igation. A man is bound in
law because and to the extent that he is bound in religion and not
otherwise and no more. To the Hindu lawyer a debt is not an obligation
merely. It is a sin the consequences whereof follow the debtor into
another world. Vrihaspati says: "He who, having received a sum lent or
the like does not return it to the owner, will be born hereafter in
his creditor's house a slave, a servant, a woman or a quadruped."
Narada says that when one dies without having paid his debt, "the
whole merit of his devotions or of his perpetual fire belongs to his
creditors." In short the debtor is looked on as one who wrongfully
withholds from the creditor the latter's property and hence as in some
sort a thief. The legal idea, so far as there is one, is not one of
obligation but of a property right in the creditor. One may suspect
that religious obligation arising from the detention of property is a
legal way of putting it in a polity in which social control is
primarily religious and religious precepts are turning into legal
precepts. At any rate the Hindus carry the idea of religious
obligation so far that a descendant is bound to pay the debts of his
ancestor in many cases whether he receives any assets of the ancestor
or not. The liability of the son to pay the father's debt is held to
arise from the moral and religious duty of rescuing the father from
the penalties attaching in a future state to non-payment of debts.
Accordingly if the debt is of such a kind that no penalties would so
attach, there is no religious duty and hence no obligation imposed
upon the descendant.

Roman law in its earliest stage was not unlike this. Agreements of
themselves were not cognizable by the tribunals. It was no ground for
summoning a defendant before the magistrate that he had made a promise
and had broken it. Agreements were matters for religion or for kin or
guild discipline. If one had called on the gods to witness his promise
or sworn to fulfil it, he was liable to pontifical discipline. The
presence of an impious oath breaker was a social danger and he might
be devoted to the infernal gods. As law replaced religion as the
controlling regulative agency, the old religiously sanctioned promise
becomes a formal legal contract. Thus in the strict law we get formal
contracts with their historical origin in religious duty, and formal
contracts with their historical origin in a legal duty created by a
real transaction of suretys