L A W. 



675 



Obl.eitk.n 

 Of ill~cr.'.. 



Lw the person obliged, implies an opposite right in the ere- 

 f Scodir..!. ,!>,_ go that what is a burden in regard to the one, isa 

 " right with respect to the other ; and all rights founded 

 ... on obligations are called personal. There is this essen- 

 btt<xn ml ttal difference between a real and a personal right, that 

 tfdftnoa t jH, , r e t whether of property, or of an inferior kind, 

 "S* as servitude, entitles the person vested with it to pos- 

 sess the subject as his own. or if he is not in possession, 

 to demand it from the jwssessors ; whereas the creditor 

 in a personal right has only a jut ad rem, or a right to 

 compel the delrtorto fulfil'his obligation, without any 

 right in the subject itself. 



t. Obligations, when considered with regard to their 

 aue, were divided by the Romans into those arising 

 from contract, quan-contract, delict, and yuan-delict: 

 But there are certain obligation*, even full ami proper 

 ones, which cannot l)e derived from any of these sources, 

 and to which Lord Stair gives the name of obediential. 

 is, among others, the obligation of parents to ali- 

 ment or maintain their children ; which arises singly 

 from the relation of parent and child, and may be en- 

 forced by the civil magistrate. I "nder parents are com- 

 prehended the mother, grandfather, and grandmother, 

 m their proper order. This obligation on parents ex- 

 tn the providing of their issue in all the necessa- 

 ries of life, and giving them suitable education. It 

 ceaaes when the children can earn a livelihood by their 

 own indu-try ; but the obligation on parents to main- 

 tain their indigent children, and reciprocally on child- 

 ren to maintain their indigent parents, is perpetual. 



S. All obligations arising from the natural duty of 

 restitution fall under this class: Thus things gnen 

 upon the view of a certain event must be restored, it' 

 that event does not afterwards exist, t. g. what is given 

 hi contemplation of a marriage which never followed : 

 And on the same principle, one upon whose ground a 

 beose i* built or repaired by another, is obliged with- 

 out any oa*emnt to restore the expence laid out upon 

 it in so far as it has been profitable to him. 



4. A contract is the voluntary agreement of two or 

 more persona, whereby something is to be given or per- 

 formed upon one part, for a valuable consideration 

 either present or future on the other part. Contracts 

 were, by the Roman law, perfected either re, by the in- 

 tervention of things ; or by words ; or by writing ; or 

 by sole consent. The rent contracts of the Roman are 

 loan, c mmi.dtilr, dfpotitation , and pledge. 



5. Lottn, or mutw*m, is that contract which obli; 

 person who has borrowed any fungible subject from 

 another, to restoie to him as much of the same kind, 

 and of equal goodness. Whatever receives its estima- 

 tion in number, weight, or measure, is a fungible ; as 

 con i. wine, current coin, ore. The only proper sub- 

 jects of this contract are things which cannot be used 

 without either their extinction or alienation ; hence the 



of the thing lent is necessarily transferred by 

 to the borrower, who consequently must 

 run all the hazards either of its deterioration or its 

 according to the rule, rit peril stto domino. 



is a species of loan, gratuitous on the 

 pan of the lender, where the thing lent maybe n-'.l 

 without either hi perishing or its alienation. "Hence, in 

 this sort of loan, the property continues with the lend- 

 er ; the only right thr Ixirrower acquires in the subject 

 i* its use, lifter which he must restore the individual 

 thing that be borrowed. 



7. Drpnnlalton is a contract, bv which one who has 

 the ointody of a thing committen to him, (the deposi- 

 .) is obliged to restore it to the depositor. If a re. 



V.nl, t 



meant, 



1. Uttie* 



*. 

 i t i 



ward is bargained for by the depositary for his care, it Law 

 resolves into the contract of location. As this contract of Scotlan f ; 

 is gratuitous, the depositary is only answerable for the '"Y" 

 consequences of gross neglect ; but after the deposit 

 is redemanded, he is accountable even for casual mis- 

 fortunes. An obligation arises, without formal paction, 

 barely by a traveller's entering into an inn, ship, or 

 stable, and there depositing his goods, or putting up his 

 horses ; whereby the inn-keeper, shipmaster, or stabler, 

 is accountable, not only for his own facts and those of 

 his servants, (which is an obligation implied in the very 

 exercise of these employments,) but of the other guests 

 or passengers. 



8. Pledge, when opposed to wadset, is a contract, by and, f, 

 whidi a debtor puts into the hands of his creditor a spe- Pledge. 

 cial moveable subject in security of the debt, to be rede- 

 livered on payment. Where a security is established 



by law to the creditor, upon a subject which continues 

 in the debtor's possession, it has the special name of an 

 hypothec ; as in the case of owners of ships, who have 

 an hypothec on the cargo for the freight. 



9. There is nothing in the law of Scotland analogous Verbal con. 

 to the verbnrvm obligatio of the Romans, which was tracts - 

 created by the parties uttering certain verba srlennitt, or 



words of style : And therefore the appellation of verbal 

 may be properly enough applied to all obligations to the 

 constitution of which writing is not essential, which in- 

 cludes both real and consensual contracts ; but, as these 

 are afterwards explained, obligations by tvord may here 

 be restricted, to promises, and to such verbal agree- 

 ments as have no special name to distinguish them. 

 Agreement implies the intervention of two different 

 parties, who come under mutual obligations to one an- 

 other. Where nothing is to be given or performed but 

 on one part, it is properly called a promise, which, as it 

 is gratuitous, does not require the acceptance of him to 

 whom the promise is made. An offer, which must be 

 distinguished from a promise, implies something to be 

 done by the other party ; and consequently is not bind- 

 ing on "the offerer till it be accepted, with its limitations 

 or conditions, by him to whom the offer is made, after 

 which it becomes a proper agreement. 



10. Writing must necessarily intervene in all obliga- Contracts by 

 tions and bargains concerning heritable subjects, though "**V-" 

 they should l>e only temporary ; as tacks which, when 



they are verbal, last" but for one year. In these no ver- Writing PC. 

 bal agreement is binding, though it should be referred "^ ' 

 to the oath of the party ; for, till writin."- is adhibited, tlom co =." 

 law gives both parties a right to resile as from an unfi- cern ing he- 

 nished bargain ; which is called locus pcenitenticc. Verbal huge. 

 or nuncupative testaments are rejected by the Scotch 

 law ; but verbal legacies are sustained where they do 

 not exceed 1 00 Seals . 



11. All writings carrying any heritable right, and How writ- 

 other deeds of importance, must be subscribed by the ^.""j be 

 principal parties, if they can subscribe, otherwise by two executed 

 notaries before four witnesses specially designed, (or 

 ili-tingui.shed.) In the case where the parties them- 



-eh cs Mibscrilje, two witnesses are sufficient, and in all 

 the witnesses must also subscribe. Custom has 

 <i,ii-tnied obligations for sums exceeding 100 Scots, 

 to be " obligations of importance." 



12. A new requisite has been added to certain deeds Must be on 

 since the Union, for the benefit of the revenue : They ">n,,,ed 

 must be executed on stamped paper or parchment V 

 paving a certain duty to the crown. 



13. Certain privileged writings do not requirethe or- 

 dinary solemnities. 1. Holograph deeds (written by } 



the granter himself,) are effectual without witnesses. graph wti> 



ings. 



