Bracton: Thorne Edition: English. Volume 2, Page 289

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Volume 2, Page 289

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[001] be renewed and made part of another obligation, several into¹ one, as where a sum
[002] of money is promised in satisfaction of several debts, suits and obligations.>
[003] ²Obligations are also discharged by novation,³ as where an obligation is transferred
[004] from one person to a second who takes the obligation upon himself. ⁴<For
[005] by the interposition of a new person a new obligation arises and the first is extinguished;⁵
[006] it is otherwise⁶ of informal undertakings to pay, as where one has
[007] undertaken a debt due from another. If an obligation has been transferred from
[008] one person to another who cannot be bound it is lost, as where it is transferred
[009] from one of full age to a minor.⁷ A surety and a penalty may be introduced into a
[010] novation; it may also be made subject to a condition, as ‘if the second party pays;’
[011] if not, the first obligation to remain in force.>⁸ An obligation is also extinguished by
[012] confusion,⁹ as where the thing has been so mixed with another that its identity
[013] is lost; also by the destruction of a thing that is unique.¹⁰ ¹¹As regards discharge,
[014] however, note that the preceding remarks are true if it was a corporeal thing that
[015] was comprised in the obligation; if incorporeal, as a servitude or other incorporeal
[016] right, discharge cannot be so accomplished since an incorporeal thing does not
[017] admit of livery. It seems, however, that it may be done [by] quasi-livery, by daily
[018] acquiescence¹² and use. And finally note that an obligation [arising ex contractu or
[019] quasi] is extinguished in the same ways as it is contracted: an obligation effected by
[020] delivery, if the thing is restored to the demandant; one effected by words, if a
[021] contrary obligation is made by contrary words; one effected by a writing, as where I
[022] have written that I owe, if the creditor writes that he has received; one effected by
[023] consent, as where there has been mutual consent on both sides, by mutual dissent,
[024] of both not of one alone;¹³ one effected by livery, where the thing delivered is redelivered;
[025] one effected by conjoining, if the contrary is done.¹⁴

Obligations arise ex delicto or quasi.

[027] ¹⁵Obligations also arise [ex delicto or quasi] ex maleficio or quasi from precedent
[028] words and deeds. [Delicta and maleficia are distinguished according to the will
[029] and intention with which they are perpetrated.¹⁶ For will and intention are the
[030] marks of maleficia.]¹⁷ Ex maleficio the major and minor¹⁸ crimes arise, as the crime
[031] of lese-majesty, homicides, thefts and robberies, trespasses or praesumptiones, and
[032] many others of which we will speak below. Quasi ex maleficio, as where a judge
[033] wittingly pronounces a false judgment.¹⁹ Everything wrongfully done may be
[034] called an injuria.²⁰ Injuriae arise ex maleficio or ex delicto, as²¹ trespasses. It is a
[035] trespass when mean and measure are not observed.²² [Thus] we must consider
[036] intention and purpose, as well as what is done or said, in order to ascertain what
[037] action follows and what punishment.²³

Notes

1. ‘ad,’ as supra 54, last line

2-3. Inst. 3.29.3

4. Supra i, 385

4-5. Inst. 3.29.3

6. ‘secus’

7. Inst. 3.29.3

8. Ibid.

9. Azo, Summa Inst. 3.29, no. 3; G’terbock, 148

10. D. 46.3.107

11-12. Azo, Summa Inst. 3.29, no. 4; reading: ‘[per] quasi traditionem;’ Azo: ‘quasi traditio videatur fieri per quotidianam patientiam’

13. Infra iii, 124, 167-8, 178

14. Supra 288, nn. 19-20, infra 290, n. 3

15. Br. and Azo, 164-5

16. Infra 299, 438, iv, 363

17. Supra 23, infra 372, 375, 384, 437

18. ‘et minora’: infra 290, 298, 338, 340; similarly ‘transgressiones sive praesumptiones,’ from line 31

19. As supra 283; infra iii, 338: if ‘ex certa scientia,’ ex maleficio; if ‘per ignorantiam vel imperitiam,’ ex quasi maleficio, and so Azo, Summa Inst. 4.5, no. 1. But infra iv, 280: if ‘ex certa scientia’ bound to restore damages to injured party; if ‘per imperitiam,’ not liable. Cf. Schulz in Seminar, ii, 47

20. Inst. 4.4. pr.; supra 140, infra 437

21. ‘ut’ for ‘et’; supra 283, infra 290, nn. 21-22, 438

22. Infra 290

23. Infra 372