
qu'il lui a 6td possible de se procurer. Certains
ddfauts susceptibles de nuire d la quality de la
reproduction sont not6s ci-dessous.
7
n
D
Coloured pages/
Pages de couleur
Coloured plates/
Planches en couleur
Show through/
Transparence
Pages damaged/
Pages endommag^es
Tl
P<
of
fil
Tl
cc
or
ap
Tf
fil
in
M
in
up
be
fo
D
Additional comments/
Commentaires suppl^mentaires
Bibliographic Notes / Notes bibliographiques
D
D
Only edition available/
Seule Edition disponible
Bound with other material/
Reli6 avec d'autres documents
□
Pagination incorrect/
Erreurs de pagination
Pages missing/
Des pages manquent
D
Cover title missing/
Le titre de couverture manque
D
Maps missing/
Des cartes g^ographiques manquent
n
Plates missing/
Des planches manquent
Additional comments/
Commciintaires suppldmentaires
The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.
Les images suivantes ont 6t6 reproduites avec le
plus grand soin, compte tenu de la condition et
de la nettetd de I'exemplaire filmd, et en
conformity avec les conditions du contrat de
filmage.
The last recorded frame on each microfiche shall
contain the symbol —►(meaning CONTINUED"),
or the symbol V (meaning "END"), whichever
applies.
Un des symboles suivants apparaitra sur la der-
nidre image de cheque microfiche, selon le cas:
le symbole — ► signifie "A SUIVRE", le symbole
V signifie "FIN".
The original copy was borrowed from, and
filmed with, the kind consent of the following
institution:
National Library of Canada
L'exemplaire filmd fut reproduit grdce d la
gdn6rosit6 de I'^tablissement prdteur
suivant :
Bibliothdque nationale du Canada
Maps or plates too large to be entirely included
in one exposure are filmed beginning in the
upper \(**t hand corner, left to right and top to
bottom, as many frames as required. The
following diagrams illustrate the method:
Les cartes ou les planches trop grandes pour dtre
reproduites en un seul clichS sont filmdes d
partir de Tangle sup^rieure gauche, de gauche d
droite et de haut en bas, en prenant le nombre
d'images ndcessaire. Le diagramme suivant
illustre la mdthode :
1
2
3
1
2
3
4
5
6
I.EVVqS' INDEX to tlie Onta/lo Statutes. An alphabetical Index tj
the'Stftt-tt+cs of 'Ontario, *cI?nvQ to, and including the j-ear 1884,
including the Revised Statutes. By E. N, Lewis. ^2.50 Sheep,
or Half-calf, I3
LEWIS' (3N SHIPPING. A Treatise on the Law of Shipping,
respecting Inland and Sea Coast Shipping of Canada and the
United States. By E. N. Lewis. Half-calf or Sheep, ^^.
O'SULLIVAN'S CONVEYANCER. A Manual of Practical Con-
veyancing, with Forms, Precedents, and References. • By D. A.
O'SuLLiVAN, LL.B. Half-calf, $4. .
O'SULLIVAN'S HOW TO^DRAW A SIMPLE WILL. Paper,
STEPHEN'S JOINT COMPANIES. A practical exposition of the
Law of Joint Stock Associations, including the Canada Clauses
Act, 1877 and the Acts of Ontario and Quebec. By C. H. Ste-
phens. Half-calf, ^7.
■ ^'
STEVENS ON INDICTMENTS AND CONVICTIONS. A plain
statement of the Practice and Proceedings under the Statute
relating to Indictable Offences and Summary Convictions. By
J. G. (Judgfe) Stevens, Q.C. Cloth, iSi.50; Half-calf, ^z.
TAYLORS EQUITY JURISPRUDENCE. A Commentary on
Equity Jurisprudence, founded on Story. By T. W. (now Mr.
Justice) Taylor, M.A., Q.C. Half-calf, I5.
TODD'S BRITISH COLONIES. Parliamentary Government in
the British Colonies. By Alpheus Todd. Cloth, #5 ; Half-
calf, $C. .
WALKEM ON WILLS. A Treatise on the law relating lo the Exe-
cution and Revocatio n of Wills, an d to testamentary capacity.
By R. T. Walki
St, Toronto.
THE LAW OF THE KOAD ; OR, THE WRONGS AND RIGHTsS
OF A TRAVELLER. By R. Vashon Rogers, Jr. Cloth, ^1.50.
" Entertaining, interesting and instructive."
" This is full of humorous and of valuable legal information, and
the man who can combine so much excellent law (verified by adju-
dicated cases), with genuine humour, must verily be a genius,"
SCOTTISH ANECDOTES AND TALES. By Wm. Grant. I'aper,
25c. ; Cloth, 40c.
" A capital collection, illustrative of national character, and sure
to be appreciated." .
" An excellent companion for a leisure hour."
THE LAW AND MEDICAL xMEN. A Treatise on the law relating
to Physicians, Dentists and Druggists. By R.^Vachon Rogers, jr.
Cloth, $1.50 ; half-calf, ^2. Who may Practice— Negligence and
Malpractice— Criminal Mal-practice— Professional Evidence-
Medical Experts— Experts in Insanity Cases— Defamation— Rela-
tions with Patients— Dissection and Resurrection— Partners,
Goodwill and Assistants, etc.
TAYLOR'S PRESBYTERIAN STATUTE ^. A collection of the
Public Statutes, relating to the Presbyterian Church in Canada ;
with Acts and Resolutions of the General Assembly, and By-laws
for the government of the Colleges and schemes of the Church.
By T. W. (now Hon. Mr. Justice) Taylor, M.A., Q.C. Cloth, 75c.
O'SULLI VAN'S MANUAL OF GOVERNMENT. A Manual of
Government in Canada; or the piinciples and institutions of our
Federal Constitutions. By D. A. O'Sullivan, M.A. Cloth, $1.
SPLINTERS; OR, A GIU r^T ^Hr.eKiG.LES. A collection of
humorous paragraphs frqffi various sotirees; Glpth, #1.50.
. • ' *
CABSWELI. & CO., LAW FUBT.ISHEBS^'
26 & 28 Adelaide Street East, Toronto.
V »
.<-*''
K
y'-4
/J/^^
AN ESSAY ON
OBLIGATIONS ;
FOR
LAWYERS, STUDENTS AND LAYMEN.
BY
JOSEPH K. FORAN, LL.B
TORONTO:
CARSWELL & CO., LAW
1886.
TT'
3LISHERS.
Entered according to Act of Parliament of the Dominion of Canada, in the
year of out Lord, i836, by Carswell & Co., in the office of the Minister
of Agriculture.
PRINTED BY
Moore & Co., Law Printers,
20 ADELAIDE ST. EAST,
TORONTO.
To
FRANgOIS LANGELIER, ESQ., LL.D., M.P.,
Professor of Civil Law,
•AT-
LAVAL UNIVERSITY, QUEBEC,
AS
A TOKEN OF ESTEEM AND GRATITUDE.-ESTEEM FOR HIS HIGH
ABILITIES, DEEP RESEARCH, AND BROAD LEGAL
KNOWLEDGE ; GRATITUDE FOR MANY
FAVOURS AND KINDNESSES
IN THE PAST,
THIS ESSAY IS DEDICATED
BY
His Former Pupil and Constant Friend and Amnu^.v,,
THE A UTHOR.
Grken Pabk, )
Atlmkr, Quk. [
1st May, 1886. )
AN ESSAY ON
OBLIGATIONS.
BY
JOSEPH K. FORAN, LL.B.
PREFACE.
rriHE reader will find at the bottom of each page
-^ the name of the author, and the portion of the
work from which the matter in the text has been
translated. I say translated and not quoted ; because
all the works upon the Civil Laws of Lower Canada
are either French or Latin. The old and modern
authorities upon the Laws of France, the Code
Napoleon, and consequently upon our own Code, have
written in the French language, while the very first
principles of those laws were given in the works of
the ancient Roman jurists in the Latin language.
VI
PREFACE.
As it is sometimes impossible, even with circumlo-
cution, to render in one language the exact expression
of the other, whenever I find that my English falls
short of the original, I give, instead of only the name
of the author and the page of his book, the full
French or Latin text. Thus there can be no mistake.
Also, at the foot of the page, containing any article
of our Code, will be found the number of that article.
I do not deem it necessary to reproduce each article
in full ; whenever I find it expedient to make '^se of
any article, or portion of an article, I give it between
quotation marks. I likewise indicate that which is
new law. Therefore, in the text, any words found
between quotation marks, are taken from the Civil
Code of Lower Canada. At the bottom of the page
will be found the number of the article. At the end
of each paragraph is a small lettev indicating the
authority, at the foot of the page, from whom it has
been translated. Any portions of the work not so
indicated or otherwise marked out, are my own.
The names of the authorities being given in abbre-
viations, it might be well to here mention some of
their names in full.
On Roman Law: — Justinian ; Ulpien ; Paul ; Domat ;
Maynz ; Ortolan ; Demangeat ; The Institutes ; The
Novels ; etc.
On Old French Law. — Pardessus ; Furgole ; Au-
zanet ; Dumoulin ; Pothier ; etc.
On Modern Frencl Law : — Mourlon ; Valette ;
Demolombe ; Aubry and Rau ; Marcad^ ; Duranton ;
PREFACE.
Vll
amlo-
Bssion
1 falls
name
e full
stake,
article
irticle.
article
'^se of
etween
lich is
found
e Civil
e page
he eud
ng the
it has
not so
1.
abbre-
ome of
lomat ;
Is; The
Duverger ; Laurent ; Merlin ; Lahaye-Waldeck-
Kousseau; etc.
The Code Napoleon, and Civil Code of o^v^jr
Canada.
In the first chapter I explain why and for w )m
this small work has been written ; in the second
chapter I give a synopsis of the whole Code^ or
rather, the plan of the Code ; in the third chapter
will be found a map of ** Obligations." Consequently
the Essay commences to explain the *' Title of Obliga-
tions," properly speaking, only with the fourth
chapter. Still these three first chapters are verj-
necessary, above all for law-students and laymen.
Without further preface, let us take a rapid survey
of this, the most important part of the Civil Laws !
Trusting that the importance of the subject, the
utility of the information imparted and the necessity,
daily augmenting, that each and all the citizens of
Canada should know something of the law, may, to
a certain extent, compensate for the poverty of the
style and the many little shortcomings in the work-
manship of this Essay, I give it to the public, as the
fruits of considerable study and the result of long
reflection.
J. K. F.
; Au-
[alette ;
•anton ;
-: j»\j.-
C]
TABLE OF CONTENTS.
rr.KFACK —
C!haptek I. — Introductory
C'haptku II. — Plan of the Civil Code
Chapteu III. — Map of Obligations..
Cw-tPXER IV. — Obligations..
Sec. I. — Contracts.
Sec. II. — Causes of nullity . .
Skc. III. — Interpretation
Sec. IV. — P^ffect of Contracts
Sec. V. — " with third parties
Sec. VI. — Avoidance
Chapter V. — Quasi-Contracts
Sec. I. — Negotioruni-gestio ..
oEC. II. — Ileceittion of thing not due
Chapteu VI. — Offences and Quasi-offences
Chapter VII. — Obligations from law solely
Chapter VIII. — Object of Obligations
Chapter IX. — Effect of Obligations
Sec. I. — General Provisions. .
Sec. II. — Defaults
Sec. III. — Damages
Chapter X. — Kinds of Obligations
Sec. I. — Conditional Obligations
Sec. II. — Obligations with a term
Sec. III. — Alternative Obligations
Sec. IV. — Joint and several Obligations
S.-S. I. — Joint and several Creditors
S.-S. II. — Joint and several Debtors
Sec. V. — Divisible and Indivisible Obligations
Sec. VI. — Obligations with penal clause
PAGE.
1
10
18
10
20
22
28
31
33
35
38
3i)
42
4u
50
52
64
54
5(5
57
61
01
68
70
72
72
74
87
'.)4
TABLE OP CONTENTS.
Chapter XI.-
Sec. I.-
Sec. II.-
S.-S.
-Extinction of Obligations
-General Provisions..
-Payment
I. — General Provisions
II. — Subrogation . .
S.-S. III. — Imputation ..
S.-S. IV.- Tender and Deposit
Sec. III. — Novation
Sec. IV. — Release
Sec. V. — Compensation
Sec. VI. — Confusion . .
Sec. VII. — Performance impossible
Chapter XII. — On Proof . .
Chapter XIII. — Synopsis of Obligations
Chapter XIV. — Conclusion . .
PAOK.
.. 100
.. 100
.. 102
.. 102
.. 10'.)
.. 115
.. 117
.. 120
.. 127
.. 130
.. 135
.. 137
.. 140
.. U5
.. 152
CHAPTER I.
INTRODUCTORY.
M. Siffrein, in his preface to the works of Pothier,
says : ** We can never know the Code so long as we
only study the Code. Such was the remarkable
maxim proclaimed from the tribune by the deep and
wise Portalis, at the memorable epoch of the restora-
tion of French laws. It is, in truth, in the great
body of Roman law; it is, more especially, in the
works of those famous jurists, whom France so
honours, that we must seek the knowledge of the true
principles. Those works, stamped with the seal of
equity, trace to the Roman lawgivers those eternal
rules which reason suggests to all good men and in-
spires them with the desire to have them applied in
the case of the feeble and the oppressed even as in
their own cases. Pothier had recourse to the text of
the Institutes]; he procured aid from the commentaries
of VinniuSf and thus prepared to go drink at the very
fountain head of the law."
When reading the above remarks I reflected upon
their truth and the idea flashed across my mind, that,
in order to properly understand our laws, we need to
read something more than the Civil Code. I fancied
at once an objection that many might make, by stating
2
INTRODUCTORY.
that they could not read French. This I answer by
translating the works of those French commentators
into English. Again, the reader may say that he has
not time to read all the endless author! cies. There
have been several thousand pages written upon the
question of *' Obligations" alone. Well, then, I over-
come that difficulty for him by condensing those
numberless pages into the space of a couple of hun-
dred. Here you have, in English, a compendium of
those works which are most usually quoted. It is in
order to convey an idea of the real beauties and
harmonies of the study of the law, while at the same
time offering an easy method of studying and retain-
ing the all important laws of obligations, that I have
compiled, arranged and now present this essay.
Law, says Blackstone, is a rule of action prescribed
by a superior power.
Law, says Story, in one of his introductory chapters,
is the offspring of God and like Him is everywhere.
Deep in the nature of things lie her fountains, and
their outfiowings gladden all existence. From her is
the nmsic of the universe. Befi o all, in all, above
all, subject only to the Infinite One, she reigns over
matter and mind alike.
Indeed, continues Story, the fountains of law are
all one, universal, united, unchanging spring, issuing
forth from the bosom of the Deity. With Him they
are ever present ; in Him they are ever following ; like
Him they are ever one ; like Him, moreover, they are
multiform in manifestation ; and hke Him they bless
INTRODUCTORY.
8
wherever they are. LaiL\ in the broadest acceptation
of the term, is the order of the universe, and it has as
many narrower meanings as there are subjects to
which our minds apply the word.
We read the truth, pervading every system of juris-
prudence, that, whenever a matter comes before -the
courts it is really a call for a new enunciation of
legal doctrines ; and that from the past we only can
gather a few rules to guide us in the future. We
learn that both the olden light and the new point to
the way of principle for the settlement of new cases
where particular precedents fail.
« Very poetic all this !" The exclamation has already
been made and made very sarcastically. But we must
remember that there is poetry in law. The botanist,
walking along the highway, perceives a small plant ;
at once his trained eye has detected the species and
his mind, at a flash, suggests the family. Meanwhile
his companion may not perceive the plant at all, or if
he does notice it, he only knows that it has such or
such a colour. Again the astronomer gazes upon the
heavens, he sees more than a mere canopy of stars in
that vast empyrean. For him the earth stands forth
a suspended ball, taking its place as one of the planets
and like them pursuing its appointed path, the arbiter
of times and seasons. Beyond our planetary system,
extended by the discovery of Neptune, to three thou-
sand millions of miles from the sun and throughout
the expanse of the universe, the telescope exhibts to
him new suns and systems of worlds, infinite in
INTRODUCTORY.
P
number and variety. As you progress you behold on
all sides wonders and changes — in the history of the
ages — the progress of society — in the improvements
and inventions of the times. So must you notice the
same in the rise, progress and changes of the laws,
which ever and always keep pace with the march of
humanity and, like each of the other -ciences, irresist-
ibly draw our attention to the wonderful workings of
God and the majesty and genius of His creature man.
Not only is there poetry in the real study of the
law, but history, science, literature, all go hand-in-
hand with the law. There being a certain harmony
in the law, even as in the systems of the universe, it is
well to point it out at times, and it is always danger-
ous to disturb it. In this essay I have attempted to
indicate the progress of the principles that rule us to-
day, and to convey to the reader an idea, concise and
exact, of our laws of obligations, without clashing with
the Civil Code or any of the authorities.
Mourlon, in the preface to his second volume on the
Civil Code, says : — I have followed the order of the
Code, as to the titles and sections ; but I have
wandered from the order of the articles whenever it
appeared to me to be defective. Sometimes, indeed,
the dispositions of a section are like a heap of rules
without any connection or reference to each other,
wdiich renders the study of the text both laborious and
difficult ; for, in order to grasp the proper meaning of
many of them, it is necessary to unite considerable
application to a gr t deal of discernment. This want
INTRODUCTORY.
of order is the cause that, at the very commencement
of their careers, many stiiuents, who have no guide,
are too often discouraged and hring to their work
minds that are already tired and lazy. When the
memory is loaded and the judgment emharrasrcd with
a confusion of ill-regulated decisions, it is difficult +0
form for oneself a clear and exact system and to
arrange in the mind that which is so disarranged in
the hook. 1 have not sought to he elegant in style.
Before all, I wished to be clear, logical and to make
each principle exact, also to render the study of the
law so easy that the most rebellious minds may
attempt it with encouragement and pleasure.
To a certain extent 1 may, here, reproduce those
words of Mourlon and apply them to this little essay.
For three classes have these pages been composed.
Firstly, for the lawyers of the Province of Quebec ;
Secondly, for the law stud 3nts ; and Thirdly, for the
laymen, merchants, traders, farmers, &c., whether in
the Province of Quebec or in the Province of Ontario.
A word to each of the three categories of my
readers, before entering upon the study !
Firstly. — The lawyers of the Province of Quebec may
herein find the compendium of those works from which
oui principles of Civil Law are derived. Again these
pages with their lists of authorities may serve as an
index to the larger volumes from which these extracts
have been taken. In so much this essay may be of
use to both the English and French speaking members
of the Bar. For them no further explanation or
6
INTRODUCTORY.
introduction is necessary; they know the vahie of a
legal dictionary or a legal index, just as the merchant
knows the value of a ready-reckoner.
Secondly. — To the law-students. In the next chapter
you will find a synopsis or plan of the whole Code, so
arranged that, by once reading it, even the dullest
aspirant must remember its contents. Without
method or system the study of the law is an endless
labour, tiresome and profitless ; but once a plan is
drawn out, a method adopted, there is no study so
easy and so pleasant. Let a man visit the catacombs
without a light and a guide and what is the result ?
Without the light he must stumble, become entangled,
fall and perhaps injure himself ; without the guide he
will certainly get lost. It is so in the endless labyrinth
and winding corridors of the law.
In the third chapter you will find a ynap or synopsis
of the ** Title of Obligations." Stamp that one page
upon your memory and you will never forget the
fundamental laws of obligations. No matter when an
examination may be called you will be ready. At the
end I give another synopsis fuller and minuter.
But it is necessary to read over the whole essay in
order to derive much benefit from it. Let the student
study well my system of studying obligations and he can
then apply it to the study of all the other parts of the
Civil Code.
Thirdly. — To the laymen, (merchants, farmers, men
of all trades and professions outside the profession of
the law). Especially, almost, for your benefit have I
INTRODUCTORY.
le of a
jrchant
jhapter
ode, so
dullest
i^ithout
3ndless
plan is
udy so
tcombs
result ?
mgled,
lide he
•yrinth
compiled and composed these pages. It is a saying,
very common, if not very exact, that "every one is
supposed to know the law." How far the maxim is
true will be explained hereafter, but for the present
let us remember that, whether it be the case or not
that every one is supposed to know the law, it is
certainly of great use to each one to have an idea, clear
and correct, of the general dispositions of the laws
that govern him and regulate his rights and wrongs.
In two cases, more especially, do you find the want of
that general knowledge and do you fully appreciate
its value. Let us examine both cases.
Firstly. — When you deem yourself injured and are
doubtful whether you have a legal right to an action
at law or not.
Secondly. — Whenever a neighbour or other person
sues you, or threatens to, or actually does summon
you bv^fore the courts. If he has a right to an action
at law against you, it is worse than useless for you to
defend your case. In fact it would be a great loss to
you were you to take up the contest. On the other
hand, if he has no right to pich action at laWy it
behooves you to join issue with him.
Now, when have you and when have you not a right
to an action at laiv ? I will, here, answer the question
in a general manner and you may conclude therefrom
the benefit it will be to you to read on and discover,
in these fe .v pages, the details of that general answer.
In other words, you will find the law made clear,
simple and exact.
8
INTRODUCTORY.
There are two thinpjs necessary, both of which
must have had existence, before an action at law may
be had. Firstly, an obligation ; and secondly, the
violation of that obligation. The latter supposes the
former, but the former does not necessarily suppose
the existence of tile latter. An obligation may have
existed and become extinguished, and yet neither of
the parties have a right to an action before the courts.
By a simple example I will illustrate the idea I wish
to convey and, at the same time, demonstrate the
necessity of a clear knowledge of obligations.
Jones and Smith are neighbours. They have had
no communication, in any way, with each other ;
there has never been nor is there now any obligation
existing between them. Neither then has a right to
an action against the other. But Jones offers Smith
$100 for his black horse and Smith accepts the offer.
At once two obligations arise (springing from the
contract of sale). Jones is obliged to pay the $100,
while Smith is obliged to give over to Jones the
possession of the black horse. Smith transfers the
horse, his obligation is extinguished, (by means of
payment); but Jones refuses or neglects to pay the
$100. At once ho violates his obligation, and upon
that violation is founded an action at law in favour of
Smith. The fact of the obligation existing did not
give a right to that action ; it was the existence of the
obligation coupled with the violation of it.
I hear you say that you knew all that before, with-
out my writing it down for your benefit. It is the
INTltODUCTORY.
9
simplicity of the illustration that makes you imagine
that you knew it before. Now do you know ivhen an
obligation exists ? — what the sources of obligations
are ? — how many kinds of obligations may arise ? —
how many ways, and by what means an obligation
may be extinguished ? You don't answer. Wdl, if
by a series of simple examples, I answer all these
questions for you and so illustrate them that you
cannot be mistaken in the future, I expect to hear
you say, when you have laid aside this little work,
that you knew all that before. If so I shall be satisfied,
as in that remark I shall hear the best and most
favourable comment I could desire for upon my essay.
The following chapter is written, principally, for
law-students, but the lawyer and layman may both
find in it some little information that might be of use
to them.
!
; I
!
10
PLAN OF THE CIVIL CODE.
CHAPTER II.
PLAN OF THE CIVIL CODE.
The late Mr. eTustice McCord, of Quebec, in his
preface to the 1867 edition of the Civil Code of Lower
Canada, remarks : '* The Commissioners presented
in all eight Eeports on the Civil Code. The first
Eeport, dated 12tli October, 1861, contained the draft
of the title Of Obligations, which, because of its
importance, as being the basis of the greater portion
of the whole Code, it had been decided to commence
with. For the same reason, this title was, even more
than any of the others, the subject of long and careful
examination and discussion." Again referring to the
authorities quoted under each article of the Civii
Code, the same writer says: '* It must not be sup-
posed that all thes'^ authorities are in support of the
text ; some are directly opposed to the articles above
them. As already stated, they are the authorities
consulted by the Commissioners, and nothing more."
We see from this to what a small degree we can
depend upon the authorities found mentioned in the
Code. It is necessary to seek out authorities for
ourselves.
m
PLAN OF THE CIVIL CODE.
