The origin of contractual liability

The Romans soon discovered that such a redeemable, pledge-like power of seizure was a convenient means of exerting pressure on the other person. They saw no reason why this pressure should be applied only to enforce payment of a monetary composition in the case of delict and not to enforce other performances as well.

(all this in order still to make redemption possible). It never seems to have happened in practice that a debtor was ultimately killed (thrown down from the Tarpeian rock) or (in the case of several co-creditors) cut into pieces (this probably referred only to his corpse); cf., for example, Cassius Dio, Historia Romatia IV, 17, 8). Nevertheless, the old story of the creditor demanding his pound of flesh from the debtor's body (immortalized by Shakespeare in his Merchant of Venice) appears to have its origin in the "partes secanto" of the XII Tables. Usually, the unredeemed debtor had to work off his debt in rhe service of the creditor.

Buckland/Stein, pp. 429 sqq.; Francis de Zulueta, "The Recent Controversy about Nexum", (1913) 29 LQR V31 sqq.; Jolowicz/Nicholas, pp. 164 sqq.; Kaser, Altrb'tnisches ius. pp. 119 sqq., 138 sqq., 233 sqq.; idem, RPr I, pp. 166 sq.; Liebs, RR. pp. 229 sqq.; Ulrich von Liibtow, "Zum Nexumproblem", (1950) 67 ZSS 112 sqq.; Maine, pp. 185 sqq.; Talamanca, ED. vol. 29, pp. 4 sqq.; Herman van den Brink, lusjasque (1968), pp. 158 sqq.; Wieacker, RR. pp. 336, 582. Recently, the existence of a specific nexum transaction has been denied by Okko Behrends, "Das nexum im Manzipationsrecht oder die Ungeschichtlichkeit des Libraldarlehens", (1974) 21 RIDA V3~l sqq. That the Germanic tribes knew institutions similar to nexum is testified by Tacitus, Germania XXIV, 2. As to the history of the penal bond in the English common law ("a sophisticated form of self-pledge"), see Simpson, History, pp. 88 sqq., 123 sqq.

^B Even if he paid what he owed, a formal counteract per aes et libram was necessary to discharge him. Otherwise the debtor would have remained obligatus. This solutio per aes et libram survived in classical law as a means of releasing the debtor from his debt; cf. infra p. 756.

For a comparative analysis of loan transactions in primitive legal systems, see Obrad Stanojevic, "Observations sur le pret dans les droits primitifs", in: Studi in onore di Bdoardo Volterra, vol.

disappeared^[16] and its function had been taken over by the informal contract of mutuum.

It is obvious that nexum and certain similar formal transactions of the ancient Roman law are the historical roots of what were later to be classified as contractual obligations. Yet at this early stage we can hardly speak of a law of obligations because the most important constituent element of the concept of an obligation was still missing: the wrongdoer/promisor did not "owe" the payment of a composition or whatever he had promised; such payment/performance was just a means of warding off the impending execution on his person. The law initially concerned itself only with the question of liability.^[17] Quite soon, however, this stage of the development was left behind. It gradually came to be recognized that the debtor was under a duty to make performance and that the other party had a corresponding right to claim such performance. Thus, obligatio in classical Roman law implied both "duty" and "liability": a relation existed in terms of which the debtor ought to (i.e. was "bound" to) perform whatever he had promised to perform (or, in the case of delict, to compensate the victim); only if he failed to comply with this duty did he become liable in the sense that his body and/or property were exposed to execution.

Yet, even at a mature stage, the Roman concept of obligatio always retained certain archaic features.^[18] The very word "obligatio" always reminded the Roman lawyer of the fact that, in former times, the person who was to be liable, that is, over whose body the creditor acquired the pledge-like power of seizure, was physically laid in bonds; and, even though this piece of symbolism was soon abandoned and the idea came to prevail that the debtor could be legally bound even if his body was not physically put into chains, the concept of an obligation, in the minds of laymen as well as lawyers, seems to have retained the connotation of some sort of invisible rope around the neck of the debtor, tying a specific debtor to a particular creditor.

least historically, nothing strange in this idea of "privity" of obligation. The practical consequences that were to flow from this will be discussed in Chapter 2 of this work. Further terminological evidence for the development sketched above is provided by the word used in classical law to indicate fulfilment of an obligation: the term "solvere" (= to loosen) refers back to the stage where payment was a means of securing release from power of seizure, that is, of loosening the (not merely metaphorical) bond around the debtor's body.^[20]

4.