1. Constitutum debiti

(a) The actio de pecunia constituta

A constitutum (derived from constituere = to fix, to appoint or to determine) is the informal^[2632] promise to pay an already existing debt, either one's own (constitutum debiti projrrii) or that of another (constitutum debiti alieni), on a specific date."^[2633] "Qui pecuniam debitam constituit se soluturum esse, in eum iudicium dabo" is what the praetor promised,^[2634] ^{^[2635] ^[2636] and an actio de pecunia constituta was therefore made available to the creditor.}

In comparison with the condictio it had one great advantage for the creditor: the judge was instructed to assess "quanti ea res est"; he therefore had considerable latitude in determining the amount owed by the debtor. More particularly, not only could he condemn the latter into the sum of money or the monetary equivalent of what he had promised; he was able to take into consideration the creditor's interest in being paid timeously, i.e. to award damages for the delay in payment. If, for example, A had promised by way of stipulation to pay ten aurei to B on 10 October, this was not a constitutum. The fixing of the date was part of the (original) contract, and constitutum presupposed an already existing obligation. If E defaulted, A could bring the condictio but was not able to recover his loss arising from the fact that performance had not been rendered in time.²³ If, however, it had become apparent, before 10 October, that B would not be able to pay in time, A and B could informally fix 1 November as the new due date. This was a constitutum debiti, and it was advantageous to B in that it granted him indulgence. A, in turn, could now claim his damages if B was still not able to meet the new deadline.

(b) Constitutum debiti alieni

Constitutum debiti was similar to novatio in that the parties were effecting a change to a rather significant detail of their original obligation; it did not, however, have the effect of a novation, since the action arising from the original obligation continued to exist²⁴ (but could be met with an exceptio as long as the new due date had not arrived).

The fact that the original obligation was not extinguished was of particular significance for the constitutum debiti alieni. If A agreed that C was to pay B's debt by a certain date, B continued to be liable, but A had acquired a second debtor. We are dealing with a cumulative assumption of debt, and the transaction constituted, in effect, a form of suretyship, for which a stipulation was not required. Justinian assimilated it with fideiussio by making available to the third party the beneficia divisionis, excussionis and probably also cedendarum actionum.^[2637] Thus it is not surprising to see that in the practice of the ius commune there was no place for an institution that did not in effect differ from suretyship; the Roman-Dutch authors, for instance, regarded the constitutum debiti alieni as obsolete:

"Sed postquam stipulationum solemnitas extra usum abierit, adeoque et ex nudis pactis obligationes oriri c[o]eperint,... hodie a fidejussione constitutum vix discerni potest.... Ideoque ct huius actionis nomen foro cessit, praesertim cum moribus nostris in universum actionum nomina libellis exprimi non soleant."^[2638]'¹

The constitutum debiti proprii,^[2639] also, was too closely connected with the intricacies of the formulary procedure of classical law to be of great significance in later centuries. There were not many cases where the acquisition of a second claim could be of practical value to the creditor. After all, discharge of the one also let the other obligatio fall away.^[2640] Also, the constitutum could not be used to overcome defects in the first obligation, for its validity continued to depend upon the validity of the pre-existing obligation, which it was designed to confirm; there was no such thing as an abstract constitutum.^[2641]

One brief, but interesting, episode within the development towards a general law of contract, however, deserves mention in this context.

In the Middle Ages, an obligatio naturalis was regarded as a sufficient basis for a constitutum. Since, as we shall presently see,^[2642] pacta nuda, according to the law of the Corpus Juris Civilis, engendered a naturalis obligatio, the constitutum could be used as a convenient means of rendering unenforceable consensual agreements (which did not fit into the category of either the contracts or the pacta praetoria or legitima) enforceable. In effect, therefore, one merely had to conclude a pactum nudum twice in order to elevate it to the status of a binding contract, or pactum vestitum. This curious institution was known as "pactum geminatum", and it was generally accepted by the legists ("Legisten") of the later 15th century.^[2643] But with the increasing recognition being given to the principle of ex nudo pacto oritur actio, the practical importance of pacta geminata, and with it the historical significance of the medieval constitutum, was bound to fade away.^[2644]

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Constitutum debiti

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