11
In another place, in the same preface, Mr. Justice
McCord remarks : '' These special references are by
no means intended to restrict the reading of the Code
to the articles enumerated, or to enable any class of
persons to dispense with a knowledge of the other
portions of the work. It is assumed that, even outside
of Lower Canada, every literate man in the Dominion
ought to avail himself of the means afforded him by
our Quebec Code, to obtain a general knowledge of
the laws of the oldest of the Confederate Provinces."
In termii„ating the same preface the learned judi:i^e
says : ** The English speaking residents of Lower
Canada may now enjoy the satisfaction of at least
possessing in their own language the laws by which
they are governed, and the Province of Quebec will
bring with her into the Confederation a system of
laws of which she may be justly proud : a system
mainly founded on the steadfast, time-honoured and
equitable principles of the civil laws, and which not
only merits admiration and respect, but presents a
'^^orthy model for legislation elsewhere."
From these remarks I naturally conclude that the
authorities quoted under the articles of our Code are
not all exact and that many contradict the Code. I
may here state that our Code is very deficient in
definitions. I also conclude that before the Code the
English speaking residents of the Province of Quebec
had no statement of the laws in their own language.
And since the Code few, if any, have written in English
upon those laws. With the exception of a '' carefully
12
BRITISH SUBJECTS — PERSONS.
written pamphlet by Thomas Eitchie, Esq., contaming
observations upon the title Of Obligations,'' nothing
has appeared upon this the most important and most
fundamental part of the Code. Finally, I infer from
that preface, that a knowledge of those principles and
laws is required outside the Province of Quebec as
well as within its limits.
I proposed giving, in this chapter, a plan of the
Code. By plan I do not mean a synopsis of the
whole work and its contents. That would require
several hundred pages. It is me^'^ly an indication of
the line of reasoning followed, very naturally, by the
codifiers in disposing and arranging the different
titles and sections. If the student will pay special
attention to the next couple of pages he may find
therein a system or plan which, if once grasped and
understood, will always be a guide and an aid in
remembering the contents of the Code.
Firstly. — It is well to know who is and who is not
a British subject, for the law suffers many exceptions
in the case of aliens. Therefore does the Code begin
the First Book with the explanation of who are
British subjects and upon civil rights, how gained,
how lost. But the Code does not define an alien. In
fact it gives very few definitions. We shall have to
supply them. An alien is a foreigner. The regis-
tration of acts of civil status, that is birth, death,
marriage, &c., naturally follow, and the question of
domicile and that of absentees come next in order.
The whole of the First Book refers to persons. In the
THINGS ; RIGHTS OF PERSONS.
13
Second Book we read of thinr/Q. Just reflect for a
moment upon the logical order of these books.
The laws are intended to define the rights of
persons. Then first of all persons must exist. The
question of marriage is consequently treated of at
the very outset. The laws regulating separation from
bed and hoard follow very naturally. We then com-
mence the life of a person springing from that
marriage and follow it through all its phases.
Before its birth^— the question of filiation. Then,
as soon as born, comes the question of paternal
authority. For the first years of its life it is a minor.
Then we have the laws regulating minority and its
accidents, tutorship and emancipation. Tutorship
being the guardianship of the minor and emancipation
being his delivery, by extraordinary means, from the
bondage of minority. Then follows the title of majority
with its accidents of interdiction, curatorship and
judicial advisers.
Now we have followed the British subject from
birth, through all the stages, up to majority, or legal
manhood. That ends the question of persons as indi-
vidaals. Now there are other legal persons called
corporations. A corporation is a body composed of
one or many individuals, forming one legal being, and
being perpetual at least in theory. With corporations
ends the First Book. .
Now that you have persons the next requisite, to
establish those rights, is an object, or, in other words,
things. The Second Book, then, distinguished things
14
OWNERSHIP, GIFTS, WILLS.
into moveable and immoveable. Having persons and
things, you next require to know what connection
exists between them. The first is oivnership. When
the Code disposes of the laws regulating ' le oivnership
of a tJmig by a person, it passes on to the other minor
connections that may exist. Of these we first meet
with usufruct, then use and habitation. Besides these
direct claims of persons to things there are other
lesser rights which arise in the forms of servitudes and
emj^hyteusis
So far we have 1st, persons ; 2nd, things ; 3rd,
direct and indirect connections between the two. The
question that now naturally suggests itself to the legal
mind is : How may persons acquire those rights upon
things ? There are several ways, and the Code takes
them up in their logical order. The Second Book ends
with those claims of persons on things, and the Third
Book opens with the different modes of the acquisition
of property.
The first means, then, of acquiring property is by
successions. That important title of the Code com-
prises 158 article^'. The next important means of
acquiring property is by gifts inter vivos and by ivill.
These, including substitutions, take up 228 articles.
Up to this we have 1st, persons ; 2nd, things ;
3rd, connection between persons and things ; and 4th,
acquisition of property. So far the law treats of
silent or inactive rights. Now it behooves us to ex-
amine into active rights, that is those claims of persons
on persons, or persons on things put into action or
TITLE OF OBLIGATIONS
15
lotion by means of actions at law. As I before
explained, no action at law can exist until there has
irst been an obligation^ and then the violation of that
[obligation. Coming now to the assertion of rights or
the defence of them before the tribunals, we must first
know what an obligation is when it exists, from what
it may arise, how many forms it may assume, and
Ihow it dies out.
Consequently the next title of the Code is that of
Migations. It is with this we shall have to deal in the
^n-esent work. The law having defined those obliga-
tions goes on to explain in detail the different con-
tracts from which they may arise, and the many modi-
ications to which these contracts are subject. There-
fore we find the fourth title commencing with marriage
\ovenants. This title includes the laws of dower. Then
:e have the different actions that may take place
petween persons with regard to things. SaUy lease
\iiid hire, mandate, loan, deposit, partnership, life-
•ents, transaction, ga7ning contracts and bets, surety-
\ship, privileges and hypothecs, 7'egistration of real
'ights, and finally prescription.
The Fourth Book is on Commercial Law, Bills of
Ixchange, Notes, Cheques, Merchant Shipping, Af-
freightment, Carriage of Passsengers, Insurance,
)Ottomry and Respondentia.
Behold now the whole Code revolving around the
(title of obligations. As the rays to a burning focus,
all the titles and sections converge towards obligations
I on the one hand, while in equal lines do they diverge
16
KEY- STONE OF THE CODE.
I
therefrom on the other. It is like the central planet
of a system, supporting all the others wMle keeping
them at regular distances. You have now the great
arch of the civil law spanning {he history of a British
subject and his rights, from the marriage of his
parents, on through his minority, then majority, the
acquisition of his rights, the changes they may be
subjected to, until he reaches their final extinction or
renewal in prescription. And of that arch the key-
stone is the title of obligations. Take away that
key-stone, and the whole fabric comes down with a
crash.
In order then to remember the plan of the Code,
you have only to commence at your birth, or rather
the marriage of your parents, and follow your own
career up to the age of twenty-one. Then consider
that any claim you may have to a thing (moveable or
immoveable) arises from either ownership or servitude,
and that in order to have such claim you must have
got it either by succession, gift, or will. Finally that
any disturbance of that claim must lead you to the
consideration of the title of obligations, and that the
rest of the Code is but the development of the princi-
ples laid down in that title.
So far, strictly speaking, I might call all my
remarks introductory ; and truly they are more or less
So. It may seem quite out of proportion to the bulk
of the essay to have so many pages of introduction.
But I deemed them necessary, and moreover, if you
like, you may consider them part of the essay itself.
,; '
PLAN OF THIS ESSAY.
ik
I wish to draw special attention to the next chapter,
which is nothing other than a map of the title Of
Oblujations. It will serve as a guide in following me
through the different parts of the essay. Also it will
be of use to stamp upon the student's mind the plan
of this very important portion of the Code.
You will see by this plan that I will first define
Obligations — the Code does not do so. Then I will
give the sources of Obligations with the omitted defini-
tions. Then the effects of Obligations. Then the
I different kinds oi Obligations; and lastly, the extinction
of Obligations. At the close the reader will find a
minute and detailed synopsis, and a chapter referring
to proof of Obligations.
There are 275 articles under the title of Obligations;
of these 54 treat of proof and testimony.
It is as well to remark here that several of the
articles of the Civil Code (which has been twenty
years in force) have been changed, more or less, by
statutory legislation. As I do not pretend to follow
the Code more than the authorities, but merely pur-
pose confining myself to the exposition of the geiieral
principles of Obligations, I cannot point out these
different changes. It would form subject for a very
useful work by itself. This essay is more for students
and laymen than for members of the legal profession.
1'i
d
N
18
MAP OF OBLIGATIONS.
CHAPTER III.
MAP OF OBLIGATIONS.
I. Sources of
Obligations.
1st. Contracts.
2nd. Quasi-ContractB,
3rd,
4th.
1.5th.
II. Effects of j cJf J-
Obligations, j"'^^^-
/ 1st.
2nd.
3rd.
III. Kinds of
Obligations.
Offences.
Quasi-Ofifences.
liesult of the Law.
Default.
Damages resulting there-
from.
Conditional.
With a Term.
Alternative.
Ist. Marriage Covenants.
2nd. Sale.
3rd. Lease and Hire.
4th. Mandate.
5th. Loan.
Deposit.
Partnership.
8th. Life Kents. ,,
9th. Transaction,
10th. Bets— Gaming lebts.
Suretyship.
Privileges and Hypo-
thecs.
Prescription.
Negotiorum gestio.
Reception of a thing
not due.
6th.
7th.
11th.
12th
13th
1st.
2ud.
4th. Joint and Several.
IV. Ordinary
means of Ex-
tinction of
. Obligations.
V. Extra-
ordinary
means of Ex--
tinction of
Obligations
5th.
VGth.
I
1st. Payment.
2nd.
3rd.
4th.
5th.
V6th.
/ 1st.
2nd.
3rd.
4th.
1st. Joint and Several Credi-
tors.
2nd. Joint and Several Deb-
tors.
5th.
V6th.
Divisible and Indivisible.
With a Penal Clause.
11st. In Genei-al.
2nd. With Subrogation.
3rd. Imputation of Payment
4th. Tender and Deposit.
Novation.
Release.
Compensation.
Confusion.
Performance becoming Impossible.
Judgment in Nullity.
Effect of Resolutive Condition.
Pi'escriptlon.
By Expiration of Time Limited by Law or by the
Parties for its Duration.
By Death of Creditor or Debtor in certain cases.
By special Clauses Applicable to Particular Contracts.
OBLIGATIONS DEFINED.
19
CHAPTER IV.
age Covenants.
jaw or by tho
OBLIGATIONS.
What is an Obligation ? (a) Our Code does not tell
us, so we must seek elsewhere for a proper definition.
An Obligation is a legal tie by which one person is
bound towards another to give, to do, or not to do
something (h).
There are imperfect and perfect Obligations. The
former may be styled duty, or what we owe to God or
our neighbour, like charity, gratitude, &c. The latter
are those giving the one against whom they are
contracted a right to demand their execution (c).
A legal tie is a figure of speech, a metaphor
employed to designate the means of enforcing its
fulfilment (d).
Obligations to give and to do differ. Error of person
rarely causes the nullity of an Obligation to give, but
often causes the nullity of an Obligation to do some
thing (e).
(a) Arts. 982cfe983.
(b) Vinculum juris quo necessitate astringimur alicujm rei Solvendct
Just. tit. de Ohiig. L. 13 ff. de Oblig.
(c) Poth. Ob. N. I.
id] Mourlon vol. ii. No. 1024.
(e) Idevi, "
20
CONTRACTS DEFINED.
Three conditions are ** essential to an Obligation
that it should have a cause from which it arises,
persons between whom it exists and an object " [a),
** Obligations arise from contracts, quasi-contracts,
offences, quasi-offences and from the operation of the
law solely " (&).
Section I. — Contracts,
A contract is not defined in the Code (c). It w^ill
be remarked, as we proceed, how very few legal
definitions the Code supplies. What is a contract ?
Contract is a convention whereby two parties recip-
rocally, or one of them only promises and binds
himself to give, to do, or not to do something {d).
It has also been defined as the agreement of two or
more persons upon the same object (e).
The species of convention known as a contract is
that which has for its object the formation of some
engagement (/).
A convention or contract has again been styled the
agreement of two wills to produce a legal effect. That
legal effect may be either the creation of one or more
(a) Art. 982.
(6) Art. 983.
(c) Art. 984.
(d) Poth. ob. 3.
(e) Duorum vel plurium in idem ]:lacitum consensus,
if) Poth. ob. 3.
Ill
CODE ON CONTRACTS.
21
Obligation
h it arises,
object " {a),
3i-contracts,
ation of the
(c). It will
' few legal
a contract ?
a,rties recip-
and binds I
ing (d),
it of two or
contract is
on of some
. styled the
ffect. That
me or more
Obligations, or the extinction or modification of an
existing Obligation, or else, (what did not exist in the
days of Pothier) a changement of property (a).
A contract is a convention by which one or many
persons (oblige themselves) bind themselves towards
one or many others to give, to do, or not to do some-
thing {h).
^' There are four requisites to the validity of a
contract : parties legally capable of contracting ; their
consent legally given ; something which forms the
object of the contract ; a lawful cause or considera-
tion" (c).
** Upon each of these four requisites let us say a
word. Those incapable of contracting are minors ;
interdicted persons ; married women in certain cases ;
those who for reason of relationship are forbidden by
the law ; persons insane or suffering from a temporary
derangement of intellect arising from illness or other
cause" (ci). ** Consent may be either express or
implied." ** A contract without a consideration or
with an unlawful consideration has no effect." *' The
consideration is unlawful when it is prohibited by law,
or is contrary to good morals, or public order."
It would be tedious and unnecessary to enter into
the technical details of the different kinds of con-
tracts. There are contracts called synallagmafiques
(a) Mour. vol. ii. No. 1026.
{b) C. N. 1101.
(c) Art. 984.
00 Arts. 985 to 991.
in
Ml
I ).
I cannot bind a third party by my promise and
when I promise for a third party I don't bind myself.
Example.— Friinus says : I buy your horse for
S ecu?idu 8 mymnndaioY. hi fact Primus ^ the mandat-
ary is the one who promises and stipulates. In law
it is Secundus, the mandator, who is the promising
and stipulating party. So the maxim is true, that a
mandatary can lawfully stipulate for his mandator,
and lawfully bind him towards third parties (c).
The following two rules from French law regulate
the questions of this section : —
1st. In general no one can bind any one except him-
self by agreement in his own name. 2nd. In general
one can only stipulate, in his own name, for himself.
How can you, in your own name, promise the act of
another? The hypothesis is impossible. Pothier is
clearer than the French Code on this point {d).
However, I can bind a third party — 1st. Whenever
I have a mandate from him. 2nd. Whenever the con-
tract I undertake for him is to his great benefit (e).
(a) Alteri stipulari nemo potest. Ulpien.
{b) Si qtiis velit alienum factum promittere, pcenam vel quantiea res
est, potest promettere. Ulpien, L. 38, sec. 2, ff. d. t. • Grotius ibid.
Pufendorf. Poth. Ob. 56.
(c) Mour, vol. ii. No. 1065.
{d) Mour. vol. ii. No. 10G6.
{e) Mour. vol. ii. No. 1067. Comp. M. Demangeat, caws iUm, do
droit 7'oinain, t. ii. sur le litre De inutil stipul.
AVOIDANCE OF CONTRACTS.
85
Section VI. — Avoidance of Contract and Payments
made in Fraud of Creditors,
" Creditors may in their own name impeach the
acts of their debtors in fraud of tlieir rights " (a).
'' A contract cannot be avoided unless it is made by
the debtor with intent to defraud." " A gratuitous
contract is supposed to be made with intent to
defraud." "An onerous contract by an insolvent
debtor is deemed to be with intent to defraud."
New law. — ** No contract or payment can be
avoided by reason of any thing contained in this
section, at the suit of any individual creditor, unless
such suit is brought within one year from the time of
his obtaining a knowledge thereof. If the suit be by
assignees or other representatives of the creditors
collectively, it must be brought within a year from
the time of their appointment" (h).
Creditors may attack all acts of their debtors made
in fraud of their rights (c).
In order to attain this end, in Koman law, the
Praetors gave the Action Paulienne, It is so called
from the name of the Praetor who instituted it {d).
To have a right to this action, (in case of actes d
tirte on^reux) the creditor must prove, 1st, prejudice
(a) Arts. 1032 to 1041.
[h) Art. 1040.
[c) Mour. vol. ii. No. 1186. See Insolvent Act of 18(54 and the
recent amendments.
{d) lust. Jus. lib. iv. tit. vi. sec. 6, art. 1167 C. N.
86
ACTION PAULIENNE.
in
1 ' '
to his intorests {eventus) ; 2nd, fraud on part of the
debtor (consilium) ; and 8rd, compliance of the one
dealing with him. In cases of acts d tirte gratiiit, the
creditor can take action against the donors, even in
good faith, and he need only prove, 1st, prejudice,
and 2nd, fraud (a).
By the Action Paidienne, creditors may attack the
acts by which a debtor fraudulently diminished his
estate, but not acts whereby he neglected to augment
it {h).
Creditors, anterior to an act of renunciation, may
have the use of the Action Paulienne ; but not those
that come after that act, because the rights of the
latter did not exist at the time of the act, and there-
fore no fraud could have been done them (c).
Those against whom the Action Paulienne may be
used are — 1st. Those who acquire under onerous title,
when they are accomplices in the fraud. 2nd. Against
those who acquire by gratuitous title, even though
they be in good faith. 8rd. Against their universal
heirs and s^ ""^^ssors (ci).
The ' i the Action Paulienne is to place things
(a) Mour. 1176, vol. ii. ; Dur. vol. x. No. 575; Marc. art. 1167;
Larombifere, vol. i. art. 1167, No. 26 ; Demol. vol. ii. No. 190.
(b) Mour. vol. ii. No. 1178.
(c) Idem 1181. , .
((.') Idem 1182, Dur. vol. x. p. 582; Val. Aubry andEau, vol. iv.
sec. 313, note 4; Marc. art. 1167 ; Demol. vol. ii. No. 198.
MEANS OF PREFERMENT.
M
in the state in which they were previous to the act of
fraud (a).
(This revocation brings the goods back to the estate ;
and it is only the anterior creditors that demand the
notion. Therefore, it should set aside for them the
goods thus brought back.) This is a false reasoning.
There are only two means of preferment, viz.,
privileges and hypothecs. If you give the anterior
creditors a sole right in the benefits of the act of
revocation you establish a preference that exists no
place in law (h).
(a) Mour. vol. ii. No. 11.83; Colraet de Santarre, vol. v. No. 82;
Troplong sur privil. vol. i. Nos. 11, 14, 15.
(b) Laromb. vol. i. art. 11G7 ; Mour. vol. ii. No. 1183; contra,
Dur. vol. X. No. 574 ; Marc. art. 1107.
'Il . i
88
CODE ON QUASI-CONTRACTS.
CHAPTER V.
1 1
QUASI-rONTKACTS.
"A person capable of contracting may, by his
lawful and voluntary act, oblige himself towards
another, and sometimes oblige another towards him,
without the intervention of any contract between
them "(a).
*'A person incapable of contracting may, by the
quasi-contract which results from the act of another,
be obliged towards him" (h).
Quasi-contract is the act of a person, permitted by
law, which obliges him towards another or obliges
another towards him, without that any convention
exists between them (c).
For example, the acceptance of a succession by an
heir is a quasi-contract binding him towards the
legatees. Payment of a thing through error of fact
gives rise to the quasi-contract of restitution. In a
contract consent is necessary to create an obligation,
but in quasi-contract the law, in virtue of equity,
(a) Art. lOil.
(&) Art. 1042.
(c) Poth. Ob. 113.
NRGOTIORUM GESTIO.
39
establishes the obligation. In the latter it is not
necessary that the person be sane or of age (a).
Fools cannot be bound by contract, offence or quasi-
offence ; because consent is necessary in all of these.
But by quasi-contract they can be bound (6).
Arts. 1371 and 1370 of the Code Napoleon contradict
each other as to a quasi-contract having a double
effect. But we see by our Code that a manager and
master are both, at the same time, bound and obliged
by the quasi-contract negotiorum gestio. Our Code
only gives two species of quasi-contracts, but, says
Mourlon, the acceptance of a tutorship is one, also
the acceptance of a succession (^).
Section I. — Negotiorum-gedio.
" He who of his own accord assumes the manage-
ment of any business of another, without the know-
ledge of the latter, is obliged to continue the manage-
ment which he has begun, until the business is
completed, or the person for whom he acts is in a
condition to provide for it himself .... Ho
subjects himself to all the obligations which result
from an express mandate " (d),
(a) Potli. Ob. 114 and 115.
{b) Poth. Ob. 128.
(c) Mour. vol. ii. No. 1661.
{(I) Arts. 1043 to 1047.
40
DEFINITION OF NEGOTIORUM GESTIO.
^
I II
He must exercise the care of a good administrator,
and "he whose business is well managed is bound to
fulfil the obligations that the person acting for him
has contracted in his name."
Any one administering the business of a child : that
child is obliged to give credit to that person for all his
trouble and useful labour, and rice versa (a).
Pufendorf thinks that an oath procured by fraud is
no more binding in the eyes of God than one extorted
by violence. Grotius thinks an oath extorted by
violence is binding, for the ivill had full sway ; not so
in case of fraud, because it was taken on a false sup-
position {b).
Gestion-d' affaires (negotiorum gestio) is the voluntary
act of a person who, without mandate, acts, stipulates,
or promises in the interest of a third party (c).
The relations between the mandator and mandatary
are the same as between the administrator and the
owner, except two cases. 1st. The mandatary, who
does what bis mandator tells him, has a right to his
expenses, even if the work was of no benefit to the
mandator. Not so for the administrator (g^rant),
2nd. If the mandator dies, the mandatary is not
obliged to continue the business, save in case of
extreme necessity ; while the administrator (g&ant) is
obliged to continue for the benefit of the heirs (d).
{a) Poth. Ob. 116.
{b) Poth. Ob. 112.
(c) Mour. vol. ii. No. 1(JG3.
{(i) Mour. vol. ii. No. 1664. Crie Napoleon, arts. 1999 and 1991.
CONDITIONS OF QUASI-CONTRACT.
41
If the law is harder upon the voluntary admin-
istrator of another's business than it is on the
mandatary, it is in order to keep people from
meddling in the business of others.
The administrator is subject to all the obligations
resulting from a contract of mandate (a).
The master, whose business has been well adminis-
tered, is subject to all the obligations of mandate {b).
Two conditions are necessary in order that this
quasi-contract exist. — Ist. That the business be admin-
istered without the consent, express or tacit, of the
master. 2nd. That the administrator did not act
animo donandi (c).
There are two actions given under this source of
obligations. 1st. If you administered the affairs of A.,
thinking them to be B.'s, you have the actio negotiorum
gcstio. 2nd. If you acted, thinking the business to be
your own, you have the actio de in rem verso (d). .
No further explanation is necessary for members of
the Bar, and only for them does the questiv^n of the
actions at law have any interest.
{a) Art. 1709 to 1720 C. C. L. C.
\1)) Arts. 1720 to 1734 C. C. L. C.
(o) Mour. vol. ii. No. 1667 ; Laromb. vol. v. arts. 1372, 1373, Nos.
11, etc. ; C. de Santerre, vol. v. 345 ; Aubry et Rau, vol. iv. sec. 411,
note 2.
(d) Aubry et Rau, vol. iv. sec. 441, p. 725 ; Mour. vol. ii. No.
lOfiS, p. 880.
42
RECEPTION OF A THING NOT DUE.
Hi ■ '1 :
Section II. — Reception of a thing not due.
" He who receives what is not due to him, by error
of hiw or of fact, is bound to restore it, or if it cannot
be restored in kind, to give the value of it" (a). The
rest of this article is new law. "If the person
receiving be in good faith he is not obliged to restore
the profits of the thing received."
I give the new law a special attention, because it is
contrary to the dispositions of the old law and the
text of authorities. "He who pays a debt believing
himself by error to be the debtor, has a right of
recovery against the creditor." If he be in bad faith
he must restore interest, profits, etc. If he received
in bad faith and after being put in default he con-
tinued to keep it, he becomes answerable for its loss,
even by a fortuitous event ; unless it would have
equally perished in the hands of its owner. Let us
say a table : it was burned in the house of the holder
of it — but by the same fire the owner's house was
destroyed : it would have been lost in either case. If
he be in good faith. and sell the thing, he must restore
the price of it. He to whom the thing is restored
must pay the possessor, even were he in bad faith, the
expenses of keeping the object in a state of preserva-
tion. For example, the feed of a horse.
