Release

The creditor and debtor could reach an agreement that the latter would be released from the obligation resting on him. In early law such release was effected by means of a formal verbal acknowledgment of performance of an obligation created by stipulatio.

The stipulatory debtor formally asked his creditor whether the latter had received performance (habesne acceptum?), and the creditor formally answered that he had (habeo).^{^[1020]} This form of release, known as acceptilatio, was possible only if the relevant obligation arose from a verbal contract (contractus verbis).^{^[1021]} Where the obligation had arisen from any other source (sale, loan, delict and such like), the acceptilatio could be employed only after the obligation had been transformed into a contractus verbis by means of novatio. This transformation was effected by a special form of stipulatio called stipulatio Aquiliana.^{^[1022]}

In later law, release from an obligation could be effected by means of an informal agreement in terms of which the creditor undertook not to sue the debtor in court for the fulfilment of his obligation (pactum de non petendo). Where the debtor was released in this manner from an obligation arising from the ius civile, the exceptio pacti conventi was granted to him by the praetor as a defence against a claim for performance instituted by the creditor. In the case of an obligation bonae fidei arising from the ius honorarium, on the other hand, this exceptio was not necessary since the debtor was released as soon as the relevant informal agreement had been concluded.^{^[1023]}

With respect to consensual contracts (contractus consensu), it was recognized from an early period that the debtor could be discharged from his obligation by mere agreement, provided that nothing of the contract had yet been executed (re integra). It may be asserted that as in such contracts the consensus formed the basis of the relevant obligation, the subsequent agreement to release operated as a ‘reverse consensus' (contrarius consensus)^{^[1024]}

4.13.3

<< | >>

↑

Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Release

More on the topic Release: