tulero, id est si Titius te delegauerit mihi.

§ 131. Alia causa est eorum nominum quae arcaria uocantur. in his enim rei, non litterarum obligatio consistit, quippe non aliter ualent, quam si numerata sit pecunia; numeratio autem pecuniae re facit obligationem. qua de causa recte dicemus arcaria nomina nullam facere obligationem, sed obligationis factae testimonium praebere.

§ 132. Vnde (non) proprie dicitur arcariis nominibus etiam peregrinos obligari, quia non ipso nomine, sed numeratione pecuniae obligantur; quod genus obligationis iuris gentium est.

§ 133. Transscripticiis uero nominibus an obligentur peregrini, merito quaeritur, quia quodammodo iuris ciuilis est talis obligatio; quod Neruae placuit. Sabino autem et Cassio uisum est, si a re in personam fiat nomen transscripticium, etiam peregrinos obligari; si uero a persona in personam, non obligari.

§ 134. Praeterea litterarum obligatio fieri uidetur chirographis et syngraphis, id est si quis debere se aut daturum se scribat; ita scilicet si eo nomine stipulatio non fiat. quod genus obligationis proprium peregrinorum est.

owes me is entered in my journal as advanced to you, assuming that you are indebted to Titius and that Titius has substituted me for himself as your creditor.

§131. Transcriptive entries differ from mere entries of a person as debtor to cash; here the obligation is not Literal but Real, for money must have been actually paid, and payment of money constitutes a Real obligation. Consequently the entry of a person as debtor to cash does not constitute an obligation, but is evidence of an obligation.

§ 132. Accordingly, it is not correct to say that debits to cash bind aliens as well as citizens, because it is not the entry in the journal but the payment of money that constitutes the contract, a mode of obligation which is common to all the world.

§ 133. Whether transcriptive debits form a contract binding on aliens has been doubted with some reason, for this contract is an institution of civil law, as Nerva held. Sabinus and Cassius, however, held that transcription from thing to person forms a contract binding on an alien, though not transcription from person to person.

§ 134. Another Literal obligation is that created by chirographa and syngraphae, or written acknowledgments of debt or promises to pay, unaccompanied by stipulation. This mode of contract is proper to aliens.

One of the account books kept by the Romans, a nation of bookkeepers, was a waste or day book, called Adversaria, into which all transactions were entered as they occurred. At the end of each month the contents of the Adversaria were posted into the more formal journal, the Tabulae, or Codex accepti et expensi. According to Dionysius of Halicarnassus every Roman had to take an oath once in five years before the Censors that his book-keeping

was honest and accurate. On the subject of Roman book-keeping and the literal contract, see I. M. Voigt, Abhandl. der K. Sächs. Gesellschaft d. Wissenschaften, Bd. 10, 1887, p. 515, &c.

One species of Literal obligation, namely Expensilation, in the nature of a novation or transformation of a pre-existing debt into one of a stricter form, was effected by an entry in these domestic registers, and from Cicero, Pro Roscio Comoedo, c. 5, we may infer that the entry was binding even though it had not been transferred from the Adversaria to the Codex. The creditor, apparently, with the consent and by the order of the debtor, debited the latter with a certain sum in the books of the creditor (expensilatio). Afterwards a corresponding entry was made by the debtor in the books of the debtor (acceptilatio). The literal contract, however, appears to have been complete without the latter entry.

Apparently, the true contract was the entry in the creditor's book. The consent (jussus) of the debtor to this entry was necessary, but not restricted to any particular form. The entry in the debtor's book was evidence, but not the only admissible evidence, that he had assented to the entry in the creditor's book.

...

