Novation According to the Law of Ancient Rome

Abstract

Many of modern legal concepts have their roots in the jurisprudence of Ancient Rome. The concept of novation is one of them. That is why it is vitally important to analyze the main provisions concerning novation that were stated in ancient first-hand sources in order to improve modern theory on that matter.

The concept of novation is one of the classic issues in the realm of law of obligations. Thus much attention was paid to it, and especially to the treatment of novation in Ancient Rome. The problem of novation was addressed in the writings of such scholars as Yu. Baron, K. von Czyhlarz, H. Dernburg, D. V. Dozhdyev, D. D. Hrimm, J. A. Pokrovs’kyy, B. Windscheid, and others.

The main objective of the paper is to provide an overview of the main provisions stated in ancient Roman first-hand sources on the matter of novation and to suggest some practical implications that might be entailed from those provisions.

In Ancient Rome novation is deemed to be a substitution of one obligation with another, or, in other words, a transformation of debt into some new obligation. The conclusion is made that both the primary and the new obligation had to be unilateral. Thus the author states that bilateral obligation was not able to be turned into unilateral one through the novation. Also the elements of the novation are defined. They are: (a) the existence and validity of the former obligation; (b) the existence and validity of the new obligation; (c) the difference between the former and the new obligation; (d) clearly an undoubtedly expressed intention of the parties to renew the obligation. Special attention is paid to the problem of novation under some special condition. The legal consequences of invalidity of the former or new obligation are also discussed.

Despite the seeming similarity of the definitions of novation in Antient Rome and in modern jurisprudence, the Roman concept of novation was much broader, especially because it encompassed the substitution of parties and the transformation of the obligation due to commencement of action.