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OBLIGATIONES
placed in 1586, and its whole height is about 132 feet, and without the base and modern ornaments at top about 83 feet. But the largest obelisk at Rome is that which was originally transported from Heliopolis to Alexandria by Constantine, and conveyed to Rome by his son Constantius, who placed it in the Circus Maxnnus. (Amm. Marc. xvii. 4.) Its present position is before the north portico of the Lateran church, where it was placed in 1588. Its whole height is about 14.9 feet, and without the base about 105 feet.
There are eight other obelisks at Rome besides those mentioned above, but none of them are of historical importance. There are also obelisks in various other places, as at Constantinople, Aries, Florence, Catana in Sicily, &c., some of which are works of Egyptian art, and others only imitations.
There are two small obelisks in the British Museum, which were brought by the French from Cairo. The preceding brief account is chiefly taken from Long’s Egyptian Antiquities^ vol. i. cc. 14, 15. London, 12mo. 1832.
OBLIGATIONES. Obligatio is defined (List. 3. tit. 13) to be " a bond of law by which we are under a necessity of releasing (solvendae) something according to the laws of our state.1” Ac-
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cording to Paul us (Dig. 44. tit. 7. s. 3) the substance of an obligatio does not consist in this, that its object is to make any corporeal thing (corpus) or scrvitus ours, but that it shall bind another person to give us something, or to do something, or to secure or make good something (ad dandum aliquid, vet faciendum* vd praestandum}. This *’ binding " is a " legal binding," that is, the party who fails to perform what he has engaged to do, is liable to legal compulsion ; in other words, the duty which he owes may be enforced by suit or action. The duty must consist in something that has a pecuniary value, or may be estimated in money (Dig. 40. tit. 7. s. 9. § 2): if the duty is not capable of such estimation, it is not a duty which can be enforced by legal process. An agreement which cannot be enforced because it xs not conformable to the principles of Roman Law, is not properly an obligatio, but still the Romans gave such agreement the name of Obligatio, when it was conformable to the principles of the Jus Gentium, and added the term Naturalis, by which it is opposed to Civilis and Praetoria or Honoraria. Obligationes Civiles were those which produced a right of action according to the Jus Civile ; Prae-toriae or Honorariae were those which owed their force to the jurisdiction of the Praetor. In the wider sense Civiles Obligationes comprehend Honorariae, inasmuch as the Edicta magistratuum belong to Jus Civile in. its wider sense. [Jus.] This is tho sense of Civiles when opposed to Na-turales Obligationes: Civiles Obligationes have the narrower sense when Civiles, Honorariae, and Naturales are opposed among one another. Those obligationes, which were viewed as based on the Naturalis Ratio, were peculiarly considered as bonae fidei ; and such obligationes were the foundation of bonae fidei actiones, of which the Roman Law recognised a limited number, as emti et venditi actiones ; locati et conducti actio ; .mandati, negotiorum gestorum, tutelae actiones ; commodati actio, and some others. The term ‘strictum jus (Cod. 5. tit. 13) is opposed to bona fides ; and stricti juris actiones are opposed to bonae fidei actiones. Viewed with reference to
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OBLIGATIONES.
the facts on which the law operated to give Obligationes a binding force, Obligationes arose from Contract and Quasi Contract, and Delict (malefi-rium, delictuni), and Quasi delict. (Inst. 3. tit. 13.) This division of Obligationes with respect to their origin was apparently viewed as exhaustive; though it is doubtful whether the Roman jurists really viewed every obligatio as included with one of these four divisions. For instance, it is doubtful whether the actio ad exhibendum was considered as an obligatio quasi ex contractu, or an obligatio quasi ex delicto. Gains divides Obligationes into these : ex contractu and ex delicto ; but he intends to comprehend the obligationes quasi ex contractu under those ex contractu, and obligationes quasi ex delicto under those ex delicto. In his Auroa (Dig. 44. tit. 7. s. 1) he distributes obligationes as to their origin into obligationes ex contractu, ex delicto, and ex variis causarum figuris ; and the ex variis causarum figuris comprehends the obligationes quasi ex contractu and quasi ex delicto ; indeed the term is comprehensive enough to comprehend all others, whatever they may be.
Contract (contractus) was made in four ways — Re, Verbis, Litteris, and Consensu.
As an example of an obligatio Re, Gains mentions Mutuum [mutuum]. Also, if a man received what was not due from a person who payed by mistake, the payer had his remedy for the recovery (condictio indebiti) just as if it were a case of Mutuum. But " this kind of obligation," observes Gaius (iii. 91), ""does not appear to arise from contract, because he who gives with the intention of payment, rather intends to dissolve or put an end to (distrakere) a transaction (negolium^ than to commence or to constitute (contrahere) a transaction."
To the contracts made Re, there also belong
COMMODATUM, DEPOS1TUM, and PlGNUS.
The Obligatio Verbis was contracted by oral question and answer between the parties. The form of words might be :—Dare Spondes? Spondeo (Sponden’tu istud? Spondeo. Plaut. Capt. iv. 2. 117.) Dabis? Dabo; Promittis ? Promitto; Fidepromittis ? Fidepromitto ; Fidejubes ? Fide-jubeo ; Facies? Faciam. The words Dare Spondes? Spondeo, were so peculiarly Roman that their legal effect could not be preserved, if their meaning was transferred into another language: nor could a valid obligatio with a peregrinus be made by the use of the word Spondeo. (Gaius, iii. 93, 179.) The evidence of such an obligatio must have been the presence of witnesses, (Cic. pro Rose. Com. 5.)
It is to this form of contract by question and answer (ex interrogalione et responsione} that the terms "stipulari" and "stipulatio" refer. The word " stipulari " properly refers to him who asks the question : si quis ita dari stipuletur; Post mortem meam dari spondes ; vel ita, Cum morieris, spondes ? The person who asked the question was Stipulator ; he who answered the question was Promissor, and he was said Spondere. (Gaius, iii. 100, 105 ; Dig. 45. tit. 1. s. 113. De Verborum OUigationibus.) Sometimes the whole form of words which comprises the question and the answer, is comprehended in the term Stipulatio (Dig. 45. tit. 1. s. 5. § 1), and the participle " Stipulata " is sometimes used in a passive sense. (Cic. pro Rose. Com. 5.)
A stipulatio which contained an impossible condition was invalid "(inutiUs). As the Stipulatio wag
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