In three cases does the obligation arise from this
quasi-contract of reception of a thing not due.
(a) Arts. 1047 to 1053.
WHEN OBLIGATIONS AKISE.
IS
1st. When a debt that seemed to exist, but which
really did not exist, has been paid through error.
2nd. When a really existing debt has been paid by
the debtor to a person who seemed to be the creditor
but who was not.
3rd. Finally when the debt was paid to the creditor
by one who seemed to be debtor but was not (a).
The plaintiff, when an action is taken, upon the
violation of the Obligation arising from this quasi-
contract, must prove. — 1st. That he intended to pay oif
a debt. 2nd. That the debt did not exist (h).
As it is impossible to enter inio details of as minute
a nature as I would like, I will just give an example of
each of the ways in which this quasi-contract may
exist and then, in the words of a French author,
resume the whole theory of our law.
Ist. Jones owes Smith $15 for oats and other things ;
it is a running account and Jones kept no record of it.
He sends his son to ask Smith the amount. Smith
says *' fifteen dollars." The son thinks he said
" fifty dollars." In consequence of the mistake
Jones pays Smith's agent $50. The quasi-contract
arises creating the obligation on Smith to refund,
^v'hen he learns the mistake, the sum of $35 to Jones.
2nd. Jones owes $50 to Smith, but he don't know
Smith personally. A man calls and asks for " that
fifty dollars." Jones supposing it to be Smith pays
(a) Moiir. vol. ii. No. 1672.
(6) Idem No. 1677.
44
EXAMPLES OF QUASI-CONTRACTS.
him the amount. Again arises the quasi-contract and
its obligations.
3rd. J. B. Jones owes Smith $5. Smith has had
dealings with J. H. Jones, but J. H. Jones is not in
debt to Smith. By mistake of clerk the bill is sent to
J. H. Jones, instead of J. B. Jones. J. H. pays it.
The quasi-contract again appears.
The whole theory is simple. No one should profit
by the error of the one who pays what is not due ;
but, as his error is a fault, no one should suffer
thereby (a).
(a) Idem No. 1688 ; Aubry et Rau, vol. iv. sec. 442, notes 37, 33 :
Marc. arts. 1378-1380.
iltn :«
: I,
OF OFFENCES AND QUASI-OFFENOES.
45
CHAPTER VI.
OF OFFENCES AND QUASI-OFFENCES.
'* Every person capable of discerning right from
wrong is responsible for the damage caused by his
fault to another, whether by positive act, impru*'' )nce,
neglect or want of skill "(«).
*' He is responsible not only for the damage caused
by his own fault, but also for that caused by the fault
of persons under his control, and by things which he
has under his care" (h). For example, the father for the
child ; tutors for their pupils ; curators for the insane ;
schoolmasters for pupils ; masters for servants ; the
owner of an animal for the damage he may do. In
case ot death of party, resulting from offence or quasi-
offence, the heirs, within a year, can bring an action
for damages.
However, a teacher is not answerable for the offence
of his pupil, when he could not have prevented it or
did not know of it (c). .
(a) Arts. 1053 to 1057.
{b) Art. 1051.
(e) Nullum crimen patitur is qui noti prohibct, quum prohibere non
potest, L. 109, ff. de R. J. : culpa caret qui scit, sed prohibere iion
potest, L. 50, ff. d. t.
m
ACTION AND OMISSION.
Masters are only answerable for the offence or quasi-
offence of servants when they commit them in the
course of the functions for which they are employed (a).
There is a difference between the perpetrator of an
offence and one held responsible as third party. The
former in case of contraintc jmr corps maj^ be impri-
soned, while the latter can only suffer in his goods {h).
The offence or quasi-offence may consist in an
action or in an omission. If an action, it must be one
forbidden by law, — if an omission, it must be of some-
thing ordered by law. There are three conditions
requisite for the existence of these sources of obliga-
tions. 1st. An illicit act. 2nd. Imputable to its
author. 3rd. Causing injury or damage to another (c).
Let us take a few examples :
The father is answerable for the fault of his mino7'
child residing with him. The law don't distinguish
between emancipated and non-emancipated minors.
Even for majors residing ivith the jather (or in case of
his death the mother), he is responsible if he is proven
in fault. In the case of minors there is a legal pre-
sumption against parents ; not so in case of majors.
Minors not with parents, are supposed to be at school,
or in the army, or under tutors, or lawfully absent,
otherwise parents are answerable for them {d).
(a) Poth. Ob. 121.
(6) Poth. Ob. 122.
(c) Mour. vol. ii. No. 1690.
\d) Mour. vol. ii. No. 1692.
♦ T1
Pf
EXAMPLES OF OFFENCES AND QUASI-OFFENCES.
47
Even a tutor (if the child lives with him) is respon-
sible for his conduct (a).
Let us see an example of a servant's case. A. hires
B. as coachman. B. driving A.'s horse runs into a
window and causes damage. A. is responsible, as he
was in fault in selecting such a coachman. But B.
going along meets C. (whom he hates) ; with a crack
of his whip he puts out C.'s eye. A. is not answerable in
that case. B. was not performing his duties of coach-
man, but going unnecessarily beyond them.
Damage caused by objects under our care. Example :
A. owns a bull ; the bull gets out and does damage ; A.
is answerable for it. Or again, A. owns a ship ; for
want of proper repairs it sinks and causes great loss
to others ; he is responsible to a certain degree. A
civil and a cjiminal offence differ. In the former there
must be intention — (where there is no nitention it is
a quasi-offence) — in the latter intention is not always
necessary. Example : Homicide, through imprudence,
is a criminal offence, for it entails a correctional
penalty. It is not a civil offence, since there was no
intention to injure (/>).
I cannot agree with this opinion of Mourlon. It
may be very well in French criminal law (of which I
know very little), but it evidently has been the
expression of a man who was ignorant of the princi-
ples of English criminal law. And, as in Low^er
Canada, English criminal law is that of the Province,
(fl) Mour. vol. ii. No. 1693.
{b) Idem No. 1699 : French Penal Code No. 319.
' M
jai
48
CIVIL AND CRIMINAL ACTIONS.
I thought well to here remark that the intention is a
sine qua non of any criminal offence, howsoever great
or small. Bv intention is meant the exercise of the
will. When the ivill is fettered, the broad principles
of British law state that there is no crime. For that
reason an idiot, or an insane person, cannot commit a
crime, although they may be able to perform an act
that, if performed by a sane person, would be a crime.
However contrary to our jurisprudence the French
author's opinion may be, I introduce it here, with
another object, with a view to the following dis-
tinction.
When civil and criminal actions pend in the same
case, the civil must await the decision in the public or
criminal tribunal. A civil action arising from a civil
and criminal offence is prescribed by the lapse of time
that prescribes a public offence; that is to say : ten,
three, or one years, according as the action springs
from a crime, an offence, or a mere contravention.
Civil action springing from a civil offence is prescribed
by thirty years (a) .
I must once more point out the difference in French
criminal law (as stated by my authority), and English
criminal law. In our law there is no prescription for
a crime. By Mourlon's text 3^ou would be led to be-
lieve that an action based on manslaughter (for
example) would be prescribed by ten years. If it is
so in French (which I doubt), it is not in English
(a) Mour. vol. ii. No. 1700.
OP OFFENCES AND QUASI-0FFENCE8.
49
criminal law. The ten years prescription would be
granted because the action sprang from a crime. For
that very reason it is not ever prescribed in our law.
If a man commit murder to-day, in fifty, or even a
hundred years (were he to live that long), he might be
tried for the crime. I refer thus to our criminal law,
in order that the reader may not be mistaken by the
text of my authority and led into error.
M
il
'
!!'.''
iiiiil
li:
M ■
•M ■ ■
i ii:! ;:i
I.J I
lit
k
60
FIFTH SOTTRCE OF OBLrGATIONS.
CHAPTER VII.
OBLIGATIONS WHICH liESULT FROM THE
OPERATION OF THE LAW SOLELY.
" Obligations result in certain cases from the sole
and direct operation of law, without the intervention
of any act, and independently of tlie will of the person
obliged or of him in whose favor the obligation is
imposed. Such are the obligations of tutors and
otber administrators who cannot refuse the charge
cast upon them. The obligation of children to furnish
the necessaries of life to their indigent parents ;
certain obligations of owners of adjoining properties ;
the obligations which in certain cases arise from
fortuitous events; and others of a like nature " (a).
Such is the article of our Code aud I fail to see
v>'here commentators or authorities add anything to it
or serve to explain it or render it clearer than it
actuallv is. The fact is that all obligations arise from
the law. Those arising from an act of man other
than a contract are cither legal or illegal. If legal
they give rise to a quasi-contract — if illegal to an
offence or quasi-offenc^e. I don't see the necessity of
(a) Art. 1057.
*x
I "'••I
OBLIGATIONS WHICH RESULT FROM OPERATION, ETC. 61
this fifth distinction. But since it exists in the Code
we must take it. French authorities say that when a
tutor accepts a tutorship his obligations arise from the
sole operation of the law. But we have seen already
that his obligations are personal and arise from quasi-
contracts.
The object of this essay is not to give the opinions
of every one who wrote upon obligations, it is to con-
vey, in English, a clear idea of what obligations are,
and give it as briefly as possible.
I
52
OF THE OBJECT OF OBLIGATIONS.
II !i
4i '!;.
' 'I'l'
CHAPTER VIII.
OF THE OBJECT OF OBLIGATIONS.
"Every obligation must have an object," *'It
must be something that is an object of commerce."
*' It must be something determinate, at least in kind."
*' Future things may be the objects of an obligation."
** But a person cannot renounce a succession not
yet devolved, nor make any stipulation with regard
to it" (a),
*' The object of an obligation must be something
possible and not forbidden by law or good morals" (b).
The stipulation triticiim dare oportere, by which the
party stipulating has the option to give any quantity
he desires, produces no obligation, because it can be
reduced to a minimum or next to nothing. Example :
A grain of wheat (c).
Future objects may be the object of an obligation,
but are conditional. If I promise to give you next
year's wheat crop and all my wheat crop is destroyed
by frost or fire, the obligation vanishes {d).
111!:
(a) Arts. 1058 to 10G3.
(h) Art. 1062.
(c) Poth. Ob. 131.
(d) Poth. Ob. 132.
Ill ;'
! ^ ,■
OF THE OBJECT OF OBLIGATIONS.
63
It is evident that what is not in commerce cannot
be the object of an obligation. Example : Church
property ; a public square ; a bishopric, etc (a).
Ko one is bound to the impossible, therefore the object
of an obligation must be something possible (b),
A fact contrary to law or morals is the same as an
impossible one. The law de eo quod certo loco decides
that if I promise to build you a house and no place is
mentioned, there is no obligation (c).
Future successions cannot be the object of an obli-
gation or contract. 1st. Because he who bargains
upon a future (therefore doubtful) succession cannot
know the extent of his future right or power. 2nd.
Because such conventions are dangerous, as they give
to third parties an interest in the death of a person
stranger to them. 3rd. Because it is immoral and
contains on the part of the contracting parties a votimi
mortis (or desire for the death of a party) (d).
The object should be — 1st. Possible. 2nd. Useful to
the creditor. 3rd. Not contrary to law or morals (e).
(a) Poth. Ob. 135.
{b) Impossihilium nulla obligatio est. Poth. Ob. l.SO.
(t) L. 2, sec. 5, ff. de eo quod certo loco. Poth. Ob. 137.
{fl) Mour. vol. ii. No. 1095.
(e) Idem No. 1096.
54
OF THE EFFECT OF OBLIGATIONS.
I a
Ml
!!"
M:
i I 'I
If
i^'U
M't
i
l!
i
1 •'
P
t
\i
i:
i
CHAPTER IX.
OF THE EFFECT OF OBLIGATIONS.
Section I — General Provisions,
*' An obligation to give involves the obligation to
deliver the thing and to keep it safe until delivery'' (a).
New Laic. — " The obligation to keep the thing safely
obliges the person charged therewith to keep it with
all the care of a prudent administrator" {h). A creditor
may also demand that what is done, in breach of obli-
gation, be undone, if it be possible.
As this article is directly contradicted by article
1536 of the Civil Code, I will give both, in full, and
point out which prevails. *' E^'ery obligation renders
the debtor liable in damages in case of a breach of it
on his part. The creditor may, in cases which admit
of it, demand also a specific performance of the obli-
gation, and that he be authorized to execute it at the
debtor's expense, or that the contract from which the
obligation arises be set aside ; subject to the special
provisions contained in this Code ; and without preju-
dice, in cither case, to his claim of damages" (c).
Article 1536 reads, '* The seller of an immoveable
cannot demand the dissolution of the sale by reason of
(a) Arts. 10(53 to 1067.
\b) Art. lOG-1.
(c) Art. 1005.
GENERAL PROVISIONS.
55
the failure of the buyer to pay the price, unless there is
special stipulation to that effect." In the Code this
is marked as new law. In the case of Richard v. La
Fahrique de Quebec, it was decided that article 10G5
should prevail and 1536 be wiped out. I cannot agree
with such a decision, when I see that 1536 is neiv law,
iind that in 1065 it is said, *' Subject to the special
provisions contained in this Code." Now, 1536 is one
of those special provisions to which 1065 subjects
itself. Again, 1536, being newer law, must have been*
created with the object of counteracting, in case of
sale, the general rule laid down by 1065.
When you fail to perform something to which you
are obliged your creditor cannot have you condemned
to do it, but to imtj damages for not having done it (a).
The care in conserving the object should be gauged
by the nature of the contract. If the contract is
exclusively in the interest of the creditor, the debtor is
only answerable for loss of the object through grave
fault; but if the contract is exclusively in his own
favour, he is answerable for its loss by slightest fault ;
while, if the contract is reciprocal, he is only held
responsible for loss through his slight fault ih).
iill obligations to do or not to do resolve themselves
into damages for non-fulfilment (c).
(rt) Poth. Ob. 157. Nemo potest prcrcis(}co(ii ad fcictum.
{h) Mour. vol. ii. 1118 ; Demangeat, vol. ii. p. 522.
(c) Mour. vol. ii. No. 1138, par. 4; art. 1142, C. N. ; Bug. sur
Poth. vol. ii. p. 75; Marc. art. 1144; Demol. vol. i. No. 488;
Aubry et Rau, vol. iv. sec. 209, p. 40, etc.
'^;
EXPLANATION OF DEFAULTS.
Section II. — Defaults.
■■¥
%
I'll
'J
i
::::!
m\'
■ a^ .
I"); ;
Debtor may be put in default by lapse of term, if in
the contract ; by law suit ; by written demand ; or by
sole operation of law. He is in default when the
thing which he agreed to give or do could not be given
or done within a certain time which he allowed to
oxpire (a). The next article is new law.
** In all contracts of a commercial nature in which
the time of performance is fixed, the debtor is put in
default by the mere lapse of such time" {h).
Often the debtor is bound in damages to his creditor
for failure of doing what he should have done (c).
In order to claim damages the creditor should prove,
1st, his claim ; 2nd, the default of the debtor, and 3rd,
the existence of prejudice to his interests and the
amount (quantum) thereof (d).
In ancient law the debtor was not supposed to be in
default except when the execution of his obligation
was judicially demanded (e).
The obligation to give a thing, often extends to the
fruits of that object (/).
Default is the translation of the French word
demeure. It means to be warned of the existence of
the obligation and cautioned to fulfil it or else .
(a) Arts. 1067 to 1070.
(6) Art. 10C)9.
(c) Poth. Ob. 147.
{d) Mour. vol. ii. No. 1143.
{€) Poth. Ob. 144.
(/) Poth. Ob. 145.
^YHEN DAMAGES MAY BE HAD.
57
Section III. — Damages.
Damages are not due for inexecution of an obliga-
tion until the debtor is in default, except in the case
of the obligation not to do. He is not liable to pay
damages when the inexecution was due to a fortuitous
event or irresistible force and not his fault. Damages
due the creditor are, generally, the amount of his loss
and the profit of which he was deprived. When there
is no fraud, the debtor is only liable for damages which
had been or might have been foreseen at time of con-
tract (a). The next is new law.
*' When it is stipulated that a certain sum shall be
paid for damages for the inexecution of an obligation,
such sum and no other, either greater or less, is
allowed to the creditor for such damages. But if the
obligation have been performed in part, to the benefit
of the creditor and the time for its complete perform-
ance be not material, the stipulated sum m^y be
reduced ; unless there be a special agreement to the
contrary" (h).
Damages from delay in payment of money, consist
only of interest at the rate legally agreed upon, or
fixed by law. These are due without the creditor
being obliged to prove any loss. They are only due
from day of default. This does not apply to bills of
exchange and suretyship.
{a) Arts. 1070 to 1079.
(b) Art. 1076.
fl^
I?
ill!
53
COMPOUND INTEREST, ETC.
((
i
I ',fi,!i'
■'i::ii!
iN
DP
I
III: ill;
Interest accrued from capital sums also bears
interest. 1st. When there is a special agreement to
that effect. 2nd. When in an action brought such
new interest is special!}^ demanded. 3rd. When a tutor
has received or ought to have received interest on (lie
moneys of his pupil and has failed to invest it within
the time prescribed by law" (a).
I produce this article in full, because it is a general
idea amongst people to-day that compound interest is
not allowed by cur law. That idea is correct as to
the rule, but there are three exceptions to that rule.
Let us see a few simple examples that may illuslrote
the foregoing principles.
A. sells a horse to B., to be delivered on Monday.
Monday comes and A. don't deliver the horse. The
price of horses goes up §20. A. is obliged to pay B.
the $20 difference that B. was obliged to give for
aD other horse.
Suppose B. wanted the horse on Monday to go to
town and buy a house for sale that day. In conse-
quence of A. not delivering the horse on Monday, B.
loses his chance of the house. A. is not held respon-
sible for that. There must have been other ways of
getting to town.
A. sells B. timber for a house. A. is neither
carpenter, nor lumber dealer. The timber is rotten
and the house falls. A. is not answerable in damages
for that misfortune. B. may get the price he paid
(a) Art. 1078.
EXAMPLES OF DAMAGES.
59
for the timbGi* reduced. It would be otherwise if A.
were a dealer in wood and knew the difference of good
and bad timber. •
A. sells B. a horse that has pink-eye. He don't
inform B. of the fact, and in consequence B.'s horse
takes the disease and dies. A. is obliged to pay B.
the value thereof. But suppose that in consequence
of B.'s horse dying, that B was unable to do his
spring ploughing, and had no crop that year on that
account, would A. be liable for all those 'amages ?
No. Only for those damages which are the imme-
diate consequence of the act, is he liable (a).
Even delay in execution of obligation gives rise to
damages. The debtor is liable for damages, — 1st.
When he failed wholly, or in part, to fulfil his obliga-
tion. 2nd. When he delayed the ^ecution of it (h).
Example. — A. sold B. a farm that belonged to E.
and E. put B. off it. B. spent §100 in necessary
repairs. A. is obUged to refund it to him. Now
suppose B. spent $100 in ornamenting and unneces-
sary expenses on the farm ; if A. were in good faith he
i ' not answerable for them, but if in bad faith he must
refund them to B.
If a penalty is mentioned in the agreement, the
creditor will get the amount of it, and no more.
(a) All these examples are from Pothier on Obligations, Nos. 142,
113, U9, 159, 160, 161, 165, 166, 167, 170, 171,345, 660, 668.
(6) Mour. vol. ii. No. 1154.
I
60
REDUCTION OF PENALTY.
Pothier and Dumoulin think otherwise, but the Code
Napoleon and our Code are positive.
In Roman law, compound interest was allowed, but
Justinian did away with it, and the old French law and
the Code also forbid it.
When there is a penalty, and the obligation was
partly fulfilled, the penalty may be reduced. But not
so if the creditor obtained no benefit from the partial
fulfilment of the obligation (a).
(a) C. N. art. 1154 ; Mour. vol. ii. No. 1157 ; Marc. art. 1154 ;
Dumol. vol. i. No9. 655 et 650 ; contra, Aubry et Rau, vol. iv. sec.
308, note 58.
tti
Si
!Pii;>'
n
llip
if
«iH
CONDITIONAL OBLIGATIONS.
es
CHAPTER X.
DIFFERENT KINDS OF OBLIGATIONS.
Section I. — Of Conditional Obligations.
** x\n obligation is conditional when it is made to
depend upon an event future and uncertain, either by
suspending it until the event happens, or by dissolving
it accordingly as the event does or does not happen" (a).
If inconsistent with law or good morals, or if in itself
impossible, or if dependent on the will of the party
promising, the condition is void. No time marked for
its fulfilment, it may be fulfilled at any time. The
condition is broken by the party bound under it
preventing it. Its fulfilment has a retroactive efiect.
A resolutive condition obliges each party to restore
what he received, and places things as they were.
(As we proceed the details become more numerous, in
proportion as the sections become more important.
Upon this section of conditional obligations ^ I will give
several pages from the ancient, medieval and modern
writers. Its importance, I think, justifies me in so
doing, for nine out of ten of our obligations are con-
ditional.)
(a) Arts. 1079 to 1080.
«l
iUl
62
DIFFERENT KINDS OF CONDITIONS.
I ' i
}
ill'''
nil:
III
i
Ii,
^!l:-'!^:i
J!
!!,i;:i ill
iltiilll:
l.ill^
Pothier gives us three kinds of conditions — 1st.
Positive. 2nd. Casual. 3rd. Mixed. An example of
each — 1st. I promiae to give you something, if you cat
down a tree in your field. 2nd. If such a ship arrives
safely in England. 3rd. If you marry my cousin(rt'.
In order that a condition may suspend an obliga-
tion, it is necessary — 1st. that it be the condition of
something future. An obligation contracted on a past
or present condition is not, properly speaking, condi-
tional, even though the parties are ignorant of the
event. So says the law, 100 £f. de vert. Oblig. (also
our Code, art. 1079) (b),
2nd. That it be the condition of something of worth
that suspends the obligation, something possible,
lawful, and not contrary to good morals. If such
conditions are imposed the obligation is null. For
example, to make the obligation depend upon the fact
if yoii will make vie a triangle ivitlioiit any angles; or
that you go naked in the street, etc. These are un-
lawful conditions (c).
If I agree to give you something, in case it pleases
me to do so, the convention is null and void. The
liomans thought that it was otherwise in case of a
convention wherein I agree to give something when I
feel inclined to do so. (L. 46, sees. 2 and 3, ff. de Verb.
(a) Poth. Ob. 201.
{b) Poth. Ob. 202 ; conditio in jynete.ritum non tantum in prasens
tenqms relata, statitn ant yerimit ohlif/ationem, aut omninS non differt ;
Add. LL. 37, 38, 39,/. de r, cred.
(c) Poth. Ob. 204.
T^
VALIDITY OP CONDITIONS.
G8
Oblig.) But this hair-splitting distinction cannot be
admitted in our law (a).
There is another distinction, in the case of promise,
if I think it reasonahle. Here it does not depend on
mv will alone whether I am to fulfil the condition or
ft-'
not. If it becomes reasonahle I must fulfil it (/;).
That a condition be valid, it must not destroy the
nature of an obligation. For example, if I promise
something on condition that it pleases me — si valuero
— an obligation is a legal tie {vinculum juris quo
necessitate adstringinnir)^ and enfolds a necessity to
give or to do. If the condition depends upon the will
it is no longer of the essence of the obligation, but
contrary to its nature. However, the condition may
depend upon the will of a third party (c).
The condition may be something within the power
of the debtor and of great interest to the creditor.
Example. — A. offers to pay B. a sum if he (B.) will
cut down certain trees upon his property. B. could
be summoned to elect between the two, the sum or
the trees ; i. e., to take or refuse the sum by cutting
or refusing to cut the trees. The Romans were divided
upon this. Pothier followed the S.- inian school [cl).
A rule applicable to all conditions of obligations, is
{a) Poth. Ob. 47.
{h) Idem 48.
(c-) Idem 205.
{d) Idem 211.
I
! I
f;H
'!.
