The terms jus in personam and jus ad rem were not used in Obligatio. the ancient Roman law sources, but are of modern invention. The kind of right included in the term jus in personam was designated in the ancient Roman law by the term obligatio (a). Obligatio was defined in the ancient Roman law as "Juris vinculum, quo necessitate adstringimur alicujus rei solvendæ secundum nostræ civitatis jura." The term obligatio was used for all the connections of "the chain of law" binding the one person to the other. It indicated, as occasion required, either the right of the creditor at one end of the chain, or the correlative duty of the debtor at the other end of the chain. It was also used to denote the source of fact from which the legal connection arose; and in a still narrower sense it denoted the instrument or document, where such existed, by which the connection was created, or in which the evidence of the connection was preserved (b). tractu and An originating cause is necessary to create a jus in per- Rights arissonam or legal obligation between two persons, and is founding ex conin some act of the persons, or in some fact or transaction ex delicto. affecting both, upon which the law operates by attaching the right on the one side and the correlative duty on the other. The originating causes of obligation have been arranged by jurists, following the system of the Roman law, in the two principal classes of contracts and wrongs, contractus and delictum. And obligations according to the Roman law, and subsequently jura in personam, have been classified according to their source or origin, as arising ea contractu or quasi ex contractu, and ex delicto or quasi ex delicto (c). A delictum or quasi delictum here included amongst the sources of obligation consists, speaking generally, in an infringement of some pre-existing right, and creates an obligation by producing a right of action for the injury. The delictum by infringing the right destroys it, at least to the extent of the infringement, and converts it into a right in the person injured to sue for redress from the wrong (a) Warnkoenig, § 404; Austin's Jur. lxxvii, lxiii; 2 ib. 32; 3 ib. 186-197 and see as to the terms jus in rem and jus in re, ib.; Warnkœnig, § 95. : (b) Mackeldey, § 329; Warnkoenig, §§ 404, 406; Maine's Ancient Law, 323, 324. (c) Warnkoenig, § 405; Maine's Ancient Law, 323, 324. doer by process of law. Rights arising ex delicto are instituted for the purpose of securing other rights from injury and remedying the violation of them, and for this reason have been called sanctioning and remedial or secondary rights (a). The The sources of obligation comprised in the terms ex contractu and quasi ex contractu are original and independent sources, having no reference to, or dependence upon, other pre-existing rights. For this reason the rights arising from these sources have been classed as primary rights. term quasi ex contractu was used to denote various transactions originating obligations which could not be included in the term ex contractu, in consequence of the exclusively consensual character attributed to the transactions designated as contracts in the Roman law (b). It may be noticed that the class of rights arising ex delicto is wide enough to include the remedial right which arises upon the infringement of a right ex contractu or breach of contract (c). Rights arising ex contractu and ex delicto also differ essentially in the nature of the act or performance which forms the subject of the right. The performance which forms the subject of a right or obligation ex contractu is certain. It is prescribed with certainty in the transaction by which the right is created, and it is capable of an exact discharge by the person on whom it is incumbent. On the other hand, the subject of a right or obligation ex delicto, namely, the measure of redress to be adjudged by law for an injury, can only be ascertained by regular process of law, unless the parties themselves come to an accord respecting it; and it is not capable of being ascertained and discharged at the mere will of the person liable. A debtor can pay or tender the exact amount of his debt when it is due, and so discharge his obligation; but a person guilty of an assault, trespass, or breach of contract, incurs a liability to make compensation which he cannot estimate and discharge at his option. If an injured person declines to come to terms respecting the exact measure of his right to redress, he cannot be deprived of his recourse to the law. The measure of (a) Austin's Jur. lxxv, lxxxix, xcviii. (b) Ib. lxxv, lxxviii, lxxxix. (c) Ib. c, ci. the obligation is ascertained by the judgment of a court, and then, but not before, the party subject to the obligation is in a position to discharge his liability (a). The classes of rights distinguished as arising er contractu Contracts. and ex delicto may respectively be represented in the English law with sufficient accuracy by the expressions rights arising from contract and rights of action. The term contract in the English law is used with a meaning wide enough to include the sources of all the rights against the person which have been described as primary, in contrast with those described as secondary or remedial. It is also used, and perhaps more accurately, to denote the legal rights themselves which spring from those sources. In the latter sense, like the term obligatio, it is used to indicate not only the bond of law arising between and connecting the two parties to the contract, but also, as occasion requires, the right on the one side and the legal duty or liability on the other, which are comprised in the contract. Action. Rights of action are produced by a wrong done by a per- Rights of son to some pre-existing right of another, and consist in the right to sue for redress from the wrong-doer by regular process of law. They correspond, for the most part, with the obligations or jura in personam arising ex delicto, and which have been described as secondary or remedial. Rights of action are classified in the English law, according to the nature of the right infringed, into those arising from breach of contract and those arising from tort,-meaning by the latter term an injury to some right, of property or of the person, which has not arisen from a contract (b). tion of By the law of England, the subjects of property are dis- Classifica tributed into two kinds: things real and things personal; rights of which are subject to rules of law peculiar to each kind. Real property in English property includes, speaking generally, all the rights of pro- law. (a) Warnkoenig, §§ 96, 157. (b) Austin's Jur. xcix; 3 Blackstone's Com. 117; and see The Common Law Procedure Act, 1852, sched. B, where the statement of causes of perty of which the subject is land; personal property includes the rights of which the subject is goods and chattels. Personal property is further distinguished as being in possession, where a person has not only the right to but also the actual possession of the subject of property,—or in action, where a person has only the bare right without actual possession, but may obtain the possession by an action or suit at law, whence the term "choses in action" is applied to that kind of property. Under this system rights arising out of contract and rights of action, as described above, are not property in possession, but are included in the kind of property denoted by choses in action (a). Division of It is proposed to treat of the law of contracts in the folthe subject. lowing chapters (b): Chap. I. The formation of contracts. (a) 2 Blackstone's Com. 16, 389, 397, 442. (b) And see the Table of Contents. CHAPTER I. THE FORMATION OF CONTRACTS. SECTION I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. rent kinds CONTRACTS in the English law are generally divided into The diffe three kinds, distinguished by their different modes of for- of contract. mation, namely, Simple Contracts, Contracts under Seal, and Contracts of Record. It is proposed to treat of them in the above order, commencing with Simple Contracts, because the rules and principles relating to the formation of contracts of that kind are of a less technical and more elementary character than those relating to the other kinds of contract. Simple contracts may be divided into two classes, according to the sources or causes from which they arise,— namely, simple contracts arising from agreement, and simple contracts arising independently of agreement, the latter of which classes is commonly known as contracts implied in law (a). (a) Compare the terms ex contractu and quasi ex contractu in the civil law; see 3 Austin's Jur. 133, 223; Maine's Ancient Law, 344; also Code Civil, 1. 3, t. 3, "Des contrats ou des obli gations conventionnelles ;" and t. 4, |