pose of noting the mortgages situate in each town of the jurisdiction, with the buts and bounds described, and the names of the persons inscribed to whom they belong, an entry being made (tomando razon), by the escribano of the cabildo, within 24 hours, of each instrument which may be executed with respect to an annuity, Cedula, 31st January, 1768, [L. 3. tit. 16, lib. 10. Nov. Rec.34] where may be seen the judicious instructions to facilitate the execution of L. 3. tit. 15. lib. 5. Rec. [L. 1. tit. 16. lib. 10. Nov. Rec.], which regards the same object. 8th, That if the possessor or tenant of two entails obtained royal permission to impose an annuity on them, and they happen to be separated, the possessor of each shall be obliged to pay the pension (pro rata) to avoid frauds and law-suits; and if the permission is confined to only one entail, which may be ascertained by the tenor of it, it will be at the sole burthen of the tenant who may acquire it by right of succession, Salgado Labyrint. Credit. Part 2. cap. 9. a n. 1. ad. 25. But if the second possessor acquired one of the entails by eviction (eviccion), he shall not be obliged to pay the pension or annuity (la pension del censo); because the first possessor or tenant, by the defect of the thing and of his person, could not impose the incumbrance or obligation (gravamen), Salgado, ibid, n. 59; nor shall that mortgage subsist, although the successor may approve of and ratify it, Salgado, ibid. cap. 10. n. 33.

As to what regards the redemption of the annuity, 1st, It is [157] certain that it ought to be made with effective money, 35 in the same way as the imposition or charge. See Avendaño, c. 102. 106. and 107., by which the annuity creditor will not be considered as satisfied or paid if the debtor offer him voluntarily the capital in property or goods valued, which would not be the case in a concurso of creditors (juicio de concurso), Salgado, ibid, Part I. c. 22.36 2d, That if the debtor should form a concurso of creditors, the annuity creditor may demand the pensions and the capital, because here the redemption of the annuity (censo) is treated of, Salgado, ibid. Part 1. c. 19. and 20. n. 5. 3d, That if the nobility (grandes titulos), and knights (caballeros) shall take annuities upon their states (estados) with the obligation of redeeming them within a certain time, they shall enjoy double if they shall live in any place of their states, L. 66. c. 4. tit. 4. lib. 2. Rec. [L. 8. tit. 25. lib. 7. Nov. Rec.] 4th, That the towns, if there are any annuities against them, must apply two parts of the surplus of their propios to the redemption of them, and the third part for the payment of the arrears (atrasos), Decree, 23d May, 1767. [L. 14. tit. 15. lib. 10. Nov. Rec.] 5th, That if the annuity mortgage be destroyed, the annuity itself is extinguished,37 Avendaño, c. 6.

34 See Order in Council, 6th April, 1818, Appendix P.

35 Palacios refers to Ll. 2. 22, 23, 24. notas 8. and 9. tit. 15. lib. 10. Nov. Rec., on this subject.

36 Tom. 1. p. 176. ad. 180. Vide n. 33, 36, &c., and passim, cap. 22.

37 See L. 28. tit. 8. P. 5., which says, this is not the case when one-eighth of the property is saved or left.

The annuities assigned upon the revenue of the crown (juros ó censos reales), were reduced in 1727 to three per cent., Auto 6. tit. 15. lib. 5. Rec. [L. 4. tit. 14. lib. 10. Nov. Rec.] In 1732 the amount of the difference from five to three per cent. was appropriated to pay (dar cabimiento a) the royal annuities, and the residue to purchase and pay the principals, Auto 7. tit. 15. lib. 5. Rec.; [L. 5. tit. 14. lib. 10. Nov. Rec.] and by decree of 21st March, 1739,38 this difference was applied to pay the revenues (reditos) of the crown at the rate of three per cent.

38 Not in the Chronological Index of Cedulas, &c., of Nov. Rec.

TITLE VIII.

OF CONTRACTS (PACTOS) AND OBLIGATIONS IN GENERAL.

CAP. 1. HAVING treated of the right in the thing, it remains [159] for us to treat of the right to the thing; which, according to what was declared in Title I., arises from different species of obligations. Obligation is a legal tie or bond (vinculo) by which a person promises to do or to pay any thing. It is of two sorts, civil and natural. A civil obligation is, when he who contracts it remains bound by it in such a way, that although he should not be willing to comply with it, he may be thereby obliged and compelled to fulfil it. A natural obligation is, when the person who enters into it is obliged to fulfil it naturally, although he cannot be compelled to its performance by a court of law (en juicio), L. 5. tit. 12. P. 5. [L. 5. tit. 12. P. 5.]

