Transfer, Enforcement and Extinction of Personal Rights
(1) Transfer of Personal Rights
In Gaius' institutional scheme,[1951] the law of obligations was grouped together with property law and succession as the ‘law of things'.
The primary focus here is on the right itself, rather than on the way in which it arose. We are considering the right as an economic asset among other economic assets. The implication is that we should think of the personal right as itself a form of property.[1952]There is a long-standing debate on the question of whether rights can be conÂsidered property.[1953] If they are, though, this raises the question of whether it ought not to be possible for the holder of the right to transfer it to someone else. This is certainly possible in modern law, by a process called assignation.[1954] Assignation involves the right of enforcement being transferred from one person to another, with the result that the debtor, instead of owing performance to the original creditor (the assignor), now owes performance to a new creditor (the assignee).
In Roman law, however, this was not possible. The ‘legal tie' between the parÂties was seen as being strictly personal to them. This came to be seen as inconveÂnient, however. The right being an asset of economic value, it is to be expected that the creditor may wish to transfer the right to someone else. For example, where the creditor is entitled to payment of a sum of money in six months' time, he or she may wish to raise money now by selling the right to payment, doubtless at a discount. That way, the assignor at least gets partial payment now, and the assignee gets full payment in six months. Ways were developed of getting round the bar on assignation.[1955]
One of these was novatio (novation),[1956] which involved the original obligation being replaced by a new one.
It was effected by the debtor making an undertaking, using the form of contract called stipulatw[1957] to make performance to the ‘assignee'.[1958] This, though, had the disadvantage of requiring the co-operation of the debtor, and it also extinguished any security rights that were accessory to the original obligation.[1959] For these reasons, the more popular option was theprocuratio in rem suam.[1960]How this worked was as follows. It was always possible to nominate another perÂson to pursue a case on your behalf, as cognitor or procurator. If the cognitor or procurator was successful, of course, he would be expected to hand over his winnings to you. In procuratio in rem suam, however, the person authorised to pursue the case would only nominally be doing so on your behalf. In reality, he would be doing so on his own behalf.[1961] Thus, something functionally equivalent to assignation was creÂated. In the post-classical period, reforms allowed certain categories of ‘assignee' to sue as creditor in their own right, a process completed byJustinian.[1962] Even then, though, the ‘assignor' was still technically creditor, and so payment to him or her would discharge the debt. For this reason, the rule was developed in the late clasÂsical period that, if notice (denuntiatio) was given to the debtor, the debtor could not discharge the debt by paying the original creditor.[1963] In this way, the position in post-classical law became very similar to that in modern Scots law, in which an assignation is completed by notification (called intimation) to the debtor.[1964]
(2) Extinction of Personal Rights
Personal rights could be extinguished in various ways. The most obvious way is by the debtor making performance (solutio) of the obligation.[1965] A creditor could also accept a substitute performance or, indeed, excuse performance altogether.
This extinguished the obligation, and was called acceptilatio (acceptilation). In early law, it was held that this had to be done using a formal process, mirroring the procedure for the form of contract called stipulatio?1 However, in classical law, it came to be accepted that even an informal agreement not to pursue a debt prevented enforcement of it.[1966] [1967]As has already been mentioned, an obligation could also be extinguished by novatio (novation), which happened when the original obligation was replaced with a new one with the parties' agreement.[1968]
A special case of extinction happened in litigation, when the stage of litis conÂtestatio was reached.[1969] This discharged the original obligation, and replaced it with an equivalent one based on the litis contestatio. This was the basis of the doctrine of res iudicata, by which the same thing could not be sued for more than once.
An obligation was extinguished by confusio (confusion) when the same person became both creditor and debtor.[1970] This might happen when the debtor was the creditor's heir, or vice versa.
As we shall see below, an obligation could be extinguished when its perforÂmance became impossible without either party being at fault.
Finally, when the parties were both creditor and debtor to each other, the debts could be held to cancel out except to the extent of any surplus.[1971] This process was called compensatio. Thus, suppose that I owed you 100 and you owed me 200. With compensatio, this would simply resolve itself as you owing me 100. This was relatively straightforward with bonae fidei contracts, the formula for which allowed the judge discretion to take such matters into account.[1972] With stricti iuris contracts, the exceptio doli (see below) had to be used.[1973]
C.