Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
1673.
November,
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Titius charges or pursues upon a bond granted to him by Sempronius. Sempronius alleges the obligation is null, being suspended upon his own option; and where contractus confertur in meram et liberam voluntatem unius contrahentium, nulla oritur obligatio nisi voluerit; l. 3, D. de Contrahenda Emptione; l. 13, C. eodem; and that it depended on his arbitrament, he subsumed and proved, in so far as the bond contained an express clause, declaring the sum should be payable at the debtor's conveniency, and whereof he was absolute judge.
Answered,—This condition not being annexed to the obligatory part of the writ, but merely to the execution or exaction, it did not impede quin nata erat obligatio et verum suberat debitum. See Vinnius, ad parag. Mum, Institutionum, de Emptione et Venditione. Vide supra, 23d February, 1671, Viscount of Oxenfurd's daughter, (it is No. 148.) Injure verba debent cum effectu accipi; in contractibus non præsumuntur otiose adjecta, et ea semper sumenda est interpretatio ut actus potius valeat quam pereat seu distrahatur. See Hadington, 25th February, 1623, Lyon and Scot; and l. 12, D. de Rebus Dubiis; and the many other laws there quoted in the margin. And, therefore, albeit the sum in the bond was declared payable at his conveniency;* yet this clause is elusory, but must be reduced ad arbitrium boni viri, and be interpreted , secundum bonum et cequum. Which I think the Lords would follow either by examining the onerous cause of the obligement, and the other circumstances of the ability of the debtor
* This, Alisat, ad legem 125, D. de verborum significatione, expounds, rationally, so soon as his other debt is all paid.
and necessity of the creditor, and make them condescend what was acted, treated, and communed betwixt them, the time of the granting thereof; or would assign a competent day, betwixt and which the debtor should pay it, either in whole or in parcels: and so supply the defect of what was agreed amongst them, and render it effectual, since the debtor's own discretion will not. See Labeo's interpretation of this clause,—Do centum nomine dotis cum commodissimum esset; id est, quam primum sine turpitudine et infamia dari potest. L. 79, p. 1, D. de Jure Dotium. See this already marked by me, alibi. Wissembach, ad legem, 125. D. de Verborum Obligationibus.