INil!
iililiiiiiii
M
THE EFFECT OF A CONDITION.
that tlio condition is considered to be fulfilled when
the debtor has prevented its proper fulfilment (a).
If the creditor dies before the fulfilment of the con-
dition, although as yet he had no real right or claim,
but merely an expectation of one, and if the condition
becomes fulfilled after his death, it is considered to
have been transmitted to his heirs, claim, condition
and all. The reason of this is that the condition of
an obligation is retroactive in its effects (6).
An example of the above. A. has a mortgage or claim
on B.'s property. The condition suspends the obli-
gation of settling the claim. A. dies and leaves E.
his heir. After A.'s death the condition is fulfilled ;
then E. has the same rights or claim on B.'s property
that A. would have had in case he had lived.
The effect of a condition is to suspend an obligation
until the fulfilment of the condition : until then there
is only an expectation, not a real claim (c).
Therefore, payment made, in error, before the
fulfilment of the condition, may be revoked. If the
object of a conditional obligation perishes before the
time for its fulfilment, the obligation also dies out
with it {d).
You give or lend Peter $100 on my order. I bind
myself to refund the money, on condition that such a
(«) Idem 212 ; quicunquc sub comUtione ohligatus curaverlt ne con-
ditio existeret, nihilominiis ohligatur ; 1, 85, sec. l,ff. de verb, obliy.
{b) Idem 220.
(c) Poth. Ob. 218.
((/) Idem 219.
MODERN COMMENTATORS.
65
^w:
ship arrives safely in England. That is a suspensive
condition, and I only become debtor when the ship
has arrived. But suppose that I oblige myself towards
you until the ship arrives in England. That is a
resolutive condition. The moment the ship arrives I
am no longer ciebtor, no matter whether she be in good
order or not (a).
Let us turn now to more modern commentators
upon these laws. Let the reader remark the har-
mony existing between the more ancient, the modern
and our own systems.
All real and personal rights may become conditional.
It was by inadvertence that the Code, in its rubric,
speaks exclusively of conditional obligations. Pothier,
who treated of conditions with regard to obligations,
had no need to occupy his time with conditions on
real rights, for in his day contracts were simply pro-
ductive of obligations. (Remark that this author is
here speaking of the Code Napoleon, not our Code).
The Code, acting like Pothier, paid no attention to
the terms of articles 711 and 1138, that contracts can
at one and the same time create obligations and
transfer real rights. (M. Vallette) {b)o
* * * ''When an obligation depends upon an
event which has actually happened, but is unknown
to the parties, it is not conditional " (c). So says our
Civil Code. Now to show how exact our Code is and
'^jlt
(a) Idem, 224.
{h) Mour. vol. ii. No. 1188 : M. Viillette.
(r) Art. 1079.
li
1. 3';
It
III
9' ■
1 .'(:
•iihiilll
66
C. N. ON CONDITIONAL OBLIGATIONS.
how careful the codifiers were in selecting the hest
authoiitioS and most reasonable solutions of such-like
questions, read the following :
The Code (Napoleon) defines a conditional obliga-
tion twice. Firstly, in art. 1168, and secondly, in
art. 1181. The former says : ** A conditional obliga-
tion is one that depends upon an event future and
uncertain ;" the latter says : " A conditional obligation
is one that depends either upon ^future and uncertain
event or else an event which has actually taken place,
hut as yet unknown to the parties.'' Which of these
two are we to take ? The first by all means, for it
agrees with the Eoman law, with our old French law
and with the nature of things themselves. What is a
conditional obligation ? It is one that perhaps does
and perhaps does not exist. Therefore it is only con-
ditional in as much as the event to which it is subject
is xincertain. We adopt the first rule (a).
Therefore the part of article 1079, which I cite above,
is taken from new French, old French, modern Eoman
and old Eoman law. Pretty long pedigree; long
enough to command respect !
" An obligation conditional on the will purely of the
party promising is void ; but if the condition consist
in the doing or not doing of a certain act, although
such act be dependent on his will, the obligation is
(a) Mour. vol. ii. No. 1189 ; Dur. vol. xi. No. 11 ; Bug. sur Poth.
vol. ii. p. 104 ; Aubry et Eau, vol. iv. sec. 302 p, 02 ; Marc. art.
1181 ; Dexiiol. vol. ii. Nos. 295 et 29G.
RESULTS OF FULFILLED CONDITIONS.
67
valid" (a). This is our law: now read the French
comments upon the Code Napoleon.
According to the wording of article 1174 (C. N.),
the obligation contracted under an optional (potesta-
tive) condition on the part of the debtor is null. That
disposition it "^o absolute in its terms. The obliga-
tion that depends solely {uniguement) on the will of the
debtor is null ; in this case truly no bond or legal tie
exists. But it is not so when the obligation is sub-
ject to an event which the debtor can cause to exist
or prevent from existing {h).
In the case that a condition includes a term or pre-
fixed time in which it should be fulfilled ; if it be posi-
tive, it is fulfilled the moment it has failed to become
realized at the time prefixed ; if it be negative, it is
accomplished the moment the time is up and that the
event has arrived (c).
A fulfilled condition having a retroactive effect, it
results therefrom — 1st. That if one of the parties to
the contract dies pendente conditione, all its legal
effects may be invoked for or against his heirs. 2nd.
That the rights, servitudes, privileges, or hypothecs
created pendente conditione by the conditional aliena-
tion of the object, ..re considered to be created upon
the object of a third party and are therefore null . 3rd.
That, on the other hand, all the rights created, at the
same time, by the conditional acquirer, are considered
(a) Art. 1081.
(b) Mour. vol. ii. No. 1190.
(c) Idem, No. 1201.
I i:
\m
68
TERMAL OBLIGATIONS.
b
■
to have been created by the real owner ancl are there-
fore good and valid (a),
A condition may fail — Ist. B3' total loss by chance.
2nd. Partial loss by chance. 3rd. Total loss through
fault. 4th. Partial loss through fault (h).
llesolutive condition has for effect to replace things
in the same condition as they were in before. If the
object of the contract is injured, pendente conditioner
the one who is about to acquire it must suffer the loss,
provided there is no fault on the part of the other.
All synallacimatical (or double acting) contracts, (such
as sale, that produces two-fold obligations), include
a tacit resolutive condition. It, however, does not
exist de plein droit y it must be proved, while ordinary
resolutive conditions d take place by mere force of
law, de }}lein droit ic).
Section IL — Obligations with a term.
** A term differs from a suspensive condition inas-
much as it does not suspend the obligation, but only
delays the execution of it" {d).
It cannot be exacted before the term, but if paid
voluntarily before it, without error or fraud, it cannot
(a) Idem, No. 1208,
(/>) Idem, No. 1207,
(c) Idem, Nos. 1211, 1212 ; M. M. Val ; Mnrcad^, art. 1183 ; Contii
Dur. vol. X. No. 91.
{d) Arta. 1089 to 1093.
i0m
LEGAL AND GRACE TERMS.
be recovered. Term is presumed to be in favour of
the debtor. He cannot claim it if he be bankrupt or
insolvent.
A term granted by a creditor to a debtor is a proof
of the former's confidence in the latter's solvency.
Consequently, if that foundation fails the term ceases
to exist {a).
When a contract is made purely and simply, nothing
suspends the existence, or the execution of the obliga-
tion. It arises the moment the contract is passed,
and is demandahle the moment it arises. When the
contract is made under suspensive condition, the exist-
ence and execution are both suspended. When the
contract is made with a term, the existence of the obli-
gation is not suspended, its execution alone is retarded,
or delayed (b).
To pay before the term, is to pay more than you
owe ; to pay more than you owe, is partly to pay what
you owe, and partly to pay what you do not owe (c).
Legal term and grace term differ ; all that destroys
the former also destroys the latter, but not vice versa (d)'
Difference between failure {faillite) and bankruptcy
{dc'comjiture). In the former case the man has merely
ceased to pay his debts. Example : A. has $5,000 of
debts ; he has $8,000 in bonds which he cannot get
(fl) Poth. Ob. 234.
{h) Mour. vol. ii. No. 1220.
(c) Mour. vol. ii. No. 1222 ; Marc. art. 1186 ; Demol. vol. ii. Noa.
633 et ()34.
{d) Idem.
I
i
i
'JUis1 1.11
P|ll
jji|j:!i!j
7a
ALTERNATIVE OBLIGATIONS.
at ; he fails to be able to meet his $5,000 of debts ;
demands time until he can get at his $8,000. In the
second case, the man's liabilities are greater than his
assets. Example : A. has $8,000 in money and cash,
but he owes $12,000. He is bankrupt (a).
Section III. — Alternative Obligations.
** The debtor in an alternative obligation is dis-
charged by giving or doing one of the two things which
form the object of the obligation ; but he cannot
compel the creditor to accept a part of one and a part
of the other " (6). For example : A. is bound to give
B. 100 bushels of oats or 100 bushels of wheat at the
end of the harvest. It may depend upon his crop
which of the two he can give, and he is discharged by
giving either ; but he cannot oblige B. to accept 50
bushels of oats and 50 bushels of wheat.
** The option belongs to the debtor unless it has
been expressly granted to the creditor " (c).
If one of the two things be illegal, etc., the obliga-
tion becomes pure and simple — also if one of the two
things perishes. If both perished the debtor is only
bound for the value of the one that remained last.
Thus, suppose that oats was 30c. per bushel, and that
(a) Mour. vol. ii. No. 1223 : see arts. C. N. 1865, 1013 and 2008.
(6) Arts. 1093 to 1100.
(c) Art. 1094.
SUMMARY A.ND EXAMPLE.
71
wheat was 80c. per bushel, and the wheat first per.
ished, the oats being the one that remained last he
is only answerable for the 30c. per bushel and vice
versa.
An alternative obligation is one whereby a party
binds himself to give or to do one of two or many
things, on condition that the execution of one frees
him from the others (a).
The two or more things must be promised disjunc-
lively y for if conjunctively there are as many different
obligations as there are objects. Thus^ 50 bushels of
oats or 50 bushels of wheat, is a disjunctive or alter-
native obligation ; while 50 bushels of oats and 50
bushels of wheat is a conjunctive and forms two obli-
gations (&).
If the debtor dies and leaves several heirs, each is
held for his share in the object that is paid (c).
En resume. 1st. If one of the two objects has
perished, the debtor is responsible for the other one.
2nd. If the two have perished, one after the other,
he is liable for the value of the last one.
3rd. If the two have perished through his fault,
and at the same time, he is liable for the one that was
the least in value.
4th. If the two have perished, at the same time, but
(a) Poth. Ob. 245. Si ita stipulatus fuero decern ant quiuque dari
spoiidcs, quinque debentur, I. 12 f. de verb. Oblig.
ib) Poth. Ob. 246.
(c) Mour. vol. ii. No 1226.
I
.^.,..
i!
f ii
72
JOINT AND SEVERAL CREDITORS.
I* 11
; iii
• ]■ .
%-
without any fault on his part, he is completely free
from the alternative obligation (a).
M. Bigot Pr^ameneu says that two things being
promised, there is an uncertainty as to which will be
transferred, therefore no ownership is transferred by
the promise, but the objects remain as the property
of the debtor and at his risk until the close of the
transaction (6).
Section IV — Joint and several Obligations.
Sub-Section I — Joint and several Creditors.
** A joint and several interest among creditors gives
to each of them singly the right of exacting the per-
formance of the whole obligation and thereupon of
discharging the debtor" (c).
The debtor, if no suit be taken, has the option of
paying to any one of the joint and several creditors.
The following is new law. "Nevertheless, if one of the
creditors release the debt, the debtor is discharged
for the part oiily of such creditor. The same rule
(a) Mour. vol. ii. No. 1231, bis.
{h} M. Larombiere, vol. ii, arts. 1193, 1194, No. 2. INIourlon
says that he cannot accept this system. His comments and rea-
sms are too long to insert here. Those who wish to read them
may turn to page 050 of his second volume, art. 1234, commenting
upon C. N. art. 1190. I may add that I think Mourion is wrong
and the above is correct as far as our lav/ goes.
(c) Arts. 1100 to 1103.
!ip
CONDITIONS NECESSARY.
73
applies to all cases in which the debt is extinguished,
otherwise than by actual payment ; subject to the
rules applicable to commercial partnerships" (^0-
The effect of this joint and several quality of the
creditors is fourfold. 1st. That each one being cre-
ditor for the whole, may demand the total of the obli-
gation. 2nd. An acknowledgment of the debt made
to one of the creditors interrupts the prescription for
the whole debt. 3rd. Payment made to one of the
creditors extinguishes the whole debt. 4th. Any one
of the creditors may free the debtor completely from
his debt {b).
The law never presumes that the claim of the cre-
ditors is joint and several. It must be proven to be
so (c).
In order thai creditors may be joint and several
there are foui . .^sary conditions : 1st. That several
persons stipulate. 2nd. That they stipulate for the
same thing. 3rd. That they stipulate with the same
person. 4th. That they stipulate each one for the
whole amount, but so that the debtor is free by paying
to any one of them (t?).
As to acts injurious to the creditors, none of them
can perform them in the name of his co-creditors (e).
(a) Art. 1101.
(h) Poth. Ob. 2u0.
(c) Mour. vol. ii. No. 1241.
(d) Idem.
{e) Idem, No. 1244 ; Marc. art. 111)9 ; Anbury et Rau, vol. iv.
sec. 298, note 11-
r.r"
74
JOINT AND SEVERAL DEBTORS.
Sub-Section II — 0/ debtors jointly and severally obliged.
Here are eighteen articles to which I call special
attention. If it can be said that any one article of
the Code is more important than any other one. most
decidedly these eighteen are, to a certain extent, the
most important, if not of the Code, at least of the
Title of Obligations (a). Iv he first place the law
that they explain is the least understood, the most of-
ten mistaken, and the most frequently applicable, of
all the civil laws. I mean by this that more difficulties
arise with regard to joint and several debtors than to
any other class of persons. At the risk of going
beyond the narrow limits which I prescribed for this
essay, I shall give the articles of the Code in full and
also ample explanation of them.
** There is a joint and several obligation on the part
of the co-debtors when they are all obliged to the same
thing, in such manner that each of them singly may
be compelled to the performance of the whole obliga-
tion, and that the performance by one discharges the
others towards the creditor" (b).
** An obligation may be joint and several although
one of the creditors be obliged differently from the
others to the performance of the same thing ; for
example, if one be obliged conditionally while the
(a) Arts. 1103 to 1121,,
(6) Art. 1103,
!i|;
"ill
C. C. L. C. ON DEBTORS, ETC.
76
the
Ifor
the
obligation of the other is pure and simple, or if one be
allowed a term which is not granted to the other" (a).
" An obligation is not presumed to be joint and
several ; it must be expressly declared to be so. This
rule does not prevail in cases where a joint and several
obligation arises of right by virtue of some provision
of law ; — nor is it applicable to commercial transac-
tions, in which the obligation is presumed to be joint
and several, except in cases otherwise regulated by
special laws" (/>)»
'* The obligation arising from the common offence
or quasi-offence of two or more persons is joint and
several" (c).
** The creditor i a joint and several obligation may
apply for payment to anyone of the co-debtors at his
option without such debtor having a right to plead the
benefit of division" (d),
*' Legal proceedings taken against one of the co-
debtors do not prevent the creditor from taking
similar proceedings against the others" (e),
** If the thing due have perished or can no longer
be delivered, through the fault of one or more of the
joint and several debtors, or after he or they have
been put in default, the other co-debtors are not dis-
charged from the obligation to pay the price of the
(a) Art. 1104.
(b) Art. 1105.
(c) Art. 1106.
(d) Art. 1107.
(f) Art. 1108.
;- ^^
76
CONFUSION OF CREDITOR AND DEBTOR.
i'l m I
r ■' 'i
thing, but the latter are not liable for damages. The
creditor can recover damages only from the co-debtors
through whose fault the thing has perished or can no
longer be delivered, and those in default" (a).
** The rules concerning the interruption of prescrip-
tion in relation to joint and several debtors are
declared in the title of Prescription'* (b).
" A demand of interest made against one of the
joint and several debtors causes interest to run against
them all" (c).
*' A joint and several debtor sued by the creditor
may plead all the exceptions which are personal to
himself as well as such as are common to all the
creditors. He cannot plead such exceptions as are
purely personal to one or more of the other co-debt-
ors" (d).
" When one of the co-debtors becomes heir or legal
representative of the creditor, or when the creditor
becomes heir or legal represent ative of one of the co-
debtors, the confusion extinguishes the joint and
several debt only for the part and portion of such
co-debtor" [e).
*' The creditor who consents to the division of the
debt with regard to one of the co-debtors, preserves
h r
(a) Art. HOD.
(b) Art. 1110.
(c) Art. 1111.
{d) Art. 1112.
{e) Art. 1113.
!'l
LTENj CONSECUTIVE YEARS.
77
bis joint and several right against the others for the
whole debt" (a).
"A creditor who receives separately the share of
one of his co-debtors, so specified in the receipt and
without reserve of his rights, renounces the joint and
several obligation with regard only to such co-debtor.
The creditor is not deemed to discharge the debtor
from his joint and several obligation when he receives
from him a sum equal to the share for which he is
bound unless the receipt specifies that it is for his
share. The rule is the same with regard to a demand
made against one of the co-debtors for his share, if
the latter have not acquiesced in the demand, or if a
judgment of condemnation have not intervened" {l>).
"The creditor who receives separately and without
reserve the share of one of the co-debtors in the
arrears or interest of the debt, loses his joint and
several right only for the arrears and interests accrued
and not for those which may in future accrue, nor for
the capital, unless the separate payment has been
continued during [ten] consecutive years" (c).
The word ten, in brackets, denotes that it is new
law — formerly, we shall see, the number of years was
difierent.
"The obligation contracted jointly and severally
towards the creditor is divided of right among the co-
(«) Art. 1114.
(h) Art. Illy.
(c) Art. IIIG.
^a^#
.0^ '^^.*i>Tv%
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
1.25
UiM21 ||25
m
I: 1^
12.0
1.8
U IIIIII.6
/.
e ^
< %^
■€rf
L-?-
i'.'
Va
^
/a
A
c^.
Lr^
%.v
*^ .>f'
^>
o
7
'/A
^
w-
W.r
^
o
y
I
II
I
I
78
LIABILITY TOWARDS CO-DEBTORS.
debtors, who among themselves are obliged each for
his own share and portion only" (a),
" The co-debtor of a joint and several debt who has
paid it in full, can only recover from the others the
share and portion of each of them, even though he be
specially subrogated in the rights of the creditor. If
one of the co-debtors be found insolvent, the loss
occasioned by his insolvency is divided by contribution
among all the others, including him who has made
the payment" (b),
**In case the creditor have renounced his joint and
several action against one of the debtors, if one or
more of the remaining co-debtors become insolvent,
the shares of those who are insolvent are made up by
contribution by all the other co-debtors, except the
one so discharged, whose part in the contribution is
borne by the creditor" (c).
'* If the matter for which the debt has been con-
tracted jointly and severally concern only one of the
co-debtors, he is liable for the whole toward his co-
debtors, who, with regard to him are considered only
as his sureties" (d).
Here then is our law, as the Code gives it upon the
question of joint and several debtors. By a glance at
the above written articles, it will be seen that the
questions arising therefrom are fraught with import-
la) Art. 1117.
(b) Art. 1118.
(c) Art. 1119.
(d) Art. 1120.
EFFECT OF ACTION BY ONE, ETC.
79
ance and may be daily called into play. We will
begin with the old law from which these principles
have been gleaned and then pass on to our modern
commentators.
An obligation is joint and several on the part of
those who contracted it, when it binds each one for
the total, in such a manner that the payment by one
frees the others. Those thus obliged are called in
'Roman \q,w correi dehendi (a) ,
One co-debtor may be bound by a simple obligation
while the others may be bound by conditional or
termal, or other species of obligations (b).
The joint and several obligation may be stipulated
in all kinds of contracts. But regularly it should be
expressed ; otherwise each one is supposed to have
contracted for himself alone (c).
When commercial partners contract any obligation
for the furtherance of their business, it is supposed
to be joint and several, even though not expressed (d).
When several contract a joint and several obligation
it is only towards the creditor that they are so bound ;
between themselves the debt is divisible (e).
The fact of a creditor taking action against one of
the co-debtors does not free the others (/).
(a) Poth. Ob. 261.
{b) Poth. Ob. 263 ; L. 9, sec. 2.
(c) Poth. Ob. 265; Papinien en loi 11, sec. 2, ff. de duob. reis ;
Just, la Novelle 99.
(d) Poth, Ob. 266 ; Ordon. du commerce de 1673 t. 4, art. 7.
{e) Poth. Ob. 264.
(/) Idem, 271 ; L. 28 cod. de fidej.
ir ii
80
EXAMPLE OF A JOINT AND SEVERAL DEBT.
For the same reason, when the object perished by
the act or fault of one of the co-debtors, or since he
was put in default, the debt is continued, not only
against him but against the other co-debtors (a).
The demand made upon one co-debtor interrupts
prescription against all the others [b).
When one of the co-debtors becomes the heir of the
creditor, the debt is not extinguished against the other
debtors, for according to an old principle that the
confusion has effect more to clear the person of the
debtor from the obligation than to extinguish the
obligation ilself. Magis ^personam debitoris eximit ab
oblifiatione,qiuhn extinguit obligationcm {c).
When there are more than two co-debtors, does
the receipt or release given to one of them and men-
tioning that it is for his share destroy the joint and
several nature of the obligation with regard to the
other co-debtors ?
I'll give an example, as the wording may not be
over clear. A. B. and C. are jointly and severally
obliged toward E. in the sum of $3,000. A. pays
$1,000 and gets a receipt from E. stating that the
$1,000 is for A.'s share ; does that destroy the joint
and several nature of B. and C.'s debt for the other
$2,000, or are they still jointly and severally bound '?
The doctors were divided upon this question. The
IIIh
(a) Potli. Ob. 273 ; ex diiobus rcis ejusdem Stichi promittcmdi,
alterius factum alteri qucque nocet.
(6) Poth. Ob. 272.
(c) Poth. Ob. 27G.
1 1 jl :i!.i; if. .,,1
L ETOILE — BACQUET POTHIER S OPINIONS.
81
ancients held to the affirmative, basing their opinion
on the law si cr editor es, Pierre de L'Etoile, surnamed
Stella, a famous professor at the University of Orleans,
was the first, according to Alciat, who held to the
negative. Bacquet, after stating that L'Etoile's
opinion seems just, affirms that the contrary was fol-
lowed au Chdtelet de Paris. Pothier adds : I think it
is an error that should be reformed (a).
When I come to our modern commentators I will
point out that the error of which Pothier speaks, has
been reformed and in our law L'Etoile's opinion is
upheld. Even under Pothier we find the following,
some three hundred and fifty numbers further on in
his works : A creditor is presumed to have remitted
tlje joint and several nature of the obligation, when
he has admitted co-debtors to pay each for his own
share (b). .
When a creditor gives a receipt to a co-debtor for
arrears of rent /or his share, does he thereby discharge
him for the future from his joint and several obliga-
tion ? No ; there is a maxim that no one is easily
presumed to give (c)»
Although a co-debtor who paid the whole amount
has neglected to receive a subrogation, yet he is not,
(a) Poth. Ob. 278.
[h) Poth. Ob. 611.
(c) Poth. Ob. 27'J ; nemo faciU prcesumitur donure ; Alciat et
Bacquet.
!!:|, .;■!
82
SUMMARY OF QUESTION.
therefore, deprived by law of his recourse against the
other co-debtors for their shares in the debt (a).
He who got a subrogation has not only a recourse
against the other co-debtors for their shares, which he
paid, but also against their sureties (b).
This closes the list of comments, from the olden
sources of law, upon this question. Be it remembered
that these are but indications ; I do not give more
than a slight sketch and a rough plan for details ; those
interested may read the works indicated in these notes.
Turn we to modern writers !
As a principle, when several persons promise the
same thing to the same person, each of them is only
fractionally liable. Such is common law ; but it is
allowed to depart therefrom (c).
En resum^: The joint and several debt unites in it-
self the following characteristics. 1st. One single
object due by several persons and by each for the
whole. 2nd. One payment freeing all the debtors.
3rd. Mandate received and given by each one of them,
to represent his co-debtors (d.)
