always
expressed in the mode of a question and answer. Do you promise to pay me
one hundred pieces of gold? was the solemn interrogation of Seius. I
do promise, was the reply of Sempronius. The friends of Sempronius, who
answered for his ability and inclination, might be separately sued
at the option of Seius; and the benefit of partition, or order of
reciprocal actions, insensibly deviated from the strict theory of
stipulation. The most cautious and deliberate consent was justly
required to sustain the validity of a gratuitous promise; and the
citizen who might have obtained a legal security, incurred the suspicion
of fraud, and paid the forfeit of his neglect. But the ingenuity of the
civilians successfully labored to convert simple engagements into the
form of solemn stipulations. The praetors, as the guardians of social
faith, admitted every rational evidence of a voluntary and deliberate
act, which in their tribunal produced an equitable obligation, and for
which they gave an action and a remedy.

2. The obligations of the second class, as they were contracted by the
delivery of a thing, are marked by the civilians with the epithet of
real. A grateful return is due to the author of a benefit; and whoever
is intrusted with the property of another, has bound himself to the
sacred duty of restitution. In the case of a friendly loan, the merit of
generosity is on the side of the lender only; in a deposit, on the side
of the receiver; but in a _pledge_, and the rest of the selfish commerce
of ordinary life, the benefit is compensated by an equivalent, and
the obligation to restore is variously modified by the nature of the
transaction. The Latin language very happily expresses the fundamental
difference between the _commodatum_ and the _mutuum_, which our poverty
is reduced to confound under the vague and common appellation of a loan.
In the former, the borrower was obliged to restore the same individual
thing with which he had been _accommodated_ for the temporary supply of
his wants; in the latter, it was destined for his use and consumption,
and he discharged this _mutual_ engagement, by substituting the same
specific value according to a just estimation of number, of weight,
and of measure. In the contract of _sale_, the absolute dominion is
transferred to the purchaser, and he repays the benefit with an adequate
sum of gold or silver, the price and universal standard of all earthly
possessions. The obligation of an