Some obligations arise immediately from natural or from civil equity; and others, by means of an obligatory act. This is either lawful or unlawful: the first is called convention or contract; the second, crime.2

§1. A covenant or promise is the undertaking which men enter into, one with another by words or parol, and with the intention of obliging themselves by agreeing upon some certain thing which they are to give or to do, to or with respect to one another, L. 1. tit. 11. P. 5. [L. 1. tit. 11. P. 5.] These covenants are divided into pacts, (pactos) and contracts.

Contract is, every covenant which has a name and civil cause or consideration by its obligatory nature. Pact is every covenant destitute of a name and a determinate civil cause or consideration.3

At present pacts are confounded with the stipulations of the Romans, by reason of the solemnities used among them being laid aside,

1 Palacios says, this is called civil and natural, properly mixed, and he refers to L. 5. tit. 12 P. 5. for the definition; adding, that there are three sorts of obligations, the purely natural, purely civil, and mixed-of civil and natural, Wood, in his Inst. Civ. Law, book 3. ch. 1. p. 204., says, that a mixed obligation was the only sort that was defined by Justinian; which definition the learned civilian has given in the page (203), ante the one

cited.

2 Palacios says, a better explanation is, that obligations arise from contract and quasi contract; from crime and quasi crime; and from deliberate or solemn agreement or cove nant (see L. 1. tit. 1. lib. 10. Nov. Rec.); and from some other irregular causes.

3 A new covenant. Palacios says, "that a covenant (convencion), and promise (promesa), are not one and the same thing; and that the latter is the stipulatio or verbal contract of the Romans; and that there may be a promise without a covenant or agreement; as when one should make a promise, and it should not have been accepted." The above may be considered a distinction without a difference, when reference is had to what immediately follows in the text; and to L. 1. tit. 1. lib. 10. Nov. Rec.: to which last, the learned Professor, in the conclusion of his note upon this subject, also refers as the guide or governing law in Spain, in matters of covenant and pact.

neither do we admit the difference between promises of which the Roman law speaks, because amongst us every pact derives its force from the agreement and consent of the parties, which, in whatever way a person may appear to bind himself, must be observed, L. 2. tit. 16. lib. 5. Rec. [L. 1. tit. 1. lib. 10. Nov. Rec.]

§ 2. Every promise, therefore, is either valid, or void. A valid promise may be in three ways; pure, performable, at a certain day, or conditional, L. 12. tit. 11. P. 5. [L. 12. tit. 11. P. 5.] The pure [160] promise ought to be fulfilled immediately, unless it is attended with such circumstances as may require time; as to which the judge shall determine, L. 13. tit. 11. P. 5. [L. 13. tit. 11. P.

5.]

Those promises which are made performable at a day certain do not impose an obligation until the day hath arrived; and if the person who promised it should die in the meantime, his heirs shall be obliged to fulfil it for him, L. 14. tit. 11. P. 5. [L. 14. tit. 11. P. 5.] When the promise is to give or to do a thing every year, the day on which it is to be performed is understood to be the last of each year, and the first days of each year when the promise is to give or to do it all the years of one's life, L. 15. tit. 11. P. 5. [L. 15. tit. 11. P. 5.] This certainty may consist in the day being expressly appointed or in its not being left to be verified;5 in both cases the promise is valid, L. 12. tit. 11. P. 5. [L. 12. tit. 11. P. 5.] Conditional promises are not to be fulfilled, until the condition is performed, which if it precedes the promise, the fulfilment of the obligation is extended to the day of the death of the person who made the promise, L. 15. tit. 11. P. 5. ad fin., excepting in the four cases mentioned in L. 16. tit. 11. P. 5. [L. 16. tit. 11. P. 5.] The promise accompanied with an impossible condition, resolves itself into a pure one, and therefore is immediately obligatory; and the conditional one, which is contracted to be performed at a day certain, must, as well as the former, be verified in point of time, in order that the promise may be binding, L. 17. tit. 11. P. 5. [L. 17. tit. 11. P. 5.]