An obligation is not presumed to be joint and
several; it must be expressly stipulated. It is only
by exception that it takes place by operation of the law
(de plein droit), and only in the following cases : 1st.
When a widow contracts a second marriage, her second
(a) Poth. Ob. 282.
{b) Poth. Ob. 281.
(c) Mour. vol. ii. No. 1215.
(d) Idem, No. 1245.
ADVANTAGES TO CREDITOR.
83
husband is jointly and severally liable, with her, for
the consequences of the tutorship imposed on him by
the family council (art. C. N. 395 and 396). 2nd.
Testamentary executors are jointly and severally liable
for the account of the moveables confided to their care
(art. 1033). 3rd. The surviving spouse and the subro-
gate tutor, in the case of art. 1442, are jointly and
severally liable for the failure of an inventory. 4th.
The several lessees of a house are jointly and severally
liable for the losses by fire (art. 1734). 5th. In case
of loan, for use, those who jointly borrow the same
object are jointl}^ and severally liable towards the
lender (art. 1887). 6th. Persons owning some busi-
ness, between them and giving it out, by mandate,
for administration, are jointly and severally liable
towards the mandatary according to the rules of man-
date (art. 2002). 7th. In matters of a commercial
nature, such as bills of exchange, promissory notes,
etc., the debt is always joint and several (arts. 22, 24,
140, 187, Code de Commerce). 8th. All parties con-
demned for the same crime or offence are jointly and
severally liable for all damages, interests, restitutions,
costs, etc., arising therefrom (art. 55, Code penale) (a).
A debt joint and several perfect, procures five advan-
tages to the creditor. It gives him the right — 1st. To
sue, for the whole, each one of the debtors. 2nd. To
interrupt prescription with regard to the whole of
them. 3rd. To put them all in default. 4th. To
I
{a) Idem, 1246.
84
demolombe's theory.
.\ . I
|h
make interest run against them all by a law suit taken
against one of them. 5th. To be able to ask the value
of the object, lost through the fault of one of them {a).
It happens often that several persons are jointly
and severally liable although they be not co-debtors.
It is the debt joint and sexeralimperfect (b). (I cannot
find any other translation for the French expression,
although this fails to convey the meaning of solidarite
parfaite, et solidarity imparfaite. Having no English
noun to represent solidarity, I must make a circumlo-
cution). Mourlon gives several pages on this. Thus,
he says, ** several persons may be held jointly and
severally liable, without, however, being real co-
debtors." A similar distinction exists already in the
old Koman law, says Mr. Demangeat, op. cit. p. 172
etc. (c). But Mr. Demolombe does not admit that in
modern French law there exists such a thing as soli-
darity imparfaite, or as I have to translate it, a debt
joint, and several imperfect. ** Our theo y," says he,
** is that there are not two kinds of joint and several
debts, the one perfect and the other imperfect ; but that
there is only one kind, which arises from the law," arid
the learned jurist developes this theory with great
vigour (vol. iii. Nos. 273, etc.). I find our law follows
Demolombe's theory {d).
ill
w
(a) Idem, 1248; Marc. vol. iv No. 593 ; Bug. sur Poth. vol. ii. p.
127.
(6) Mour. vol. ii. No. 1249.
(c) Demangeat op. cit., p. 172 et suiv.
(d) Demol. vol. iii. No. 273 et suiv.
|ll|I!l!W>n ill
OF RELATIVE DISCHARGE.
85
L.rid
[eat
)\VS
ii- P-
Let us see the exceptions that a joint and several
debtor may oppose to the creditor taking action against
him. I mean by exception all means proper to combat
or defeat the plaintiff. The Code denotes three kinds :
1st. Exceptions resulting from the nature of the obli-
gation. 2nd. Exceptions personal to one of the co-
debtors. 3rd. Common exceptions (a).
The discharge of the debt is absolute when — 1st, The
creditor expressly declared it. 2nd. When he gave
over his titles to one of the debtors, for when he
renounces all means of proof he must naturally have
renounced the claim. The discharge of the debt may
be absolute or relative ; it is absolute when the creditor
renounces in favour of all the debtors, and is relative
when he renounces in favour of only one (b).
There are two dispositions, taken from the same
Code NapoUon, each the opposite of the other. How
comes it they both exist? Because the codifiers
gleaned their laws from two very different sources. The
first comes from the subtile and strict doctrine of accep-
tilation romainej while the second comes from the legis-
lation of the Praetors on the pacte de remise. (There
are no English expressions for those old terms), (c).
The relative discharge may be expressed or tacit.
It is tacit — 1st. W ^n the creditor receiving a part
payment gives a discharge in the following terms : —
(a) Mour. vol. ii. N, \9,ei.
{h) Mour. vol. ii. No. 1270.
(c) Idem. No. 1272 ; Val. Bug. sur Poth. vol. ii. p. 121 ; Demol.
vol. iii. ^. 460.
86
ACTIONS OF THE DEBTOR.
, ■ I'.
" I have received, from such a one, ihe sum of ,
for his share in the debt." 2nd. When the creditor
has sued one of the debtors for his share, and the
debtor has acquiesced to that amount : or when on
the same demand a judgment has intervened. The
debtor who paid the whole debt has a recourse against
the other co-debtors for their portions in the debt (a).
The actions whereby the debtor who has paid the
full claim, has a recourse against the co-debtors for
their shares, are — Ist. A personal action — that of
mandate. 2nd. The creditor's own action, with all
its accessories, privileges, hypothecs, etc. The latter
action he has in virtue of a legal subrogation in the
rights of the creditor, taken from the principles of
article 1251 (b).
Article 1213 C. N. says : *' The joir"" and several
obligation contracted towards the creditor, is divided
by force of law, between all the debtors, who are
liable towards each other only each for his part or
portion " (c).
Extinction by compensation, confusion, etc. The
authorities are so numerous, the opinions so various,
the distinctions so fine, that our space will not permit
of any further remarks upon this subject. However,
see, for example, Vallette, Demangeat, Demolombe,
(a) Mour. vol. ii. No. 1274.
{b) Idem, No. 1280.
(c) Idevi, art. C. N. 1213.
DIVISIBLE AND INDIVISIBLE OBLIGATIONS.
87
on one side ; Durant, Marcadd, Aubry and Eau on
the other.
It will be noticed I give, in each section, first our
own law — then I commence with the Komans and
trace the principles on down to the most modern
French authorities.
Section V. — Divisible and Indivisible Obligations.
** An obligation is divisible when it has for its object
a thing which in its delivery or performance is sus-
ceptible of division either materially or intellect-
ually" (a).
The divisibilitv is not between the debtor and
creditor, but between the heirs or legal represen-
tatives of one or the other. For example — A. owes B.
|1,000. The obhgation is indivisible as far as they
go ; but B. dies, and leaves two heirs, C. and E. The
obligation becomes divisible, for A. must pay $500 to
C. and $500 to E., or should it be A. that died, leaving
heirs, G. and H., each of them owe $500 to B. The
obligation becomes divisible. But in case of A. dying
the obligation remains indivisible in the three follow-
ing cases :
1st. When the object of the obligation is a certain
specific thing of which one of them is in possession.
(a) Arts. 1121 to 1131.
88
HEIRS AND LEGAL REPRESENTATIVES.
2nd. When one of them alone is charged by the
title with the performance of the obligation.
3rd. When it results either from the nature of the
contract or of the thing which is the object of it, or
from the end proposed by it, that the intention of the
contracting parties was that the obligation should not
be performed in parts (a). — [In the lirst case, he who
possesses the thing due, —in the second case, he who
is alone charged, — ai ' in the third case, each of the
co-heirs or legal representatives may be sued for the
whole thing due ; saving in all cases the recourse of
the one sued against the others]. What is between
brackets is new law, established by our codifiers.
"An obligation is indivisible — 1st. When it has
for its object something which by its nature is not
susceptible of division, either materially or xatellect-
ually ; " a horse for example. '* 2nd. When, although
the object of the obligation is divisible by its nature,
yet from the contract, this object becomes insuscepti-
ble, not only of performance in parts but also of
division" (h).
Stipulation of joint and several liabilities does not
give the obligation the character of indivisibility ; each
one of those who contracted an indivisible obligation
is held for the whole, although they did not contract
jointly and severally. The same for heirs and legal
representatives. Damages from the non-performance
(a) Art. 1123.
' (6) Art. 1121.
1
JH '
' ''' i'lffin
H:i
'''- 'i liH
m
I'lflwl
INTELT.ECTUAL DIVISION SUFFICIENT.
69
of an indivisible obligation constitutes a divisible obii-
J1-,
gation ; except it be caused by fault of one of ' le co-
heirs, when he is held indivisibly.
** Each co-heir or legal representative of the creditor
may exact in full the execution of an indivisible
obligation. He cannot alone release the whole of the
debt, or receive the value instead of the thing
itself * * * * " (a).
An heir sued for the fulfilment of an indivisible
obligation may demand time to call in the other co-
heirs, unless the debt be of such a nature that it can
be performed only by one.
This distinction of obligations into divisible and
indivisible being of very ancient origin we find much
written upon the subject by the Komans and old
French writers.
It is sufficient to make an obligation divisible that it
be susceptible of division {h).
If the object be susceptible of intellectual division it
suffices. Such is the result of the law 9. sec. 1. f. de
salut, where it says : Qui Stichum debet, parte Stichi
data, in reliquam partem tenetur. According to this
text the obligation to give the slave Stichus, is divisi-
ble, for it can be fulfilled in part although the slave
cannot be divided (c).
Where the testator leaves a sum to build an hospital
the obligation is divisible, because the object is money.
(a) Art. 1129.
(&) Molin. Trac. de div. et indiv. p. 3, N. 7 ; Poth Ob. 288, 289.
(c) Molin. ibid. p. 1, N. 5, p. 2, 200 et 201.
90
DEMAND ON EACH HEIR NECESSARY.
\M '''''
ilii
But if it says, in the will, to build in a certain place and
to expend only a certain amount, then it is indivi-
sible (a).
The obligation to perform a certain work (job), is
indivisible — but not with that absolute indivisibility
that Dumoulin calls ** indivisibility contractu,'' merely
the simple indivisibility of the obligation (6).
The principle that an heir is not answerable for the
insolvency of his co-heirs admi 3 of exceptions.
Dumoulin points out one case where a father has two
sons as heirs. One squanders all his share before
hand, and when the succession falls the other is
rendered insolvent thereby. He is held responsible
for his brother's insolvency (c).
In all cases, however, the creditor cannot put the
heirs of his debtor in default without making a
demand on each of them {d).
When a testator leaves several kinds of heirs they
are not all liable in the same manner. When the
object has perished through the act or fault of several
of the co-heirs, they are jointly and severally liable
therefor (e).
Bat if each had by a special act of his own lost
(a) Loi 11, sec. 23 ; Dumoulin, p. 2, No. 368 ; Poth. Ob. 299.
(b) Poth. Ob. 298.
(c) Poth. Ob. 311.
(d) Poth. Ob. 317.
(e) Poth. Ob. 302.
OBJECTS SPECIFIC AND OTHERWISE.
91
a special part of the object, he would be held separately
therefor (a).
The convention that the debt should not be payabl©
in parts prevents the heirs of the debtor from paying
in parts ; but does not prevent it from being suscep-
tible of payment in parts to the heirs of the cred-
itor (6).
If the contract mentions two places of payment and
uses a disjunctive, it is optional to pay in either ; but
if a conjunctive, it is part payable in one and part in
another (c).
As a rule a debt cannot be paid to any one except
the creditor, except with his consent (rf). ■
There is a distinction between an object individuum
contractu et ohligatione : the former includes the latter.
The former is the obligation of a thing, by its nature,
indivisible ; the latter is the obligation of a thing that*
inasmuch as object of that obligation, is indivisible (e).
When the debt consists of several specific objects,
the debt falls upon the debtor for part of each ; not
so when the objects are indeterminate (/).
If you left a library as deposit, although it be divi-
(a) Dumoulin, qui peccavit ex eo relevarl debet, quod peccati hahet
consortem; Marcellus in law, 22, flf. deposit.
{!)) Poth. Ob. 315.
(c) Poth. Ob. 241.
(rf) Poth. Ob. 242.
(e) Poth. Ob. 293.
(./■) Poth Ob. 322 ; lunnero dividitur obligatio, lex. 54, ff. deverb.
oblig. ; Dumoulin p. 2, No. 222.
92
DEBTOR HEIR TO HALF CLAIM.
sible, yet your heirs, or any one of them is liable for
the whole (a).
Any of chem through whose act or fault the object
has perished, is liable for the whole (/>).
From the principle, "it is one thing to give all (or
the whole), and another thing to wholly give it."
Aliud est dehere totum, aliiid est dehere totaliter, it follows
that an indivisible obligation ceases not to be subject
to reduction (or retrenchment) (c).
When the obligation is indivisible, each heir of the
creditor, being creditor for the whole object, it results
that each of the heirs may demand the whole object
from the debtor (d).
From the fact, that an heir to part of a claim that
is indivisible, althoupjh creditor for the whole object,
is not creditor for it ivholly {totaliter), it follows that
he cannot release the debt entirely, as he could Wv ce
he joint and several creditor () Pofch. Ob. 341 ; lex 97, ./f. de verb obli-j ; Paul on the law, 12G,
sec. 3 ; Dectractd priuid stipulatione, prior ineniet utilis.
(c) Potb. Ob. 342.
{d) Potb. Ob. 3-44.
(e) Potb. Ob. 345.
(/) Potb. Ob. 355 et 35G; Paul, lex. 85, sec. 3,/. d. tit ; Cato, lex
4, sec. 1, //'. d. verb oblifj.
CATO S THEORY AND EXAMPLE.
97
When the obligation contracted under penal clause
is of an indivisible thing, the contravention thereof by
one of the heirs of the debtor leaver, not only him,
but all the other co-heirs open to the penalty ; save
their recourse against each other (a).
All said about heirs to a debtor, refers to all joint
and several debtors (b).
When the original obligation, under penal clause,
has for its object a divisible fact, Cato seems to decide
that the one, of the heirs of the debtor, who failed in
the obligation, is alone liable for the penalty as far as
his share goes (c).
Cato says that the heir who breaks the obligation,
while the others are ready to fulfil it, is bound towards
the creditor only for his own share of the penalty,
but is also bound towards the other co-heirs or co-
debtors for their shares of the penalty {d).
I'll give an example here of Cato's theory. A., B.
and C. are bound to build a house for H. If it is not
completed in three months they are bound to the
penalty of $300. B. and C. wish to finish the house
in time, but A. prevents them. If the house is not
completed at the expiration of the three months, A.
(a) Poth. Ob. 306 ; Molin, p. 3, Nos. 439 et 440 ; Paul, lex. 17,
sec. 2, commod.
(b) Poth. Ob. 369.
(c) Poth. Ob. 360; Cato si de to cautum sit quod divisionem
recipiat, veluti amplius non agi, eum hceredem qui adversus ea facit,
pro portione sud soWin panam committere. Cujas and Dumoulin are
of the same opinion.
(d) Poth. Ob. 361.
8
98
MOURLON S OPINION ON PENALTY.
is only bound towards H. for his own share of the
penalty, $100 ; but he is bound to\Yard B. and C. for
their respective shares in the penalty — that is $100 to
each cf them.
Mourlon calls the penal clause a forfeit. Is the
penalty suffered, for the whole, by each of the co-
heirs when only one is in fault ? Pothier and the
Code Napoleon distinguish two cases — 1st. When the
principal obligation is indivisible. 2nd When it is
divisible.
1st. The penalty (these are the words of the Code
Napoleon) is incurred by the contravention of one of
the heirs of the debtor, and may be demanded icholly
off him, or else off each of the other co-heirs, each for
his share and portion, save their recourse against the
party in fault. Mourlon says this is borrowed from
Pothier, and he criticises it very severely. [I think
Mourlon is a little, if not very much astray. As is
seen by the foregoing that Pothier drew this principle
from Cato, the greatest of Eoman authorities, and
has sanctioned it himself, as has likewise Dumoulin.
The Code Napoleon, article 1232, reproduces it ;
Marcad^ and Demolombe sanction its adoption in the
Code Napoleon, and our Civil Code of Lower Canada
reproduces it again, word for word, in article 1136.
Consequently, I think Mourlon stands alone in this
case, and exact as he is in general and great authority
as he may be, I cannot see how his opinion could for
a moment be entertained, when it appears alone
PENALTY WHEN OBLIGATION IS DIVISIBLE.
99
Lnada
lority
lalone
against such an array of authorities, from Cato to our
own Code.]
2nd. The penalty is only undergone by the heir of
the debtor who contravened the obligation, and only
for his share (a).
(a) C. N. 1226 to 1234 ; Mourlon, 1302 to 130G ; Marc. art. 1220
to 1234 ; Demol. vol. iii. No. 700.
nmK
.s is
fciple
and
)ulin.
Ik
w
100
OF EXTINCTION OF OBLIGATIONS.
CHAPTER XI.
EXTINCTION OF OBLIGATIONS.
if«
M'S:: :!<
Section I. — General Provisions.
" An obligation becomes extinct : by payment, by
novation, by release, by compensation, by confusion,
by the performance of it becoming impossible, by
judgment of nullity or rescission, by the effect of the
resolutive condition, which has been explained in the
preceding chapter, by prescription, by the expiration
of the time limited by law or by the parties for its
r'uration, by the death of the creditor or debtor in
certain cases, by special causes applicable to particu-
lar contracts, which are explained under their
respective heads " (a).
The Code Napoleon, article 1234, contains the very
same as the above. Speaking of the resolutive con-
dition, Mourlon seems to think that it should not be
ranged amongst the modes of extinction of obligations ;
he says it is both productive and extinctive of obliga-
tions, according as it exists after or before the execu-
tion of the contract which it modifies {b). (I cannot
(a) Art. 1138.
(6) Mour. vol. ii. No. 1306, sec. 2.
mmm
REMARKS IN PARENTHESIS.
101
again agree with him, for an article of his own Code,
(1603), proves that in all cases, whether before or after^
the resolutive condition extinguishes the obligation of
garantie. See our Code, Art. 1491. The seller has
two obligations ; ** 1st, the delivery; and 2nd, the war-
ranty of the thing sold." Suppose then the case given
by Mourlon (page 686). A. sells B. a horse for $100,
upon resolutive condition. The condition is fulfilled,
and A. is thereby obliged to refund the $100, and B.
to give back the horse. Mourlon argues that the
resolutive condition gives birth to two new obligations
but does not extinguish any old one. But does it not
extinguish A.'s old obligation of warranty ? Here
again does Mourlon run foul of tho two Codes and of
legal logic. I might as well say that prescription
could not be a mode of extinction of obligations, be-
cause it is a mode of creation of obligations. We must
remember that prescription is a double-acting machine
— une ^p/e a deux tranchants. ** It is (says our Code at
Art. 2183) a means of acquiring or of being discharged
by lapse of time." It is positive and extinctive both.
Might I n^ ^ then as well say that prescription cannot
be a mode of extinction of obligations, as for Mourlon
to say that the resolutive condition should not be
classed amongst those means of extinction ?
While I am thus in parenthesis, let me remark that
payment y the subject of the next section, deserves a
most special attention. It is the most usual and
most frequently disputed mode of extinction of obli-
gations).
1 ■!■{;
I nil
I'i 'I
102
EXTINCTION BY PAYMENT.
'■
:!!' ■ 111
Section II — Payment.
Sub-Section I — Oeneral provisions.
** By payment is meant not only the delivery of a
sum of money in satisfaction of an obligation, but the
• performance of anything to which the parties are
respectively obliged" (a).
Payment presupposes a debt, otherwise it may be
recovered. It may be made by any one, even a stran-
ger. "If the obligation be*to do something which
the creditor has an interest in having done by the
debtor himself, the obligation cannot be periormed by
a stranger to it without the consent of the creditor"
(6). For example : A. hires B. to build his house, un-
less A. consents, B. cannot get E. to do it. A. may
have a confidence in B. that he has not in E.
The payor must have a legal right to the thing he
pays,. If money or something consumable, it cannot
be recovered from the payee who has used it. Pay-
ment must be to the creditor or some one authorized
by him, or by law to receive it. If made in good
faith to an ostensible creditor, is valid. If made to
one incapable of receiving by law, it is not valid, unless
the debtor proves that it turned to the creditor's
benefit. Payment made to the prejudice of a seizure
is not valid against the seizing creditor, and the
(a) Arta. 1139 to 1154.
(6) Art. 1142.
THE CODE ON PAYMENT.
103
debtor may be forced to pay it again — with recourse
against the creditor bo paid. The creditor cannot be
compelled to receive anything other than the thing
due to him.
" A debtor cannot compel his creditor to receive
payment for his debt in parts, even if the debt be
divisible. [Nor can the court in any case by its judg-
ment order a debt actually payable to bo paid by
instalments without the consent of the creditorj " (a).
The part in brackets is new law.
Debtor of a specific thing is discharged by the
delivery of it in the condition in which it is at the time
of payment, unless through his fault it became dete-
riorated.
*'Ifthe object of the obligation be a thing deter-
mined in kind oniy, the debtor cannot be required to
give a thing of the best quality, nor can he offer in
discharge one of the worst. The thing mubt be of a
merchantable quality" (b).
Payment must be made at the place indicated. If
no place mentioned and the object be a specific thing,
it must be made where the thing was at time of con-
tracting the obligation. lu all cases it must be made
at the domicile of the debtor, subject to rules in con-
tracts.
' The expenses attending payment are at the charge
of the debtoi <^c).
(a) Art. 1149.
(6) Art. 1151.
(c) Art. 1153.
I ,;i
II
r'.!!
104
A QUESTIONABLE ARTICLE.
Such are, in full, the principles of our Code upon
the general provisions of payment ; now we turn to
comments and explanations.
Payment is the accomplishment of what we are
obliged to give or to do. If voluntarily made it can-
not be recalled, but it is redeemable when made in
error (a). -
No matter who makes the payment, the obligation
is extinguished (6).
Can a complete stranger to the obligation, one who
has no interest in it, compel the creditor to accept
payment? Not if the payment be the doing of some-
thing which the creditor has an interest in having
done by the debtor himself (c).
Payment is null if the payor does not own the ob-
ject, or if he has no right to give it. A sum of money
spent in good faith, by the creditor, he having received
it from one who had no right to it, makes the payment
good {(i),
(I don't believe this principle, nor do I tnink our
article 1143 really reproduces it. If it does, our
article requires another clause. When I come to the
modern commentators and have given their opinions,
I shall explain why I think this to be unjust).
(a) Poth. Ob. 494, 195, 218.
(b) Caius in legem 53, ff. de solut ; Poth. Ob. 499.
(c) Poth. Ob. 500.
(d) Poth. Ob. 495, 497, 498 ; nemo plus juris in alium transferre
potest qmhn ipse habet, L. 54, ff. de reg juris.
EVERY PAYMENT SUPPOSES A DEBT.
105
Payment of a thing is only made by transfer to the
creditor of the ownership thereof (a).
Payment made to one authorized by the creditor to
receive it, is supposed to have Deen made to the credi-
tor himself (6).
Often we suppose a person to be the real creditor
when he is not ; payment then made to such a one is
valid (c).
Our article 1148, and Pothier, No. 530, are in con-
tradiction to the Novel. 4, cap. 3, that permits a debtor
to compel a creditor to receive something other than
what isdue him.
In the broad sense payment is the extinction of an
obligation ; in the narrower acceptation it is the accom-
plishment of an obligation. " Every payment
supposes a debt," is a phrase that has a two-fold
importance — 1st. The payment is null if the debt it
was supposed to clear did not exist. 2nd. By the fact
of a payment the debt is presumed to have been a real
one, unless proof to the contrary be forthcoming {d).
Every payment supposes a debt, therefore what has
been paid for a debt that did not exist may be reco-
vered — all paid that is not due may be recovered (e).
(a) Non videntur data quae co tempore qiLO dantiir accipientis non
fuint, L. 167, #. de r. juris.
(b) Poth. Ob. 60.1, 508, lex. 108 ; qttodjttssu alterius solvitur, pro eo
est quasi ipsi solutum esset.
(c) Poth. Ob. 503.
(d) Mour. vol. ii. No. 1307.
