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6 Harv. L. Rev. 184 (1892-1893)

handle is hein.journals/hlr6 and id is 194 raw text is: HARVARD LAW REVIEW.

W HENEVER there is a change in one of the parties, or in
the form of an obligation the substance of which remains
the same, there is said to be a novation. We have borrowed the
name from the Roman law, but the institution itself is of native
growth. Novation in the Roman law was effected by the stipu-
atio.  But we have nothing in our law corresponding to the
Roman stipulation. Novation, by a change in the form of the
obligation, as by the substitution of a specialty for a simple con-
tract, has existed in English law from time immemorial under the
name of merger. But our novation by a change of parties, whether
by the intervention of a new creditor (novatio nominis) or by
the substitution of a new debtor (novatio debiti), is a modern in-
stitution. The earliest judicial recognition of the doctrine seems
to be the oft-quoted opinion of Mr. Justice Buller in 1759: -
Suppose A owes B /ioo, and B owes C ..ioo, and the three meet,
and it is agreed between them that A shall pay C the Cioo: B's debt is
extinguished, and C may recover the sum against A.
That this doctrine had no place in the ancient common law
appears clearly from the following case of the year 1432: -
Roff. In case B is indebted to C in £20, and A buys a chattel of
B for £20, so that A is his debtor for so much; if A comes and shows
C how B is indebted to C in £20, and how A is indebted to B in £20
by reason of the purchase, and A grants to C to pay C the £20 which A
owes, and that B shall be discharged of his debt to C, and C agrees to
this, and B also, A shall now be charged to C for this debt by his con-
tract and own act.
 Quod COTESMERE, J., negavit, and said, although all three were of
one accord that A should pay the money to C, this is only a nudurm
tacun, so that for this C cannot have an action.
Rof. I say this is not afjactum nudum, but pactum vestitum, for there
was a contract between B and C, and also between A and B, so that this
accord between them is not pactum nudum. But when I grant to pay a
I The writer desires to acknowledge his obligations to Mr. Edmund A. Whitman,
whose article on Novation in 16 Am. and Eng. Encyc. of Law, 862, is, by far, the most
valuable essay upon the subject in our language.

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