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By what persons an obligation is acquired [for us].1


 [002] 2We must see by what persons an obligation is acquired [for us]. Clearly by ourselves,
 [003] our children, and by free men we have within our potestas, as procurators.3 Also by
 [004] bondsmen, our own or those we hold in common,4 or in whom we have a usufruct,5
 [005] or by the bondsmen of others6 whom we possess in good faith, if they stipulate in our
 [006] name.7 8<By free men and the bondsmen of others9 in two cases [only], ex operis suis
 [007] or ex re possessoris.>

In what ways an obligation is extinguished.


 [009] 10We must also see how an obligation is extinguished. It may sometimes be
 [010] extinguished by an exception, in many ways, as where one claims and the other
 [011] shows that he has paid. Also by a pact, as where it is subsequently agreed that he not
 [012] sue.11 12[If it is first agreed that he not sue, subsequently, with respect to the same
 [013] subject matter, that he may, the first pact is extinguished by the second, not indeed
 [014] ipso jure but by way of an exception.]13 [Or] by an exception of fraud or duress, as
 [015] where an obligation has been extorted by fraud or duress; [or] by an exception of res
 [016] judicata, as where one had been acquitted of an obligation by judgment;14 [or] by an
 [017] exceptio iurisiurandi, when an oath has been tendered [and sworn] or re-tendered
 [018] and then [not] sworn;15 [or] by an exception of prescription, because of lack of
 [019] proof, for just as time is a mode of raising an obligation so is it a way of destroying
 [020] it,16 through acquiescence and negligence, and consequently of destroying the
 [021] action, which must be brought within a certain period.17 For time runs against the
 [022] indolent and those unmindful of their rights.18 19An obligation [arising ex maleficio
 [023] or ex delicto] is extinguished by the death of the other of those between whom it
 [024] subsists, or of both, especially if it is penal and single; if it is double, penal and
 [025] recuperatory, it is extinguished in so far as it is penal and to that extent does not lie
 [026] against heirs, because pains bind those who cause them, nor for heirs, [but] dies
 [027] with the person.20 21An obligation is destroyed when it is so extinguished that
 [028] nothing of it remains, as by actual payment,22 for 23with the payment of what is
 [029] due the obligation is wholly discharged, whether the debtor himself pays it or
 [030] another for him, with his knowledge or without it, even if the payment is made
 [031] against his will. If the principal has paid the surety is released, and conversely. An
 [032] obligation is also discharged by acceptilation, which is called a fictitious payment,
 [033] as where it is asked, ‘Have you received everything I owed you for whatever
 [034] reason?’ and the answer is made, orally or in writing, ‘I have and acknowledge
 [035] receipt.’ 24<And [as] everything that may for any reason be comprised in a stipulation
 [036] may be extinguished by acceptilation, [so] acceptilation may be made for
 [037] part of a debt as well as for the whole.25 And just as obligations are extinguished
 [038] by acceptilation, so may they

Notes

1. ‘nobis’ as Inst. 3.28

2. Br. and Azo, 160; Inst. 3.28; supra 135

3. ‘ut procuratores’; ‘per nosmet . . . nostros,’ from line 6; Inst. 3.28. pr.; Richardson in Traditio, vi, 89

4. Supra 136

5. Supra 34, 136

6. ‘alienos,’ as 3.28.1; supra 135-6

7. Supra 87, 135

8. Supra i, 384; Inst. 3.28.1, 2; the two portions of the addicio are independent

9. ‘et servos alienos’ for ‘servientes nostros’

10. Br. and Azo, 160-64; Azo, Summa Inst. 3.29, nos. 1-2

11. Reading: ‘ut si conveniat postea ne peteret’

12-13. ‘Si primo ne peteret, et postea ... exceptionis,’ from supra 287, lines 33-5; D. 2.14.27.2: ‘Pactus ne peteret, postea convenit ut peteret: prius pactum per posterius elidetur, non quidem ipso iure [sed] replicatione exceptio elidetur.’; infra iv, 247

14. Infra iv, 353

15. Inst. 4.13.4; D. 12.2

16. Supra 157, infra iii, 141; cf. Drogheda, 282, 284

17. Supra 157, 168, infra 293, iii, 168

18. C. 7.40.3.3: ‘contra desides homines et sui juris contemptores’

19-20. This portion belongs on 289, at n. 14. It has often been discussed: Kantorowicz, 97-9; for ‘poena suos tenent auctores,’ infra 290, n. 20

21-22. Azo 3.29, no. 3

23-25. Inst. 3.29. pr., 1-2; reading: ‘Et [sicut] possunt omnes res ... tolli per acceptilationem, ita (for ‘et’) in partem ... sicut in toto,’ as Inst.

24. Supra i, 385

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