(e) M. M. Bigot Pr6an\eneu and Jaubert ; Demol. vol. iv. Nos. 29
to 31.
106
BY WHOM PAYMENT IS TO BH MADE.
i
A payment made by one who need not have made
it to one who had no right to demand it the law
declares valid. It is not considered as a donation but
as a payment. Mourlon enters into a splendid discus-
sion upon the proving that the word natiirelles should
be civiles. The article reads : *' The recovery of a pay-
ment made voluntarily is not allowed in casos of
natural obligations." Massol agrees with Mourlon,
that tbe word natural should be civil. But Demo-
lombe contradicts this pretention (a), while Aubry and
Eau support Mourlon's (^).
Were it not for want of space I would like to enter
into the question more fully. I think Mourlon is right.
See Mourlon, vol. ii. page 688 and following. When
the codifiers were casting their plans for the Code
Napoleon, it was thus they made that unfortunate
article read: "The right to recovery ceases with
regard to those debts for ivhich the one obliged might
have refused imy merit in consequence of an exception and
ivhich he paid voluntarily.'''' If this text had been
preserved the difficulty would not exist.
By whom should payment be made? 1st. Payment
made by the debtor — the debt is extinguished with all
its accessories. 2nd. Payment made by a third party
interested in the extinction of the debt — a surety for
example — it is accompanied, de plein droits with
subrogation. The third party, paying it, has two
{a) Demol. vol. iii. No. 38 and vol. iv. Nos. 41 and 42.
{b} Aubry et Ran, vol. iv. sec. 297 ; Mour. vol. ii. Nos. 1307, 1308
and above all 1309.
WHERE PAYMENT IS TO BE MADE.
107
ight
Did
)een
Lent
all
two
1308
actions for his recourse — 1st. A personal action of
mandate or gestio negotiorum. 2nd. The ordinary
creditor's action. 3rd. Paj^ment made in the name
and to the knowledge of the debtor by a third party,
stranger to the debt, that payment is not deplein droit
accompanied with subrogation. The payor has only
a simple action of negotiorum gestio. 4th. Payment
made, in Jiis own name, by a stranger to the debt,
extinguishes the debt and all its accessories ; but
the one paying has, against the debtor, merely
an action de in rem verso {a).
To whom should payment be made ? 1st. To the
creditor himself, if he is capable of receiving. 2nd.
To his mandatary. 3rd. To the possessor of the claim.
All other payments are null (6).
What must be paid ? The thing due. The creditor
cannot be forced to accept anything else, unless an
agreement is to the contrary (c).
In principle the debtor cannot force the creditor to
take part paj^ments, yet the creditor must accept them
from the heirs of the debtor.
Where should payment be made? 1st. When a
place is agreed upon, it must be there. 2nd. If no
place be agreed upon, it must be paid at the place
where the object was at the time of agreement. 3rd.
If neither of these two cases exist, it is to be made at
the debtor's place. Expenses of payment are to the
(a) Idem, No. 1316.
(b) Idem, No. 1330.
(c) Idem, 1337 to 1349.
'|i
INCOMPLETENESS OF AN ARTICLE.
debtor's charge, but the expenses of carrying away
the object are payable by the creditor (a).
Now I come to what I referred to a few pages back.
Let me just repeat Pothier and our Code. Pothier
says : ** A sum of money spent, in good faith, by the
creditor, he having received it from one who had no
right to it, makes the payment good." The fact of
spending the money in good faith makes the payment
good. Now see what the second clause of our article
1143 says : " If a sum of money or other thing of a
nature to be consumed by use be given in payment, it
cannot be reclaimed from the creditor who has used
it in good faith, although the payment have been
made by one who was not the owner nor capable of
alienating it."
Despite Pothier, the Code Napoleon (art. 1238), and
the Civil Code of Lower Canada (art. 1143), I fail to
see the justice of this law, nor do I believe it is the
law. It is incomplete. I will illustrate it by an
example, and the injustice of the dispositions will be
apparent.
A. owes B. a ton of hay. Not having a ton to give to
B. when the time for payment comes, he takes a ton
of E.'s hay and pays his debt to B. with it. B. in
good faith, believing the hay to belong to A., feeds it
out to his horses and they consume it. The law as
above says that it cannot be reclaimed from B. That
is the case in our Code. Then is E. to lose his ton of
(a) Idem, No. 1352. See Marcale and Colmet d'Aage and Bonnier
on this.
PAYMENT WITH SUBR0G4fflON.
109
hay, and A. to profit thereby to clear his debt, and still
E. to have no recourse ? Says Mourlon, on this, "Our
article 1238 does not regulate the relations between
the creditor who received and the person to whom the
thing belonged. We must turn to the common law
for the decision." And the common law regulates
that E. can get it back, or the value of it from A. or
B. I think these articles both of our Code and the
Code Napoleon should contain another clause regula-
ting this point.
Permit me an example upon Pothier's statement.
A. is a minor, with no right to dispose of his money.
B. owes E. a debt of $100 and A. pays it for him.
A. had no right to spend the $100, but E. in good
faith got rid of the money. Now, according to Pothier,
the fact of E. being in good faith when he spent the
money, makes the payment valid. At once you can
see the fallacy of the presumption. How can an
action, howsoever good or bad the faith of the actor
may be, render valid what is radically null ? The
payment being null ab initioy there is no fiction of law
that can make it exist. It would be to draw some-
thing from nothing ; to make a dead being revive.
Sub-Section II. — Payment with Subrogation (a).
The Code does not define subrogation. It is the
substitution of a third party in the rights of a creditor
(a) Arts. 1154 to 1158.
H:''
IW:;
'3i '.
110
OF CONVENTIONAL 8TBR0GATI0N.
against a debtor whose debt that third party has paid.
It is either conventional 0/ legal. It is necessary to
give the two principal articles in full.
** Subrogation is conventional : 1st. When the credi-
tor, on receiving payment from a third person, subro-
gates him in all his rights against the debtor. This
subrogation must be express and made at the same
time as the payment. 2nd. When the debtor borrows
a sum for the purpose of paying his debt, and of
subrogating the lender in the rights of the creditor.
It is necessary to the validity of the subrogation in
this case, that the act of loan and the acquittance be
notarial, [or be executed before two subscribing wit-
nesses ;j that in the act of loan it be declared that
the sum has been borrowed for the purpose of paying
the debt, and that in the acquittance it be declared
that the payment has been made with the moneys
furnished by the new creditor for that purpose. This
subrogation takes place without the consent of the
creditor. [If the act of loan and the acquittance be
executed before witnesses, the subrogation takes effect
against third persons from the date only of their
registration, which is to be made in the manner and
according to the rules provided by the law for the
registration of hypothecs] " (a).
" Subrogation takes place by the sole operation of
law and without demand — 1st. In favour of a creditor
who pays another creditor whose claim is preferable
(a) Art. 1155.
SSB^^BSHIB
asR
PRINCIPLE OF JULIAN.
Ill
to Ilia by reason of privilege or hypothec. 2ncl. [In
favour of a purchaser of immoveable property who
pays a creditor to whom the property is hypothecated.
8rd. In favour of a party who pays a debt for which
he is held with others, or for others, and has an
interest in paying it]. 4th. In favour of a beneficiary
heir who pays a debt of the succession with his own
moneys. 5th. When a rent or debt due by one consort
alone has been redeemed or paid with the moneys of
the community ; in this case the other consort is sub-
rogated in the rights of the creditor according to the
share of such consort in the community " (a).
These subrogations have effect against sureties. It
cannot prejudice the remaining rights of the creditor
when he has received only part payment.
Dumoulin and Pothier are at war upon the question
of tacit subrogation. We have not space to enter
into their quarrel, but our article 1156 settles the
question as far as we have an interest direct in it.
Whosoever pays a debt for another has a right, in
paying, to get the action of the creditor against the
debtor. Upon this principle Julian goes when refer-
ring to the rights of the Jicyjusseiir (b).
Payment extinguishes a debt, but subrogation
transfers it to another. Here are two very incompat-
(a) Art. 1156.
(6) Poth. Ob. 556 ; Fedejussoribus succurri solet, y.t stipulator com-
pellator ei qui soliclum solvere paratus est rendere cceteronwi nomina ;
1. 17, ff.fidejus.
■"! 'I
in'' (
,1 '
112
DEFINITION OF SUBROGATION.
>.: I
lIMIl
i^ll
ible ideas. The Komans perceived them, but were
not stopped by the seeming contradiction ; they settled
the affair by their old and ordinary means when in
a corner, that is by Vi, fiction of law. The creditor is
presumed to have sold his claim to the one subrogated,
"who is supposed to have purchased it {a).
Pothier says subrogation is 2i fiction of law by means
of which a creditor is supposed to cede his rights to a
third party who has paid him.
The party subrogated may invoke it against — 1st.
The debtor, in order to have against him all the means
that comprise the paid debt, such as a penal clause,
etc. 2nd. Against the debtor's creditors, to exclude
them by opposing to them the privileges, etc., obtained.
3rd. Against the sureties. Our art. 1157, C. C. L. C,
mentions this also, because it was not admitted by
the Eoman jurists. 4th. Against third parties holding
the hypothecated immoveables thus bound for the
payment of the debt {b).
According to this system we may define a subroga-
tion as follows : A fictive cession, in consequence of
which a claim extinguished by means of a payment
with the money of a third party is looked upon as
continuing to exist to the benefit of the latter, who
(a) Mour. vol. ii. No. 1354; C. N. 1249: won in solutum accepit,
sed quodammodo nomen debitoris vendidit (Paul. L. 36, D. de fidej.) :
won est vera cessio, says Benusson, ted cessio fictiva,
(ft) Mour. vol. ii. No. 1359
MERLIN AND GRAPPE S DOCTRINE.
113
ere
;led
L in
r is
ted,
3an8
to a
-1st.
leans
ause,
elude
.ined.
lJ. C,
jd by
ilding
the
(roga-
^ce of
[ment
)n as
who
iccepit,
Ifidej.) :
may exercise it to recover thereby what it coat him to
free the debtor (a),
M. M. Merlin and Grappe, whose doctrine was
reproduced by M. Bugnet and also by Marcade,
teach another system. With them subrogation is
" the attachment, conventional or legal, of the acces-
sories, privileges, hypothecs and sureties, of the old
claim extinguished by payment with the money of a
third party, to a new claim arising from the payment
or loan that procured to the debtor the means whereby
to free himself" {h).
In the first system, the subrogation transfers to the
one subrogated the claim and all its accessories,
privileges, etc. In the second system, it detaches the
accessories of the old claim that payment has extin-
guished, and attaches them to the new claim arising
therefrom. We must reject the latter system as
contrary to — 1st. The authority of history, (see ordon-
nance of 1609). 2nd. To the terms of the law in
the Code. 3rd. To the end which the law had in
view in organizing the system of subrogation (c).
All subrogations come from the law {d). Subroga-
tion consented to by the creditor should be express
and made at the time of payment. Thus two e) Mour. vol. ii. No. 1360.
(c) Idem, No. 1361.
{(l) Idem, No. Ioo5.
9
J I 111!
u
IM- .il
114
OF SUBROGATION AS AN EXCEPTION.
I '
ditions — 1st. Express declaration of subrogation. 2nd.
Payment and subrogation to be simultaneous (a).
Subrogation consented by the debtor to the benefit
of a third party who lent him the means to pay the
debt. It must — 1st. Have the acts establishing the
loan and payment, both in notarial form. 2nd. It
must be mentioned in the act of loan, that the money
is borrowed to pay the claim ; and in the act of pay-
ment that it is made with money so borrowed. Eead
the note to this particularly ; it has an historical
interest (h).
Subrogation from sole operation of the law is an
exception. In four cases it can arise — 1st. To the
benefit of the one who was creditor and paid the
debt to another creditor who had been preferred to
him by privilege or by hypothec. 2nd. To the benefit
of the one acquiring an immoveablf, who spent his
(a) Idem, No. 1366.
(b) Idem, No. 13G7. Subrogation by the debtor was introduced
by the Edict of 1609, under Henri IV. The origin of it is amusing.
Under Charles IX. the run of interest was 8^ per cent., while
Henri IV. reduced it to 6|. The debtors under the Charles IX.
system looked out for money lenders from whom they could get
the money at the lower rate of 6J, and pay off therewith their old
and heavy debt of 8^. But these capitalists demanded securities
that the debtors, in most part, could not furnish. The power to
transfer to the new creditor their securities (garanties) could
procure for them credit to get the new loan. But this subrogation
not being possible without the consent of the first creditors, and
they refusing that consent, made it impossible for the debtors to
take advantage of the 6J interest. Henri IV., anxious to help
them, gave them the right of subrogation without the creditors'
consent.
IMPUTATION OF PAYMENT.
116
id.
sfit
ihe
the
It
tiey
•ay-
ead
ical
} an
the
the
id to
nefit
his
own money to pay off the hypothecs that were on
it (a). 3rd. To the henefit of one who was held with
or for others in a debt, and who has an interest in
clearing it off. 4th. To the benefit of the beneficiary
heir who pays with his own money the debts of the
succession (h).
On the whole I think the simple definition that I
give at the opening of this sub-section, covers the
entire ground.
Sub-Section 111.— Imputation of Payment.
" A debtor of several debts has a right of declaring,
when he pays, what debt he means to discharge."
" A debtor of a debt that bears interest or produces
rent cannot without the consent of the creditor impute
any payment which he makes to the discharge of the
capital, in preference to the arrears of interest or of
rent. Any payment made on the capital and interest,
but which is not entire, is imputed first upon the
interest " (c). When a debtor of several debts accepts
a receipt imputing the discharge to be for a special
debt, he cannot demand that it be imputed to the
other debt. " When the receipt imputes no special
debt, it is supposed to be for the debt which the debtor
had most interest to pay. But if one of the debts be
actually payable it must be considered paid, although
(a) Mour. vol. ii. Nos. 1370, 1371, 1372 and 1373 ; Caqueray Rev.
Prat. vol. vi. p. 81.
(6) Barillet, D. L. L. Rev. Prat. p. 20, vol. xiv.
(c) Arts. 1158 to 1162.
i
116
THE CUEDITOR FORCED TO ACCEPT.
it be less burdensome than the other. If they be all
equally burdensome and equally payable, the payment
is imputed upon the oldest debt. All things being
equal it is made proportionally on each " (a).
He who is creditor of a person for different debts is
obliged to receive the payment which his debtor offers
him of one of the debts, even though he does not offer
him, at the same time, payment of the other (b).
If the different debts be of equal date, and all other
things are equal, the imputation is made proportion-
ally on eacii (c).
In debts that produce interest, the payment is im-
puted to be on the interest before the capital (d).
When the debtor makes no imputation, the creditor
may make it, in the receipt, provided it be made then
and there and be equitable (l^on is
)resseci,
of Du-
evident
or wbo
evident
;ains no
tor wbo
former
[ceives a
[mperfect
former
Section IV. — Of Release.
** The release of an obligation may be made either
expressly or tacitly by persons legally capable of
alienating. It is made tacitly when the creditor
voluntarily surrenders to his debtor the original title
of the obligation, unless there is proof of a contrary
intention." ** The surrender of a thing given in pledge
does not create a presumption of the release of the
debt for which it was pledged " (a). The surrender of
the title to a joint and several debtor avails his
co-debtors. An express release to one of the joint and
several debtors does not discharge the others. If
granted to a principal debtor it discharges the sure-
ties, but not vice versa. Nor if granted to one surety
does it discharge the others. °
Ne2V Law. — [''That which the creditor receives
from a surety as a consideration for releasing him
from his suretyship is not imputed in discharge of the
principal debtor, or of the other sureties, except as
regards the latter, in cases in which they have a
recourse upon the one released, and to the extent of
such recourse"] {h).
The release of the debt may be made, not only by
a special express convention ; but also by a tacit
one (c).
(a) Arts. 1181 to 1187. '
(6) Art. 1186.
(c) Potb. Ob. 608 : si debitoris meo reddiderim cautionem videtur
inter no8 convenisse nepeteram ; 1. 2, sec. 1, ff. de pact.
128
A WIDELY DISPUTED QUESTION.
Does the possession of the note, by the debtor,
cause a presumption that the debt is released ?
Boiceau distinguishes between the cases where the
debtor claims to have paid the debt, and when he
claims that the debt is forgiven by the creditor. Our
Code makes no such distinction (a).
Restitution by the creditor to the debtor of the
object held in guarantee does not indicate that the
debt is forgiven ; it merely shows the creditor's con-
fidence in the debtor's solvency (b).
Real release is when the debtor declares the debt
released or gives a receipt therefor (c).
Personal release is where the creditor merely
declares the debtor free from any personal obliga-
tion (d).
Here arises a very widely disputed question. If I
receive a sum from a surety to free him, can I after-
wards demand the whole debt from the debtor ?
Dumoulin says, yes. Because I am only paid by the
surety to free him, and it is presumed that what he
pays me is not worth more to him than his freedom.
He prefers to pay so much than to risk the solvency
of the debtor. Nemo res suas jactare faciU prasumi-
(a) Poth. Ob. 609.
(&) Idem, GIO.
(c) Idem, 616.
(d.) Idem, 617. This release vuigis eximit personam dehitorit ab
obligatione qu^m extinguit obligationem.
RELEASE HEAL AND PERSONAL.
129
)tor,
ied?
the
a he
Our
f the
t the
5 con-
5 debt
nerely
pbliga-
If I
after-
htor ?
by the
hat he
edom.
Ivency
(esumi-
ntoris ah
tur, (Our Code agrees with this, but the Code Napo-
leon does not) (a).
A tutor, curator, etc., have no power to release a
debt belonging to those under their care {b).
The law 2. sec. 1 fif. de pactj presumes a debt to be
released when the creditor restores the note of hand
or other note to the debtor ; but as it is not a pre-
sumption juris et de jure, it does not exclude the
creditor from proving that the debt is not paid(c).
From th§ principle that the release is au fonds — a
gratuitous act, it results — 1st. That it can only be
done by one capable of disposing gratuitously. 2nd.
It must be made to a debtor capable of receiving by
gratuitous title. 3rd. It is restorahle if the debtor
succeeds his former creditor. 4th. It is reducible if it
exceeds the disposable amount. 5th. It is revocable
for ingratitude, or appearance of children {d),
Kelease is real when absolute, general and under
no restriction ; it is personal when it is limited to such
and such a person. Tacit release, that is the aban-
donment of the title, is always real ; for a creditor
who had no intention of releasing the debt would
naturally keep the title to it.
1st. The release of the title to one of the joint and
several debtors, frees the others. 2nd. When several
(a) Poth. Ob. 618; C. C. L. C. art. 1186: nemo res suas jactare
facile procsumitur.
{h) Poth. Ob. 619, lex 37, ff. de pact.
(c) Poth. Ob. 847.
{(l) Mour. vol. ii. No. 1422.
10
130
OF COMPENSATION.
persons contract jointly the same debt, by the same
deed, (but not jointly and severally), the release of
the title to one frees the others. 3rd. The release of
the title to one of the sureties benefits the others.
4th. Consequently the release to a debtor clears all
the sureties (a).
The Code Napoleon says that whatever a creditor
received from a surety to discharc/e him from his surety-
ship should be imputed on the debt of the principal or
the other sureties. This could be avoided by merely
omitting to mention the amount in the release. A
law so open to violation is not a good law. Our Code,
art. 1186, new law, is the contrary of this, and our
article is most reasonable {h).
Section V. — Of Compensation,
** When two persons are mutually debtor and
creditor of each other, both debts are extinguished by
r insation which takes place between them in the
.8 and manner hereinafter declared" (c).
Compensation exists by law between two debts
equally liquidated and demandable, each for a sum of
(a) Idem, No. 1432.
(6) Idem, No. 1437; Bug. sur Poth. vol. ii. p. 330; C. C. L. C.
1186.
(c) Arts. 1187 to 1198.
CODE ON COMPENSATION.
131
ame
,e of
36 of
lers.
'8 all
ditor
irety-
pal or
lerely
e. A
Code,
d our
and
|hed by
in the
debts
Isum of
C.L. C.
money, or equal quantity of a determined thing, and
from the moment of their co-existence. ** It is not
prevented by a term granted by indulgence for the
payment of one of the debts."
" Compensation takes place whatever be the cause
or consideration of the debts or of either of them,
except in the following cases — 1st. The demand in
restitution of a thing of which the owner has been
unjustly deprived. 2nd. The demand in restitution
of a deposit. 3rd. A debt which has for object an
alimentary provision not liable to seizure " {a).
The surety may avail himself of compensation when
the creditor owes the principal debtor. But the debtor
cannot claim it for tiie debt his creditor owes the
surety. A joint and several debtor cannot set up the
debt the creditor owes his co-debtor. Debtor cannot
set up against the assignee the compensation he
could have set up against the assignor. When two
debts are payable at different places, compensation
cannot be set up unless the expenses of remittance be
paid. When compensation by law is prevented by
any cause, the party in whose favour it is prevented
may demand it by exception. When there are several
debts the rules of imputation of payment apply.
" Compensation does not take place to the pre-
judice of the rights acquired by third parties " (b),
** He who pays a debt which is of right extinguished
by compensation cannot afterwards, in enforcing the
(a) Art. 1190.
(6) Art. 1196.
I' '->■'■■
•i
182
DIFFERENT COMMENTARIES.
debt which he has failed to set up in compensation,
avail himself, to the prejudice of third parties, of the
privileges and hypothecs attached to such debt, unless
there were just grounds for his ignorance of its exist-
ence at the time of payment " (a).
Compensation is known in Ontario and elsewhere
by the more familiar term of — Off-set,
Compensat'on is the extinction of two debts con-
tracted between two parties reciprocally and co-
existant {b).
Pomponius shows how it is a mutual interest to
compensate (c). -
A creditor is obliged to compensate to the amount
of his debtor's claim, even though it be less than his
own claim (d).
Compensation may be opposed in all cases wherein
the objects are susceptible thereof. For example, a sum
of money, or other divisible objects, as hay, oats, wine,
etc. {e).
The two objects must be of the same kind (/).
The debt opposed in compensation must be due (//).
(a) Art. 1197.
(6) Poth. Ob. 623 : Compensatio est dehiti et crecUti inter se contri-
hutio : 1. i, fP. de compens.
(c) Pomponius shows it to be a mutual interest.
\d) Poth. Ob. 538.
(e) Idem, 624.
{/) Idem, 626: Compensatio debitl ex pari specie, licet ex caiisd
dispari, admittitur; Paul. sent. ii. v. 3.
(<;) Poth. Ob. 627: Quod in diem debctur, nan compensabitiir anti-
quam dies veniat; 1. 7, ff. de compens.
THE NECESSARY CONDITIONS.
133
The debt must be demandable ; a contested debt
cannot be the object of compensation (a).
It takes place deplein droit, that is by law solely
without necebsity of being expressed (h).
Payment made by one debtor frees the other. I
have two debtors, John and Thomas. They owe me
§1,000. I become John's debtor for $1,000. Does
Thomas' debt to me become compensated ? Papinien
say, no; Domat says, yes (c).
If my creditor for $100 becomes my debtor for $100
and I have paid him, I can recover the amount by
action, condictio indehiti (d).
Compensation is based on a motive of public use
and a motive of justice.
There are three conditions — 1st. The two debts
should have for objects sums of money, or things of
the same kind that are indeterminate. 2nd. The
two debts must be liquidated. 3rd. Be demandable.
The first condition demands no explanation. In the
second case a debt is liquidated when it is known to
be due and the amount is known ; cum certain est an
€t quantum deheatiir. In the third case there are
several points — 1st. A term of grace does not form an
obstacle to the compensation. 2nd. Debts of a debtor
who has failed, although they become demandable by
(a) Poth. Ob. 628.
(6) Idfm, 635; Placuit i^ quod invichn debetur Ipso Jure conipjn-
sari ; 1. 21, ff. de comp.
(c) Poth. Ob. 274.
(d) Idem, 639 ; Ulpiou in legem 10, sec. 1, ff. de comp.
134
THE CONSEQUENCES OF COMPENSATION.
the fact of his failure, are not allowed to compensate
debts due nim and demandable (a).
The above being the rules it follows — 1 st. That it
is not necessary that the two debts be known to the
parties. 2nd. Nor that they be of equal value. 3rd.
Nor that they be payable at the same pkce. 4th.