Theophilus, in his Greek version of the Institutes, gives the following account of the process : ἡ δὲ literis [ἐνοχὴ] ἐστὶ τὸ παλαιὸν χρέος εἰς καινὸν δάνειον μετασχηματιζόμενον ῥήμασι καὶ γράμμασι τυπικοῖς. . . . ἦν δὲ ταῦτα τὰ ῥήματα, ἅτινα καὶ ἐλέγετο καὶ ἐγράφετο τοὺς ἑκατὸν χρυσοῦς, οὓς ἐμοὶ ἐξ αἰτίας μισθώσεως χρεωστεῖς, σὺ ἐκ συνθήκης καὶ ὁμολογίας δώσεις τῶν οἰκείων γραμμάτων ; εἶτα ἐνεγράφετο, ὡς ἀπὸ τοῦ ἐνόχου ἤδη γενομένου ἐκ τῆς μισθώσεως, ταῦτα τὰ ῥήματα Ἐκ τῆς συνθήκης ὀφείλω τῶν οἰκείων γραμμάτων. Καὶ ἡ μὲν προτέρα ἐνοχὴ ἀπεσβέννυτο, καινοτέρα δὲ ἐτίκτετο, Theophilus, 3, 21. ' Α literal obligation was an old debt transformed into a new loan by certain solemn words and writings. The words which were spoken and written in the register were as follows: "The hundred aurei which you owe me on account of rent will you pay me on the convention and acknowledgment of your own journal?" Then followed, as if written by the person indebted for rent, these words: "I owe you that sum by the admission of my own journal." Whereby the pre-existing obligation was extinguished and a new one created.' [From the mention of solemn words' Theophilus is supposed to have confounded Expensilatio, which was independent of spoken words, with Stipulatio accompanied by a written record or CAUTIO.] The account of Theophilus clearly only applies to one form of

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expensilation, the transcriptio a re in personam. The use of this kind of transcriptio is obvious: it was a mode of converting Formless contracts into Formal contracts-equitable obligations into civil obligations: of metamorphosing claims recoverable by actions ex bona fide, e. g. conducti locati, empti venditi, which in many points favoured the defendant, into debts recoverable by the short and sharp remedy of the civil action of Condictio, which, when brought for certa pecunia credita, was the more formidable to a dishonest litigant, as it was accompanied by sponsio poenalis, whereby the vanquished party forfeited a third of the sum in litigation, in addition, if he was the defendant, to the original claim, 4 § 171.

A narrative of Cicero shows the employment and possible misemployment of this transcriptio. He relates how a purchaser was defrauded by a vendor, and in consequence of the form of contract had no redress. Stomachari Canius. Sed quid faceret? Nondum enim Aquilius collega et familiaris meus protulerat de dolo malo formulas, De Off. 3, 14. 'The purchaser was indignant, but he was helpless, for my colleague Aquilius had not then invented the action of Fraud.' It may occur to us, on hearing the story, that as the actio Empti was an action ex bona fide, that is, one in which the judex was empowered to consider allegations of bad faith, the defrauded purchaser would not have been without a remedy. But, as Savigny points out, Cicero had guarded against this objection by a certain feature which he gives to the narrative. Emit homo cupidus et locuples tanti quanti Pythius voluit, et emit instructos. Nomina facit, negotium conficit. The purchaser was eager and rich, he bought at the price the seller named, and he bought the gardens ready furnished. The contract is by expensilatio; the business is concluded.' Nomen, which sometimes signifies any debt, is here used, in a specific sense, for a debt created by Literal contract; accordingly, nomina facit implies that the purchase, as soon as concluded, had been novated, § 176, i. e. extinguished by metamorphosis into a ledger debt; so that the transaction was removed from the domain of equity to that of civil law, which in its primitive simplicity had no provision for dolus malus.

Transcription a persona in personam was the substitution or exchange of a debt owed by C to B, in discharge of a debt owed by B to A; or, at all events, the substitution of C in lieu of B as debtor to A. It is impossible to form an exact conception of the mode in which these transcriptions were operated without a greater

knowledge than we possess of the Roman method of book-keeping. Nomen facere, as we have just stated, is to contract a debt by literal obligation. Nomen signifies the name of the debtor, as in the line of Horace Scriptos nominibus certis expendere nummos; 'Recorded on his ledger to lend moneys to solvent borrowers.' In the business of bankers (argentarii), whose book-keeping of course was extremely regular, the Literal contract appears to have survived when it had fallen into desuetude in other quarters.

