Nomina ossibus inhaerent
Finally, assignment (cession)![319] "Nomina ossibus inhaerent" said the medieval lawyers in their metaphorical way:[320] the action arising from the obligation hinges on the bones and entrails of the creditor and can no more be separated from his person than the soul from the body.
If the obligation is something highly personal, a vinculum iuris that attains its individuality by virtue of having been created between two specific parties, it is clear that it could not be regarded as transferable in early and classical Roman law: the claims were taken as being inseparably related to the one individual creditor-debtor relationship.[321] However, each society in which commerce plays a role sooner or later has to face a strong demand to increase the circulation of credit; to us today it is a matter of course that the right to claim, i.e. the expectation to receive what is owed, constitutes an asset within the estate of the creditor,[322] which he should be able to sell, to exchange, or to donate and which, therefore, has to be easily transferable. All modern legal systems do indeed provide some way in which such a transfer can be effected.[323] Thus, the BGB boldly provides that "a claim may, by contract with another person, be assigned by the creditor to him (assignment). On the conclusion of the contract the assignee takes the place of the assignor."[324] Other systems have not gone quite so far: the code civil, for instance, attributes only a relative effect to the assignment—the agreement to assign the claim is valid between assignor and assignee; as far as third parties are concerned, the assignee is regarded as having acquired the claim only once the debitor cessus has been formally (i.e. through the agency of a bailiff) notified of the assignment, or if he has "accepted" the assignment by judicial or notarial document.[325] [326] But how did Roman law manage to do without cession? In order to accommodate the needs of commercial life the lawyers availed themselves of two other legal institutions to achieve results similar to an assignment: novation and procedural representation.1872.
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