Nor that they spring from the same cause (b).
Though a debt springing from a sale may be com-
, pensated by one coming from a lease, etc., etc., still
there are four exceptions to this — 1st. Of a debt
whose object consists in something declared non-
subject to seizure. 2nd. The demand in restitution
of something of w' ich the owner was unjustly de-
prived. 3rd. The aemand in restitution of a deposit.
4th. The demand in restitution of a loan (c).
The principle that compensation may arise, even
without the knowledge of the parties, entails several
consequences — 1st. The incapacity of the parties is
no obstacle to compensation, 2nd. The interest
ceases to run from the moment of the co-existence of
the debt. 3rd. From that instant the accessories,
' privileges, etc., are extinguished. Can it take place
in spite of a co-debtor? (d).
(a) Mour. vol. ii. Nos. 1439 to 1444. See Traite de droit Com-
mercial, by M. M. Bravard and Demangeat, vol. v. p. 154, etc.
(6) Mour. vol. ii. No. 1444.
(c) See Marcad6, art. 1293 ; Aubry and Rau, vol. iv. sec. 327 ;
Demol. vol. v. Nos. 598, 599.
(d) In Roman law, compensation had to be pleaded. See
Mourlon, vol. ii. No. 1452.
.^^
OF CONFUSION.
135
The surety may set up compensation in favour of
the principal debtor when he neglects to do so him-
self {a).
Optional compensation is one declared by the judge
or alleged by the party. It can only be set up by the
one in whose favour the law acts. I deposit $500
with you. I subsequently become heir of a man to
whom you owe that amount. You cannot demand
compensation, because it is a debt springing from a
deposit, but I can demand it (6).
Section VI — Of Confusion,
I,
" When the qualities of the creditor and debtor are
united in the same person, there arises a confusion
which extinguishes the obligation ; nevertheless, in
certain cases when confusion ceases to exist, its
effects cease also" (c).
" The confusion which takes place by the concurrence
of the qualities of creditor and principal debtor in the
same person avails the sureties. That which takes
place by the concurrence of the qualities of surety and
(a) If possible, get this work, and read 1452, pages 771, etc.;
Aubry et Eau, vol. iv. sec. 326.
(b) Mour. vol. ii. No. 1460.
(c) Arts. 1198 to 1200.
m^
Ml
li
^,yMi!jl
136
FRAIN AND OTHERS ON CONFUSION.
creditor or of surety and principal debtor, does not
extinguish the principal obligation" (a).
Confusion takes place when the creditor becomes
heir to the debtor or vice versa (b).
It entails extinction of the sureties (c).
Extinction of debt does not follow from confusion
of the sureties (d). '
Confusion has no effect upon third parties who
have an interest in the debt, nor when there are
saveral debtors and only one becomes creditor. The
others are still liable for their shares (e).
It is revoked, when its causes cease to exist, v.g.,
a revoked will creating the debtor heir, etc.
It ceases, when by a new event its cause has disap-
peared, v,g.^ the debtor who succeeded his creditor
sells out to a third party ; the claim is only paralyzed
but not extinguished. It revives (/).
Frain, in his Recueil d' Arrets du Parlement de Bre-
tagne, in the report of 12ih January, 1621, says : A
penal obligation added to a promise for another is
valid, although we cannot validly promise for another.
Non de alio, sed de se. The example- he gives is pecu-
(a) Art. 1199.
(ft) Poth. Ob. 642 : Twn potest esse obligatio sine persond obligatd.
{c) L. 38, sec. 1, ff. de fidej. ; Poth Ob. o44.
(d) Poth. Ob. 645; 1. 71, ft. de fidejussor: si creditor ^fidejussor
jussori h(Ei'es, fuerit, vel fidejussor creditori, puto convenire confussione
obligationis, non liberari reum.
(e) Mour. vol. ii. page 775, etc.
(/) Idem, page 800.
«
-.ui,.i,ijiii.iaii
IMPOSSIBILITY OF PERFORMANCE.
187
liar. The father of a canon of the church, who had
offended the bishop of St. Malo, promised the bishop
that his son, the canon, would not show his face in
the city of St. Malo for the space of four months.
And he bound himself to pay, in case his son, the
canon, should break the agreement, the sum of £300.
The canon broke the agreement and the father was
condemned to pay the sum. Although of no interest,
strictly speaking, I may add that the canon wore a
mask and thereby did not show his face. One day the
mask fell off, and in consequence the father was pun-
ished for his trick and rash promise.
Section VII — Performance of Obligation becoming im-
possible.
** When the certain specific thing which is the object
of an obligation perishes, or the delivery of it becomes
from any other cause impossible, without any act or
fault of the debtor, and before he is in default, the
obligation is extinguished ; it is also extinguished
although the debtor be in default, if the thing would
equally have perished in the possession of the creditor ;
unless in either of the above mentioned cases the
debtor has expressly bound himself for fortuitous
events. The debtor must prove the fortuitous event
which he alleges. The destruction of a thing stolen
or the impossibility of delivering it, does not discharge
I 1'-' i!
I! ,■ |i
,::::.]i
138
THE CASE OF ALTEBNATIVE OBLIGATIONS.
him who stole the thing, or him who knowingly
received it, from the obligation to pay its value" (a).
When the performance becomes impossible, without
any fault of the debtor, he is bound to assign to the
creditor such rights of indemnity as he may possess.
** When the performance of an obligation to do has
become impossible without any act or fault of the
debtor and before he is in default, the obligation is
extinguished and both parties are liberated ; but if
the obligation be beneficially performed in part, the
creditor is bound to the extent of the benefit actually
received by him" (b).
There can be no debt without an object due ; the
extinction of that object naturally extinguishes the
debt (c).
For the same reason if the thing due becomes un-
susceptible of being the object of an obligation, the
debt becomes extinguished (d). '
An object lost so as that its discovery is not possible,
is almost the same as if it were destroyed ; there
being no fault on the debtor's part (e).
In case of alternative obligations, the loss of one
of the objects does not extinguish the debt with regard
to the other (/. )
(a) Arts. 1200 to 1202, inclusively.
(6) Art. 1202.
(c) Poth. Ob. 649 . lex. 33, 57, ff. de Verb. Oblig.
(d) Poth. Ob. 650 : Is qui alienum servum promisit, perducto ea ad
lihertatem, non tenetur ; 1. 51, ff. de Verb. Oblig.
(c) Poth. Ob. 656.
(/) Poth. Ob. 657.
NO ONE BOUND TO THE IMPOSSIBLE.
139
When the debtor, by a special clause, binds himself
for all the risks, etc., of the object, there is an excep-
tion to the rule (a).
Three cases of loss may arise — 1st. Total destruction
of the object. 2nd. Its becoming non-c 'mercial, as
the case of land taken for railway purposes. 3rd. When
so lost that its whereabouts is completely ignored, as
in the case it were stolen (6).
The robber is in default by the fact of his robbery.
When it is lost, but not through any fault of the
debtor, he is not responsible, but — 1^ '. He must give
up all its accessories and privileges. 2nd. He must
restore what is left of it, if any. 3rd. He must
transfer to the creditor all actions, etc. (c).
No one is held to the impossible. Loss of the thing
due, is too narrow a maxim, we should add, that the
arising of an event that renders the accomplishment
of the obligation impossible, is a sufficient cause of
extinction (d).
m
one
5g
ar
d
(a) Idem, 668.
(6) Mour. vol. ii. No. 1467.
(c) Idem, No. 1479.
(d) Idem, No. 1480; Aubry et Kau, vol. iv. sec. 331 ; Demol. vol.
V. No. 786. See in the Code Napoleon, arts. 1138, 1719, No. 3, 1722,
1741, and finally 1795 and 1791, and the C. C. L. C. arts. 1025,
1612, No. 3 (the words to give, should be to procure for), 1660, 1659,
and finally 1692 and 1687.
ea
ad
140
A CHAPTER ON PROOF.
i
u
II
CHAPTER XII.
ON PROOF.
Isasu,
iPi
Besides the modes of extinction of obligations that
our Code has thus far treated of, there are other
means, which I style extraordinary means of extinc-
tion. They are scattered here and there throughout
the Code, and do not come within the range of this
essay. There are still fifty-four articles, upon proof,
testimony, presumptions, admissions, oaths of parties,
decisory oath, and oath put officially, which the
codifiers have given us under the title of Obligations.
To say the least, I do not think that these subjects
should be included in this title. I fancy that proof
is of a character sufficiently distinctive to merit being
classed under a title for itself. Moreover, does it not
savour very much of Procedure ?
For these and other reasons, I have concluded not
to include in this Essay the chapter on Proof. It is
sufficiently important to demand a full Essay, even
as large as this, for itself, while the principal readers
of this sketch — that is the laymen — would find it
merely an obstacle, bringing with it too much matter
and of too varied a kind to Ve easily grasped at once.
C. C. L. C. ON PKOOF.
141
Still, I deem it not out of place to give a very general
idea of the rules that govern the Proof and Testimony
before the Courts. In the next chapter, I shall
resume all that has been said about obligations, and
in a few pages give a synopsis of the matter, in such
a way that, with the map in Chapter III. and this
synopsis, the reader shall have a compendium of the
whole, while for details he can look up the index and
find them in the body of this Essay.
** The party who claims the performance of an obli-
gation must prove it. On the other hand, he who
alleges facts in avoidance or extinction of the obliga-
tion must prove them" (a).
**" The proof produced must be the best of which the
case in its nature is susceptible. Secondary or
inferior proof cannot be received unless it is first
shown that the best or primary proof cannot be
produced" (b).
** Proof may be made by writings, by testimony, by
presumptions, by the confession of the party, or by
his oath, according to the rules declared in this
chapter, and in the manner provided in the Code of
Procedure" (c).
Thus the primary proof must be written, and until
it is shown that it cannot be obtained, other or secon-
dary proof is not admissible. There are degrees also
in the writings which may be classed amongst the
m
(a) Art. 1203.
(b) Art. 1204.
(c) Art. 1205.
I'ij
81 *
v '
M
III
K; i'
I PI >■
i;l
■II-
SJ
1%.'
i
|Sp> ^1
142
AUTHENTIC WRITINGS, ETC.
means of written proof. Firstly, we have authentic
writings. These are the very best proof. Kecords,
etc., of governments, minutes, etc., of councils (county
or municipal) ; notarial documents, signed by a notary
and all the parties. Witnesses to these, whenever
necessary, must be twenty-one years of age. But
aliens may be witnesses.
Next come copies of authentic writings ; extracts,
duly signed and attested by a prothonotary of the
Superior Court ; copies of originals, signed by the
notary who drew up the originals.
Next come official documents made outside of
Lower Canada. They make prima facie evidence,
without it being necessary to prove the authenticity
of the seal, signature, etc.
After these, private writings make best proof.
Family registers and papers do not make proof in
favour of him by whom they are written ; in case they
formally declare a payment received, or when they
express that a minute is made to supply a defect of
title. What is written by a creditor on the back of
any title or deed he holds, although he may not have
signed it, is proof against him.
Then, where there are no writings, authentic, copy,
or private, proof must be made by testimony. It was
an old maxim in Eoman law, that one witness was no
witness — testis unus, testis nullus ; but our law com-
pletely destroys it. " The testimony of one witness
OF ADMISSIONS.
143
is sufficient in all cases in which proof by testimony
is admitted" («).
*'A11 persons are legally competent to give testi-
mony, except — 1st. Persons deficient in understand-
ing, whether from immaturity of age, insanity or other
cause. 2nd. Those insensible to the religious obliga-
tions of an oath. 3rd. Those civilly dead. 4th. Those
declared infamous by law. 5th. Husband and wife, for
or against each other " (h).
Testimony cannot be given in one's own favour.
Presumptions are those which arise from law, and
those which arise from fact. As to the former, there
is no permission to contradict them by proof, unless
the law pointedly reserves that right for a party.
The authority of a final judgment (res judicata) is a
presumption juris et de jure. Presumptions not
established by law are left to the discretion of the
court.
Admissions may be judicial or extra-judicial. The
former are complete proof against the party making
them ; the latter must be proved by writing or the
oath of the party against whom they are set up.
To complete imperfect proof the court may examine
a party to the suit upon oath. Or, again, the party
may be thus examined upon interrogatories on articu-
lated facts, or by decisory oath.
The decisory oath may be offered by either of the
parties to the other. He to whom the oath is offered,
(a) Art. 1230.
(b) Art. 1231.
I V
II:
It
I ii
144
THE DOMAIN OF PROCEDURE.
and refuses to take it or to refer it to his adversary,
fails in his demand or exception. So for the adver-
sary to whom he referred it, and who refused to take
it. But the moment the oath is accepted and the
statement made upon it, the one who offered or
referred the oath is not permitted to contradict the
statement.
*' The oath put officially by the court to one of the
parties cannot be referred by him to the other. The
oath, upon the value of the thing demanded, can only
be put by the court officially to the party claiming,
when it is impossible to establish such value other-
wise "(a).
It will be seen, by the foregoing sketch, that this
Chapter of Proof has a special interest for lawyers,
and that it belongs, somewhat, to the domain of Pro-
cedure. I do not see the necessity of any more upon
the subject, in this Essay.
(a) Arts. 1255 and 1256.
A SYNOPSIS OF OBLIGATIONS.
145
CHAPTER XIII.
A SYNOPSIS OF OBLIGATIONS.
Let me draw the attention of the reader to the map
— chapter III — and with it before the eye, we shall
proceed to give, in a few short pages, the sum and
substance of all that has been gleaned from Latin and
French authors, from the Code Napoleon and our
Civil Code of Lower Canada, and expressed in the
foregoing chapters, from III. to XIL
Once more recall that species of syllogism wherein
I expressed the way of learning when there is a right
to an action at law, and when there is no such right.
Two things are necessary in order that an action at
law may be had — 1st. The existence of an obligation ;
and 2nd. The violation of that obligation. It is there-
fore necessary to know four things — 1st. What is an
obligation. 2nd. Whence an obligation arises. 8rd.
How many kinds of obligations may exist; and 4th.
How an obligation becomes extinguished.
While the first three questions are being examined
there may be a violation of the obligation, that will
give rise to an action at law ; but the moment the
fourth question comes up and any of the means of
11
ill;!
146
SOURCES OF OBLIGATIONS — CONTRACTS.
extinction of obligations arises, there is no power or
right to such action any more. But it is well to know
when an obligation is extinguished — also how violated.
Then let us answer rapidly the four questions —
I. What is an obligation ? II. What are the sources
of obligations ? III. How many kinds are there of
of obligations ? IV. How is an obligation extin-
guished ?
I. What is an obligation ? An obligation is a legal
tie by which one person is bound towards another to
give, to do, or not to do something,
II. What are the sources of obligations ? They are
five in number — 1st. Contracts. 2nd. Quasi-contracts.
3rd. Offences. 4th. Quasi-oftences. 5th. The sole
operation of the Law.
Let us examine each of these — without one of these
five there is no obligation — if no obligation there can
be no violation of one, and if no violation of one, there
can be no action at lau\
1st. Contracts. A contract is a convention whereby
two parties reciprocally, or one of them only, promises
and binds himself to give, to do or not to do some-
thing. There are four causes of nullity of contracts —
error, fraud, violence, and lesion. The error must be
in something material to the contract ; the fraud
must be of a nature that the party would not have
contracted ha,d it not been for it ; the violence and
fear must be, the one sufficiently dangerous and the
other sufficiently grave ; lesion must be against minors
and of sufficient consequence.
QUASI-CONTRACTS, OFFENCES, ETC.
147
31' or
know
ated.
ms —
urces
jre of
Bxtin-
legal
her to
ey are
tracts,
ae sole
f these
re can
, there
lereby
)mises
some-
bcts —
lust be
fraud
have
te and
id the
linors
2nd. A quasi-contract : is the lawful and voluntary
act of a person whereby he binds another towards
him, or himself towards another, without the inter-
vention of any contract between them. As in the case
of one who undertakes the management of an absen-
tee's estate.
8rd. An offence^ and 4th. A quasi-offence : are the
actions of a person, capable of discerning right from
wrong, and who by his fault, imprudence, neglect or
want of skill causes a damage to another. The offence
is when he is the actor himself; the quasi-offence when
it is his servant, child, horse, or any one or anything
under his care.
5th. The sole operation of the law is a source of
obligations in such cases as that of children obliged to
provide for indigent parents.
These are the sources of obligations. From these
five sources and only from these can an obligation
arise. And once it exists it has a suspensive effect
until either its extinction or its violation. In the first
case, things go back to their position anterior to the
existence of the obligation, and in the second case an
action at law arises.
III. How many kinds of obligations ? There are six
divisions upon this question — 1st. Conditional obli-
gations. 2nd. Obligations with a term. 3rd. Alter-
native obligations. 4th. Joint and several obligations.
5th. Divisible "ud indivisible obligations. 6tb. Obli-
gations with a penal clause. Each of these six points
will bear a definition.
•ffii'iii
iii
f
T^
1
i,'.
1
148
THE DIFFERENT KINDS OF OBLIGATIONS.
ifi-'l
Ist. A conditional obligation is one made to depend
upon an event future and uncertain, either by sus-
pending it until the event happens, or by dissolving it
accordingly as the event does or does not happen.
2nd. An obligation v^ith a term differs from the
suspensive condition inasmuch as it does not suspend
the obligation, but only delays the execution of it.
3rd. An alternative obligation is one wherein the
debtor is discharged by giving or doing one of the two
things which form the object of the obligation.
4th. Joint and several obligations ^ as far as creditors
go, give to each of them singly the right of exacting
the performance of the whole obligation and there-
upon discharging the debtor ; and as far as debtors
go, that bind the co-debtors all for the same thing, in
such a manner that each of them singly may be
compelled to the performance of the whole obligation,
and that the performance by one discharges the others
towards the creditor.
6th. Divisible obligations are those that have for
their objects, things which in their delivery or perform-
ance are susceptible of division either materially or
intellectually. The indivisible obligations are the
contrary.
6th. The penal clause is a secondary obligation by
which a person, to assure the performance of the
primary obligation, binds himself to a penalty in case
of its inexecution.
These then are the six classes of obligations that
may arise from any of the five sources before men-
MODES OF EXTINCTION OF OBLIGATIONS.
149
tioned. At this point they are either violated or
become extinguished. If violated, the courts are
prepared to hear the dispute and remedy the wrong ;
if not violated, in the course of nature they become
extinguished.
IV. How are ohligations extinguished ? By six ordin-
ary means and b}' six extraordinary means — 1st.
Payment. 2nd. Novation. 8rd. Eelease. 4th. Com-
pensation. 5th. Confusion. 6th. Performance be-
coming impossible. Let us define each of these.
Ist. Payment is not only the delivery of a sum of
money, but the performance of anything to which the
parties are respectively obliged.
2nd. Novation is the substituting one debt for an-
other either by change of the object, by change of the
debtor, or by change of the creditor.
, 3rd. Release is the surrender, express or tacit, by a
creditor to his right or claim upon the debtor.
4th. Compensation — known as off-set — is the becom-
ing of two parties mutually debtor and creditor of each
other.
5th. Confusion is the blending of the qualities of
debtor and creditor in the same person.
6th. Performance becoming impossiblcy may be the
total loss of the object or its delivery becoming impos-
sible. This is a mode of extinction of obligations only
when there is no fault on the part of the debtor.
Now we turn to the six extraordinary means of
extinction of obligations, they need merely be named
and require no further notice — 1st. Judgment in
I ■
1:;
k
W. V
I! <'
160
REMARKS ON PROOF.
nullity. 2nd. Resolutive condition. 3rd. Prescrip-
tion. 4th. Expiration of time limited by law. 5th.
Death of the creditor or of the debtor. 6th. By
special clauses applicable to special contracts.
In these few pages the reader has a resum/ of all
that may be found in the whole essay. Now that you
know what an obligation is, how many kinds of them
exist and whence they spring, you have a pretty good
idea whether you have contracted any obligation
towards anyone or not. If you have, you know now
how that obligation may be extinguished, and you can
tell whether such extinction has taken place or not.
If not, has the obligation been violated or not ? By
your answer to this question you know whether you
have a right to an action at law, or whether any
person has a right to one against you or not. Know-
ing these things, you are safe, and the details belong
to the lawyers.
The questions of procedure and proof are for the
members of the Bar alone, while the general questions
of obligations are not only for them and the students,
but also for all citizens of this Dominion.
I have striven in this essay to fulfil my promises.
I give a plan of the whole Code, then a map of obliga-
tions, followed by all the details of that important
title, — not my own arbitrary expressions, but the
translated statements of the most eminent jurists and
renowned authorities ; then the full list of those autho-
rities, at the bottom of each page, their names, the
volume, page or number of each work. Having gone
THE OBJECT OF THE ESSAY.
161
through the title from end to end, i subjoin a short
chapter on proof and, in this present chapter, give the
synopsis of the whole essay, which is, in itself, but a
feeble synopsis of a gigantic subject.
The only object I have in view is the imparting of
useful information to the public. I have had many a
long hunt, through the wilderness of old ideas and
new opinions, for the subject matter of these few
pages, and I now place at the disposal of my fellow-
countrymen the spoils of that chase.
ij
m
152
THE CONCLUDING REMARKS.
CHAPTER XIV.
CONCLUSION.
Mil
w
m,-^^
The study of the law is far from being a dry one ;
combining the knowledge of many sciences, it is
likewise rich in literature and lofty prose. It has a
history as well as a philosophy peculiar to itself. By
no means can I better illustrate the depth, the beauty,
and the utility of such a study, than by taking one
example, a single phrase in the laws of the Romans,
and tracing it, as you follow a stream from its source
to the sea, from its first appearance amongst the laws
of the Romans, down along the ages, now meander-
ing slowly along, now leaping from the cliffs of time,
here gleaming out in the sunshine, there hidden, for
a space, beneath the earth, through all its vicissitudes
until, at last, it flows calmly into the broad sea of
our codified system.
Opening the ancient laws at random, I find — " Si
ita stipulatiis fuerc decern aut quinqUe dari spondeSf
quinque debenture Law 12th on obligations, ** Thus
NUMISMATICS AND LAW. 153
if you promise to give ten or five s/stertu^ five you
shall owe and not ten." The principle is, when two
things are stipulated and the disjunctive (or) is used,
that the party stipulating is only bound to one, a
that the lesser of the two. This law has been laid
down by the first Roman legislators before the days of
the Empire.
The first qut .tion that you may ask, is, what are
s/stertii ? It is the plural of sMertiuSy a Eoman coin.
Among them the computation was by sestertu nummi
as follows :
1. s. d. q.
A sestertius equals If
10 sestertii equal T. 1 7 IJ
1000 sestertii equal
A sestertium equals 8 15 2
10 sestertia equal 80 14 7
100 sestertia equal 807 5 10
But you say this is numismatics. Most assuredly
it is ; from the Roman term nummus we get the
name, and you see how I can, if I desire, unite the
study of numismatics with that of the law. I merely
give the above by way of illustration, that the reader
may see how, in the true study of the law, we require
the study of other sciences. Let us take up our law
12 of the ancient Romans, and follow it for awhile.
We need not go back to the days of the kings, or to
the time of the consuls, for this special law did not
;i
m
154
CONSTANTINE — DIVISION OF EMPIRE.
Vl
ifi:
then exist. We cannot trace it, as we may many
others to the Tribunes or the laws of the twelve
tables. The orders of consuls, the opinions of jurists,
the edicts of the praetors and commands of emperors
seem to have constituted the legal guides until we
come to the days of Constantine the Great.
Thirty-one years, from A.D. 306 to A.D. 887, this
famous monarch held sway. But only from A.D. 825
had he sole title of Emperor. When, at the death of
Maxeminus he was elected Emperor, the army made
choice of Maxentius. Constantine offered him most
favourable terms, but he refused them ; thence sprung
the quarrel, which was settled on the field of battle.
The cross was flung out, a glorious supernatural
standard upon the sky, and in the name of the God
of ihe Christian, Constantine marched to victory.
The Empire was divided into east and west. The
phantom of an Empire hovered over the east ; and
the west, ravaged by the barbaric hordes of the north,
tottered to its fall.
But if ruin seized upon the monuments of ancient
Eome, and the ubiquity of her mighty dominion was
curtailed, yet her laws lived, and despite the ravages
of the Huns and the approaching desolp.tion of that
giant of the past, those laws were preserved and em-
bodied in Codes and Institutes.