The word Transcriptitia may refer to the transfer involved in Novation: Savigny however prefers the following origin of the term. The Roman account-book (tabulae accepti et expensi), he supposes, was essentially a Cash-book; a record of incomings and outgoings of actual cash: i. e. the monthly or annual balance of the debits and credits ought to correspond with and explain the metallic contents of the cash-box or arca at the end of the month or year. This correspondence or agreement would be destroyed by the introduction of Fictitious loans (expensilatio) into the accounts, unless every such entry to the credit of the cashier or chest was neutralized and cancelled by a cross or opposite entry, of an equally fictitious character, to the debit of the chest or cashier. this device was adopted the balance of the book would coincide with the actual contents of the chest; and the fictitious entries would be called Transcriptitia because they were always double: because each was always accompanied by its shadow across the page. Verm. Schriften, 1, 205, &c.

But if

In the time of Justinian both of the modes of Expensilatio, properly confined to Roman citizens, had become obsolete; as also another form of Literal contract, the Syngrapha or Chirographum, available where either of the parties was an alien. Syngrapha and Chirographum, apparently, are synonymous, and signify any contract in writing, such contract in Greece being always ground to support an action, whatever its subject or form. In the Corpus Juris the term Chirographum generally signifies a document which is evidence of the existence or discharge of a debt, and the term Syngrapha occurs in the Greek Novellae of Justinian in the same sense.

The desuetude of Nomina transcriptitia was probably due to the invention of CONSTITUTUM, a Consensual contract, which instead of converting like Expensilatio an equitable obligation into an obligation of jus strictum, superadded a civil obligation to a previous obligation, whether equitable or civil [Ubi quis pro alio constituit

se soluturum, adhuc is pro quo constituit obligatus manet, Dig. 13, 5, 28]; and which with its excessively penal sponsio, 4 § 171, gave the creditor even a more effective remedy than the action on Expensilatio (Condictio for pecunia certa credita).

Arcarium nomen was the record, not of a fictitious loan, like nomen transcripticium, but of the counting out of money from the cash-box (arca), that is, of a genuine loan, and was, accordingly, a memorandum of a Real obligation.

The coexistence of Nomina Arcaria with Nomina Transcriptitia shows that entry in a Ledger did not operate a novation and convert a debt into a ledger debt, unless such effect was intended.

A stipulatio, unlike the entry in the journal or ledger, was not an invariable accompaniment of an advance of money (mutui datio, annumeratio); and, when it was employed simultaneously with annumeratio, unlike expensilatio, it always constituted the sole contract: there were not two contracts, a Real contract and a Verbal contract, but only a Verbal contract, and this without the intervention of Novation, Dig. 46, 2, 6, 1, and Dig. 46, 2, 7. Nam quoties, pecuniam mutuam dantes, eandem stipulamur, non duae obligationes nascuntur sed una verborum, Dig. 45, 126, 2. 'An advance accompanied by Stipulation does not produce two contracts, but one, a Verbal contract.'

Savigny's doctrine that personal execution (incarceration) of a judgment debtor (judicatus) was confined to actions brought on loans of money (annumeratio) accounts satisfactorily for a debt being sometimes left in its original form of a Real contract (mutuum), sometimes being converted into a Verbal contract (stipulatio), or Literal contract (expensilatio). When the interest of the borrower prevailed, the contract would take the form of stipulatio or expensilatio, with a milder remedy; when the interest of the lender predominated, the contract would retain the form of mutui datio, with its more stringent execution.

It may assist us in understanding the distinction of Formless and Formal contracts, Verbal and Literal, if, before we quit this subject, we cast a hasty glance at the corresponding institutions of English law.

In the eye of the English law, contracts are either Simple (parol), that is, enforceable only on proof of consideration, or Special, that is, binding by the solemnity of their form. Special contracts are either contracts under Seal or contracts of Record. A common species of Deed, or written contract under seal, is the Bond or Obligation, which, like Stipulatio, is used to secure the payment