1. Praestatio eius quod debetur

" '[SJolvere' dicimus eum, qui fecit quod facere promisit":¹ we say that someone who does what he has promised "performs". Or, in the words of Voet: "Solutio...

est naturalis praestatio ejus quod debetur."² Every obligation imposes on the debtor a duty to give, to do or to perform (dare facere praestare oportere).³ When such performance is effected, the raison d'etre of the obligation has materialized. At the same time, the obligatory relation between the parties has come to its natural end. "Tollitur autem obligatio praecipue solutione eius quod debeatur" says Gaius;⁴ "an obligation is extinguished if the performance owed is made to the creditor", reads the German BGB.⁵ The debtor is released immediately and ipso iure; he does not have to avail himself of an exceptio when sued after having rendered performance.⁶ Details as to where, how and when performance had to be rendered

‘ UJp. D. 50, 16, 176; cf. also Pomp. D. 46, 3, 54.

" Commentarius ad Pandectas, Lib. XLVf Tit. 111,1.

³ Cf. supra, pp. 6 sq.

⁴ III, 168.

⁵ § 362 I.

'■ Kascr, RPr I, p. 636; Honscll/Maycr-Maly/Selb, p. 263.

748 could, in the first place, be determined by the contracting parties themselves; alternatively, the law provided certain rules dealing with the specific modalities of performance. Most of these rules had their origin in the equitable discretion accorded to the judge in the iudicia bonae fidei; based on and derived from the precepts of good faith as they were, they survived the centuries and commended themselves even to modern legislators. As in Roman law, these rules do, however, only have the status of what we call "ins dispositivum", i.e. the parties are entitled to make their own arrangements which may be better suited to their individual circumstances.

Obviously, the object of performance^[3819] had to correspond with what was contemplated in the contract.

Thus, performance could consist in the payment of a certain sum of money, in the handing over of an object, in the rendering of services or in the execution of some other (legal or factual) act. If a res mancipi was owed, mancipatio or in iure cessio had to be performed, with regard to the delivery of other objects the formless traditio was sufficient. In the case of dare obligations (for instance: the promise to deliver a certain slave),^[3820] the debtor was not released if a possibility existed that the creditor might be evicted.^[3821] Similarly, if a homo had been stipulated for and a statuliber (that is, a person who was to become free upon fulfilment of a certain condition) was delivered, the condictio^[3822] ^{^[3823] could still be brought by the creditor for a "proper" slave." Only when the condition failed was the debtor's obligation extinguished. The position was different as far as contracts of sale were concerned. Here the vendor merely owed "vacuam possessionem tradere", not transfer of ownership.^[3824] The purchaser was not entitled to expect more than an undisturbed position of habere licere; as long as he had provided that, the seller had discharged his obligation and the actio empti could not be brought against him.^[3825] Obviously, too, the creditor did not have to accept part-performance unless either a specific law^[3826] or the contract obliged him to do so.^[3827] If a debtor owed a specific sum of money and tendered payment in instalments only, the creditor was able to reject the first instalment without incurring the consequences of mora creditoris. 2.}

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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. Praestatio eius quod debetur

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