Any penalty may be annexed to promises or pacts in order that they may be more firm, which is called conventional if it is accessary to the agreement, and judicial if it is imposed in a suit at law (en juicio). The conventional penalty must be paid or satifised if the promise is not fulfilled at the time; and this payment or satisfaction discharges from the obligation', L. 35. tit. 11. P. .5 [L. 35. tit. 11. P. 5.] This

i

4 See the preceding note.

5 The example put in L. 12. tit. 11. P. 5., cited in the text, on this last point is, if a man should promise that a thing or sum of money should be done or paid by his heirs on the day of his death.

Palacios says that, impossible conditions render contracts null, although testaments are not vitiated thereby, except by a certain sort of impossible condition. See Wood's Inst. Civil Law, respecting conditions impossible, &c., p. 109. to 111., book 1. ch. 1.; also p. 108., cited.

7 L. 35. tit. 11. P. 5., says, that in such case, if the promise is not performed, at the time stipulated, it is at the option of the stipulator, or person to whom the promise is made, to demand the penalty, or to require the performance of the covenant.

penalty is due, although the promise may not be valid, unless it be contrary to law and good manners, L. 38. tit. 11. P. 5. [L. 38. tit. 11. P. 5.] or be to enforce the contract of matrimony, L. 39. tit. 11. P. 5. [L. 39. tit. 11. P. 5.], or usurious, L. 40. tit. 11. P. 5,. [L. 40. tit. 11. P5.] and that the promise is not valid by being extorted through fear, force, or fraud, L. 28. tit. 11. P. 5. [L. 28. tit. 11. P. 5.] The conventional penalty cannot comprehend all a person's property, nor exceed double the amount of the condition of the obligation or bond, L. 5. tit. 11.9 lib. 1. Fuero Real, and L. 247. Est.

A promise will be void either by reason of the persons who make the promise, by reason of the things which are promised, or on account of the mode or form of agreement.

By reason of the persons, 1st, The promise that is made by the madman and the idiot, (desmemoriado) is not valid, L. 4. tit. 11. P. 5. [L. 4. tit. 11. P. 5.] nor that by the minor of seven years, and even of fourteen; but if it should be advantageous to the latter (ú este), it will be valid L. 4. tit. 11. P. 5. [L. 4. tit. 11. P. 5.] 2d, Nor that made by the prodigal and the minor (huerfano) to their own injury, without authority of their curator, L. 5. tit. 11. P. 5. [L. 5. tit. [161] 11. P 5.] 3d, Nor that which is made between father and son, unless it relate to property called castrense, or to the obligation of dote, L. 6. tit. 11. P. 5. [L. 6. tit. 11. P. 5.] 4th, Nor the promise which is made in the name or behalf of another to a third person who is not under the power nor in the service of him in whose behalf such promise is made, except it be to the attorney, guardian, &c., Ll. 7. and 8. tit. 11. P. 5. [Ll. 7 and 8. tit. 11. P. 5.] or except the debtor, in the name of his creditor, should receive a promise from any one to satisfy the debt due by the former, in which case although he who promises is bound to the fulfilment of his promise, the creditor has no authority to demand its performance, but the debtor, who obtained the promise or obligation, L. 10. tit. 11. P. 5., [L. 10. tit. 11. P.5.]

By reason of the things promised, a promise is not valid. 1st, When that is promised which does not exist nor can exist, or is naturally impossible to be done, L. 21. tit. 11. P. 5. [L. 21. tit. 11. P. 5.;] but if the fruits of an estate, &c., are promised, which are yet to arise, they shall be payable the moment they are produced. And if any fraud shall be committed to impede the production, the obligation subsists or is binding by reason of the fraud, L. 20. tit. 11. P. 5. [L. 20. tit. 11. P. 5.] 2d, When holy or sacred things, &c., are promised or obliged, L. 22. tit. 11. P. 5., [L. 22. tit. 11. P. 5.] except those

8 But L. 28. tit. 11. P. 5., adds, that if the penalty has been willingly paid by the party under such circumstances, he shall not recover it back.

9 Tit. 18. is erroneously cited in the text; and L. 10. tit. 5. lib. 4. Fuero Real, contains this last provision.

10 And even then the minor would, it is presumed, be entitled to his privilege or benefit of restitution, to set aside, within four years after coming of age, which is twenty-five years by the Spanish laws, such prejudicial contracts.

11 The examples put by the law cited in the text, are the future or expected crops of a vineyard, or estate, the issue of a female slave, or young of cattle, &c.