Novation

Novation (novatio) was the termination of an obligation by its replacement with a new one. In early law novatio was effected mainly by means of stipulatio, but in later times it could occur by way of an informal agreement (pactum).^[1032] Its importance lay in the fact that it could be used to transform any existing obligation into an obligation ex stipulatione.

As a prerequisite of novatio the performance due under the new obligation had to be the same as under the old one (idem debitum) otherwise both obligations would exist. Nevertheless, some new element (aliquid novi) had to be present in the second obligation as well otherwise the new obligation would be redundant and void. Such element could consist, for example, of the substitution of the creditor or debtor by another person, the introduction or removal of a condition or time clause, or the substitution of the object of the obligation (e.g. a sack of grain) by its monetary value.^[1033] Under the law of Justinian it was required, further, that the parties should have the intention to novate (animus novanti) and have clearly expressed such intention.^[1034]

By means of novatio the old obligation was extinguished by operation of law (ipso iure). At the same time, all real and personal collateral securities given in respect of the old obligation were terminated (unless expressly retained for the new obligation) and interest on the old obligation ceased to run.^[1035]

4.13.6