Pre-eminent in history as the first Christian emperor,"
famous as a conqueror, yet Constantine, in 825, caused
JUSTINIAN— GOTHS — ALARIC.
165
bis Constitution to be written wbicb perpetuated for
one hundred and fifty years those laws, which Jus-
tinian was destined to embalm for the guidance and
use of untold generations.
Like Constantine, Justinian was a conqueror ; but
he gave to the world the model of future legislation
in his Digest of the Laws, the Pandects, the famous
Institutes, to which A.D. 534, he added his memorable
Code. During his life, there were only the Digest,
Institutes and Code ; but after his death, which took
place in 566, his own constitutions were collected and
called the Novelloe or Novels of Justinian.
For three hundred years after his death, the body
of laws compiled by Justinian was observed in the
east. Even in his own day, the Code and Digest were
translated into Greek.
In the west, the bodies of laws compiled by this
famous emperor, had at first only effect in the western
provinces of Ital}'. The rest of the west being under
the barbaric laws of the Goths, Huns, Vandals, Lom-
bards and Franks. Despite these ravages, Kavenna
conserved vestiges of the Koman laws. In Gaul, there
existed a strange mixture of Roman and French laws.
Alaric, second king of the Goths, seeing that the Gauls
detested the Gothic laws, had, in 506, a Code of
Roman laws compiled and published, under the name
of Theodosian Code, for their benefit.
Behold that beautiful picture, drawn by one of our
lii!
166
BULWEB ON HISTORICAL CHANGES.
greatest modern writers, of the fall of Roman splen-
dour and the approach of that long night of barbarism
and division that was about to settle upon Europe !
"Poor Boethius," writes Bulwer, **rich, nobly born,
a consul, his sons consuls — the world one smile to the
last philosopher of Rome. Then suddenly, against
this type of the old world's departing wisdom, stands
frowning the n^.^' world's grim genius /orce. Theo-
doric the Ostrogoth condemning Boethius, the school-
man, and Boethius in his Pavan dungeon, holding a
dialogue with the shade of Athenian Philosophy. It
is the finest picture upon which lingers the glim-
mering of the western golden day, before night rushes
over time."
And the night came. Monuments were levelled,
libraries destroyed, civilization bleeding and crushed,
cried for mercy ; yet beneath the lava tide, gorgeous
and perfect as the mosaics of Pompeii or the marble
columns of Herculaneum, reposed those pillars and
checker-work of ancient legislation — buried in the
volcanic eruptions of the north, buried to be again
disinterred, in years to come, beautiful and perfect
as ever — even the shattered fragments the more
precious for their antiquity, olden grace, and pristine
splendour.
Charlemagne, that great politician and warrior,
being crowned Emperor of the West, A.D. 800, over-
threw the power of the Lombards and abolished their
CHARLAMAONE — LOTHAIRE 11. — MR. FERRIERE. 157
laws. He revived the Roman laws ; but his success
was not great, for even three hundred years later on,
in 1100, the body of Roman laws, compiled by Jus-
tinian, was unknown in the west, and Alaric's Code
was only followed in a few provinces.
Lothaire II. brought back the ancient grandeur of
the days of Justinian by reviving his law, while
Frederick I. promised to aid in that great under-
taking. Frederick II., his grandson, who was elected
Emperor in 1212, paid special attention to and con-
ferred favours on all who cultivated the science of the
laws. He united to the Code of Justinian several
chapters of a new Code.
An old author on Roman and Ancient laws, M.
Claude- Joseph de Ferriere, says : " Behold the destiny
of the Roman laws ! It seems that Divine Providence,
in destroying so vast and so flourishing an Empire,
wished, for the good of the people, to conserve that
perfect model of jurisprudence. We can never too
much admire the wisdom of God, who, in overthrow-
ing the throne of the Emperors, preserved, in all
Europe, the empire o' ^heir laws. Thus, people who
suffered under their yoke have freely recognized their
laws, while people, who were never conquered by the
arms of the Romans, have accepted the authority and
power of Roman jurisprudence."
The Roman laws spread over Europe, and France,
more than any other country, adopted them, blend-
168
THE REIGN OP LOUIS XIV.
ing them into her very constitution, and founding
upon them that iniraitahle system of Civil Jurisprud-
ence, which has been the parent of our laws in Lower
Canada.
In the reign of Louis XIV., surnamed the Great,
those laws were re-written and with the revival of
letters, arts and sciences throughout Europe, came
the true revival of the Eoman laws in all their perfec-
tion. It was under Constantine, a warrior of renown,
that they were first codified ; under Justinian, a
warrior and monarch of undying fame, that they
received their real life ; under Charlemagne, also sur-
named the Great, that they were partially revived,
and under Louis the Great that they became perma-
nently established. While Cond^ and Turenne fought
the battles of the state, while Fenelon, Bourdaloup,
Masillion and the soaring Eagle of Meaux-Bossuet,
were pouring forth their imperishable floods of eloqu-
ence, when Corneille was reviving the Cid and Racine
was tuning his harp to the pious ear of the nation,
when poetry and eloquence, science and art were
coming forth to dazzle the world, then the laws of
ancient Rome began to resume their mighty dominion
in the world. Dumoulin, Furgole, Domat, and others
were stamping them upon the minds of the people.
At the end of the seventeenth century, on the 9th
January, 1699, in Orleans, there was born a child,
destined to become one of the greatest writers of his
age, one of the most famous jurists of all ages, that
POTHIER— THE CUSTOMS OF PARIS.
159
is Bobert Joseph Pothier. From the year 1726 to
1772, the date of his death, Pothier wrote and studied
and taught. He became an authority whose opinion
is almost above question. His Customs of Paris,
Customs of Orleans and powerful work on Civil laws
bear the impress of a master hand, and his extra-
ordinary treatise on Obligations, so often quoted in
this Essay, served to establish most permanently in
France these immutable principles drawn from the
old Eomans.
But have we lost sight of our text ? What has be-
come of law 12y which we were to follow the whole
way down from the days of the Emperors ? Open
Pothier on Obligations, page 285, number 245, second
paragraph, what do we find ? ** When any one has
bound himself to pay two different sums of money
under a disjunctive, the obligation is alternative and
he is only debtor for the smaller sum,'*
Here then, after one thousand years of burial, or
rather wanderings through the mazes and ruins of
barbaric devastation, we find our principle of the old
law 12 renewed, or rather revived in the works of
Pothier.
But if the laws were codified, and re-established
under such great warriors and monarchs as Constan-
tino, Justinian, Charlemagne and Louis XIV, you
must necessarily look forward to some great monarch
or great conqueror, who is to solidify them anew and
nil
HI
H
III
■ I '4
in
i
}i\
I"''
li. "1
IH'
i!L
W--k
160
NAPOLEON I. AND HIS CODE.
to place them before modern Europe in a prominent
and lasting form.
Such was reserved for the greatest warrior of all
ages, this duty of law-giver to a people. Napoleon,
having conquered a Marengo, having beheld **foi«y
centuries look down" upon his victory, from the pyra-
mids of the Nile, having seen the sun of Austerlitz
gild the crimson field of Jena, and his eagles fly from
spire to spire, until thoy perched on the towers of
Notre Dame, having witnessed the Czar accept peace
on a raft at Tilsit, and beheld Europe's kings feel for
their crowns, and her emperors grope for their
thrones, having become the patron of letters, the
friend of David, the benefactor of Delisle, the admirer
of England's Sir Humphrey Davy, the conquering
Corsican prepared a monument that would perpetuate
his memory aud his name, long after the fading
trophies of the Invalides shall be dust. He gave to
France and the world the " Code Napoleon," the
embodiment of the ancient laws of the Eomans, with
all their improvements and changes.
Let us look for the principle cf our law 12. In
article 1189 of the Code Napoleon we again find re-
produced our principle.
Then upon this Code we find endless commentators.
Aubry and Eau, Marcade, Larombi^re, Demolombe,
Mourlon, and a host of others too numerous t . require
mention here. From this Codf nd these authorities.
C. C. L. C. A RETROSPECT.
161
our laws in Lower Canada were taken. By the treaty
between Prance and England at the time of the eon-
quest, Lower Canada received the guarantee that her
laws would not be changed, that the French system
would prevail, and it is therefore that our Civil Code
i.o founded upon the French Code Napoleon, the
authorities thereon, the works of Pothier and his
cotemporaries, and finally, the great body of Eoman
laws.
Then our article ^'093 reproduces the article 1189
of the Code Napoleon, which reproduces the number
245 of Pothier's comments, which reproduces the 12th
law found in the bod}^ of laws given to the world in a
new form by Justinian, which body of laws reproduces
the laws derived from Tre'batius, Labt^on, Capito,
Sabinus, Proculus, Julien, Africanus, Caius, Scoevola,
Papinien, Paul, Ulpien, Aquila, and so on to the very
days of the Pioman Tarquins.
The reader may now form an idea of the immensity
of matter presented to the real student of the law, the
vastness of the fields that spread out for his explora-
tion, and the endless horizons that ever widen before
him as he goes. Also, he may judge of how important
it is for each one to know something of the laws of his
own country. It is not necessary to be able to trace
them back to their spring or origin, but for the use of
the present, in the actual affairs of life, it is obvious
that he nust succeed best and keep most within the
range of the law.-s, who knows most about thera.
12
162
THE AUTHOtt 8 WISHES.
It was with the object of cunveying a few clear ideas
upon this all important and fundamental title of
obligations, that I composed and compiled this essay,
and I only wish that my readers may obtain as much
benefit from the perusal of these pages and find as
much pleasure therein, as I have had in the penning
of them. Trusting that this little seed may come
forth, grow, spread abroad its branches and fructify,
I cast it, at random, upon our Canadian soil.
,y
'•W
INDEX.
PAOR.
Absolute, when discharge of a debt is 85
Accessory, Obligations are principal and 95, 96
Acquisition of property, modes of 14
Action at Law, v'hen allowed 8
Of creditor is a personal one 30
When forbidden by law 40
Of debtors . 86
Alteunativk Obligations : Those that are discharged by the
debtor giving or doing one of the two things reqnired. 70
Conjunctive 71
Disjunctive 71
Ancient Law, defaults in the 50
Avoidance of Contracts 35
Banker not relievable for cause of lesion when contracting
for the purposes of his business 27
Bankruptcy, definition of 09
Beginning of the Code — 1st Book 12
Bigot — Preameneus' opinions 71
British Subject, definition of a 12
By whom payment may be n»ade 100
Casual, conditions that are 02
Cato's theory of penalty 97
Causes of Nullity of Contracts, Error, Fraud, Violence, Fear
and Legion 22
Civil and Criminal Actions, distinctions between and pre-
ference of 48, 49
Code Napoleon on Conditions 00
Articles of our Code on joint and several Obligations .. 74-7.)
Co-Heibs : How they are answerable to creditors 90
164
INDEX.
1^^
m-^
n;'^''ii
FA.ax.
CoMMKNTS, on joint and several Obligations 79
Commentators, on payment 102-108
Commerce, what are objects of .' 52
Commercial partners, law referring to 79
Compensation, known as off-set, is the becoming of two par-
ties, mutually creditor and debtor of each other . , . . 132
Code on 13&
When may you oppose 132
What is necessary for 133
On what is based 133
Conditions for 134
I'jxceptions to 134
When optional 135
Conditional : Obligations are conditional \vhen made to depend
on any event future and uncertain 01
Conditions : There are three kinds, viz., Positive, Mixed and
Casual 02
Confusion: The blending of the qualities of creditor and
debtor in the same person 136
Code on 135
Frain's comments on 130
Contracts : A contract is a convention whereby two parties
reciprocally, or one of them only, promises and binds
himself to give, to do, or not to do something 20
Conventions, definition of 20
Corporations : A Corporation is a body composed of ojie or many
individuals, forming one legal being, and being per-
petual, at least in theory 13
CoRRKi Debendi, what are 79
Damages, explanation of 67-00
For non-performance of a contract 57
Default, explanation of 56
Delay, damages caused by 59
Delegation, definition of 123
Concurrence of whom necessary for 123
Differs from Transfer : How ? 124
Differs from Ii.^ication : How ? 124
INDEX.
1G5
IB
y
20
20
13
79
57-00
57
5C
59
123
123
124
124
PAQE.
DELKrtATioN — Continued.
Differs from Novation : How ? 124
Perfect defined 120
Imperfect defined 126
Demand, made on one co-debtor interrupts prescription as to
the others 80
DEMOLOMnE, on joint and several ObHgations 84
Demanokat, on the same 84
Divisible and Indivisible Obligations : The former are those
which have for their objects, things which in their
delivery or performance arc susceptible of division,
either materially or intellectually. The latter are the
contrary 87
Effects of Contracts between third parties 31
Of Obligations 54
Of Payment 104
Emancipation, definition of 13
Error, definition and explanation of 23
Example of when an action at law is or is not allowed 8
Of Error in contracts 28-30
Of Effects, etc 32
Of Stipulation 34
Of Reception of a thing not due 43
Of Offences and Quasi-Offences 47
Of Compound Interest 58, 59
Of Conditions 63
Of Failure 70
Of Bankruptcy 70
Of Divisible and indivisible Obligations 87
Of Payment 102
Exceptions : Which three can be opposed to divisible and indi-
visible Obligations ? 85
Expenses of Payment : By whom borne ? 103
Extinction, of debtor's action 86
Of Obligations 100
Failure of condition and its effect 08
Definition of 64
IGO
IKDEX.
PAGE.
Fin de non recevoir, meaning of 96
Fraud, definition and explanation of 25
Fulfilment, of conditiona and its effect 67
FuTUHE, all conditions must be 62
Gifts, inter vivos, meaning of 14
Heir : The rights he has when sued on an indivisible Obliga-
tion 88
Historical, a note that is 114
Imi'ossirle, no one is held to the 53
Imputation, by whom made and in what cases 115
Of Payment explained 116
iNbiviSiRiLiTfe contractu, meaning of 90
Intention, more important than the literal meaning 28
Interest, when law allows compound 60
Interpretation of contracts 28
Joint and Several Obligations : As far as creditors go, give
to each of them singly the right of exacting the per-
formance of the whole Obligation and thereupon
discharging the debtor, and as far as debtors go, bind
the co-debtors all for the same thing, in such a
manner that each of them singly may be compelled
to the performance of the whole Obligation, and that
the performance by one discharges the others towards
the creditor 72-75
Key-stone of the Code is Obligations 16
KiNDr of contracts 22
Of divisibility and indivisibility 93
Of Obligations: there are six: — Ist. Conditional. 2nd.
Termal. 3rd. Alternative. 4th. Joint and several.
5th. Divisible and indivisible. 6th, With a penal
clause 61
Law: It is a rule of action prescribed by a superior power
(Blackstone) 2
As a source of Obligations 50-51
Lawyers, a word to the 5
Layjien, remarks for the 7
Lesion, explanation of 27
INDEX.
167
. 25
. 67
. 62
. 14
. 88
. 114
. 53
. 115
. 116
. 90
. 28
. 60
. 28
72-75
16
22
93
61
2
fO-51
5
7
27
PAOE.
Map of Obligations 18
Masters, their rights over servants, etc 46
Maxims taken from Roman law 22
McCoiii), remarks on C. C. L. C. by Judge 10-11
Mechanics, provisions respecting 27
Meuchants, provisions respecting 27
Minority and Majority defined 13
Minors, when not relievable for lesion 27
Mixed conditions explained 62
Moral, all conditions must be 62
Mourlon on penalty 98
Negative conditions, and what they are 67
Neootiorum-Gestio, definition of: A voluntary Jand personal
act whereby one party binds himself towards another,
in the management of his affairs, without the interven-
tion of any contract between them 39-40
Novation : It is the substituting one debt for another, either
by change of the object, by change of the debtor, or
bv change of the creditor 120-121
mons of Pothier and Duranton on 126
tv hen there is a 120-121
Different modes of 124
Different kinds of 125
C. C. L. C. upon the question of 120-121
Commentators on 122
The will necessary for 123
Who cannot cause 124
Number of articles under Obligations 17
Object : imlividuum contractu et obligationc PI
Of this Essay explained 51
Of Obligations given 52
Obligations : An Obligation is a legal tie by which one person
is bound towards another to give, to do, or not to do
something 19
When the iaw alone causes 50
rr^
168
INDEX.
PAGE.
Offences : An offonco in tlio action of a person, capable of
discorninf^ right from wrong, and who by his fault,
imprudence, neglect or want of skill causes a damage
to another 4;')-4()
Omission is the failure in something ordered by law to bo
done 46
OwNEUsnip : It is the right of enjoyment and of disposing of
things in the most absolute manner, provided that no
use bo made of them which is prohibited by law or
by regulations 14
Facte de Remise, meaning of the 85
Parents and their rights over children 46
Paulienn*? Action, when wo may use the 36
What must be proven 36
And who may use it 36
Effects of the 37
Payment, when made in fraud of the creditors — the conse-
quences 35
When made before the term 60
C. C. L. C. on the subject of ". 103
Several examples of 108
Definition of 104
Is not only the delivery of a sum of money, but the per-
formance of anything to which the parties are respec-
tively obliged 104
Who must make 102
To whom we must make 107
Effects of good or bad faith on 104
Pendente Conditione : Effects of fulfilment 67
Penal Clause : It is a secondary Obligation whereby the fulfil-
ment of the principal Obligation is secured 94
Peufect, joint and several Obligations that are 83
Performance becoming impossible 137
The C, C. L. C. upon 138
No one held to an impossible, 139
Plan of the Code 10
Poetry in law, remarks upon the 3
INDEX.
169
46
14
85
46
36
36
36
37
104
102
107
104
67
04
83
137
138
139
10
3
I'AOE.
P08ITIVK coiulitioiis definetl ami explained 67
PiiESUMPTioNs, when the law cauHes 82
Proof, remarks on 140
The C. C. L. C. on the question of 140-144
PucpoRTioN, theory of penal 96
Quasi-contracts : It is defined under negotiorum-gestio 38
QuASi-OFFKNCEs t The same definition as offences, except that
the offence is when the party is himself the actor,
while the quasi-offence is when it is his servant, child,
horse, or any one or anything under his care that
does the deed 45, 46
Reception : Obligations arising from the reception of a thing
not due 42
Relations of mandator and mandatary, contrasted with those
of the master and administrator 40
Relatt' 1: discharge (express or tacit) 85
Release, G. C. L. C. on the question of 127
It is the surrender, express or tacit, by a creditor of his
right or claim upon a debtor 127
Real and Personal defined 128
Power to grant a 129
The effects of a 130
Code Napoleon on 130
REsuMi of error 23
Of alternative Obligations 71
Of joint and several Obligations 82
Of Subrogation 114
Of Novation 125
Rights of payor and payee 103
Roman Law on conditions 66
Stipulate, no one can, for another 33
Students, a word for the , . . . ^
Subrogation, C. C. L. C. on 109, 110
Definition of 112
Pothier, Merlin and Grappe on 113
Systems of 112
Co-debtors in 81
13
im
170 INDEX.
PAGE.
ScccBSsiONH : Future sucoesBions cannot be the objects o'
Obligations 14 and HH
HuHPBNHiON and extinction by term 69
Synopsiu of Obligations 145
Tendeu and deposit explained 117
Term, differs from a suspensive condition 68
Obligations with a 68
Thinos are movable and immovable 14
Traders, when not relievable for lesion 27
Tutorship defined and explained 13
Use of a knowledge of law H and 1()1
Usufruct, use, habitation, servitude, emphyteusis, their place in
the Code 14
Voluntary administrators 41
Whole, distinction between wholly and 92
Will, action of the 20
Thos. Moouk Hi Jo., Printers, 20 A lelaide Street East, Toronto.
PAGE.
bs o'
i and /iS
.. 69
.. 145
.. 117
.. 68
.. 68
.. 14
. 27
.. 13
and 161
e in
... 14
... 41
. . . . 92
... 26
IMAGE EVALUATION
TEST TARGET (MT-3)
V
/.
1.0
I.I
1.25
'- Ilia
M
2.2
1=
U ill 1.6
V]
<^
/i
A
c
Ca.
y
/^
c^
«■
«^
\
\
^N^
k^
:w
t^-
w^
h
^
vV
mi
?/
LEWIS' JUSTICE'S MANUAL. Containing a short summary of
. the usual practice and manner of procedure in ordinary cases,
coming under the observation of Justices of the Peace, Coroners,
Constables, Landlords, Bailifls, etc. By E. N. Lewis. Cloth,
^1.50; Half-calf, $2.
HOWELL ON NATURALIZATION AND NATIONALITY IN
« CANADA ; Expatriation and Repatriation of British subjects ;
Aliens, their disabilities and privileges in Canada, etc. By Alfred
Howell, Cloth 1^1.50 ; Half-calf, I2.
CAMERON ON DITCHES AND WATERCOURSES. The
Ditches and Watercourses Acts of Ontario, with Notes and Refer-
ences to Decided Cases. By M. G. Cameron. Cloth, 75c.
' Especially useful to Municipal Officers."
JONES' CONSTABLE'S GUIDE. The County Constable's Manual
or Handy-Book, with subjects arranged alphabetically. By
J. T. Jones, High Constable County York. Cloth, 50c. ; Leather,
75c.
THE P WERS OF CANADIAN PARLIAMENTS. By S. J. Wat-
son, late Librarian of the Parliament of Ontario. Cloth, $1.
TRAVIS' CONSTITUTIONAL LAW. A treatise on the Constitu-
tional Powers of Parliament and of the Local Legislatures under
the British North America Act, 1867. By J. Travis. Paper, i^i ;
Cloth. !$i. 25.
THE CANADIAN FRANCHISE AND ELECTION LAWS. A
Manual for the use of Revising Officers, Municipal Officers, Can-
didates, Agents and Electors. By C. O. Ermatinger, Q.C,
M.f'.P. Cloth, ^5.
CARSWIlI.Ii & CO., I.AW FUBI.ISIIEBS,
26 ft 28 Adelaide Street East, Toronto.
^-
i\
Dorouto.
BOYS' ON CORONERS. A Practical Treatise on the office and duties
of Coroners. By W. F. A. (Judge) Boys. Secoml Edition. Half-
calf, ^2.
CAMERON'S LEGAL OPINIONS. A collection of upwards of 130
leading opinions on Cases submitte(^ to the late Hon. J. Hillyard
Cameron. Cloth, ^i ; Half-calf, ^1.50.
CLARKE ON BILLS. A Treatise on the Law relating to Bills.
Notes, Cheques, and I. O. U's., as it exists in each of the Provinces.
By S. R. Clarke. Half-calf, $2.
DOUTRES CONSTITUTION OF CANADA. The B. N. A. Act.
1867 ; its interpretation, gathered from the decisions of the Courts ;
the dicta of Judges, etc. By Jos. Doutre, Q.C. Half-calf, ^5.
DOUTRE ET LAREAN DROIT CIVIL CANADIEN. Suivant
I'ordre etabli pour les Codes. Precede d'une Histoiie generale du
droit Canadien. Vol. I. (all published), 1492-1701. Half-sheep,
•; ^^2.25. .. .. •- , ,•
EWART'S EXAMINATION QUESTIONS on Leith's Blackstone.
By J. S. EwART. y.C. Paper, #1.
HOWELL'S SURROGATE COURT PRACTICE. A Treatise on
the Law and Practice as to Probate, Administration and Guardian-
ship, in the Surrogate Courts, in common form and contentious
business, including all the Statutes, Rules, Orders and Forms, By
Alfred Howell. Half-calf, $6. ■
JONES ON THE TORRENS SYSTEM* of Land Transfer. A
Practical Treatise vn "The Land Titles Act of 18S5, Ontario,"
and " The Real Property Act of 1885," Manitoba. Embracing all
the English, Australian and Canadian Cases. By H. C, Jones,
M.A. Cloth, I4.50; Half-calf, $5.
KEHOE'S CHOSES IN ACTION. An exposition of the law relat-
ing to the Assignment and Transfer of Securities, with the practice
thereunder. By J. J. Kehoe. Cloth, ^2 ; Half-calf, ^2.50.
CABSWEI.I. & CO., I.AW PUBLISHERS,
26 ft 28 Adelaide Street East, Toronto.
X