Pactum

An agreement; a pact. In the civil law, this term is applied to any agreement or convention not having a specific name, and which was without consideration; such an agreement would In the Roman law, with some exceptions, those agreements that the law does not directly enforce, but which it recognizes only as a valid ground of defence, were called pacta. Those agreements that are enforced — in other words, are supported by actions — are called contractus. The exceptions are few, and belong to a late period.

Hunt. Rom. Law, 375.

The term, as used in Latin phrases and maxims adopted by the common law, has often a more general signification, and is not restricted to the technical sense given above. See Nudum Pactum. Pactum constitutae pecuniae. An agreement for payment of money as appointed. A term designating in the civil law an agreement by which a person appointed to his creditor a certain day or a certain time, at which he promised to pay; or, simply, an agreement by which a person promises a creditor to pay him. Pactum or pactio is' any agreement other than a contractus. The institutes do not contain any definition of contractus nearer than the following, of obligatio; a legal bond which ties us down so that we must needs do something, according to the laws of our state.

Hunt. Rom. L. 281.

The pactum deconstitutomay be defined as a promise by any one to discharge an existing obligation of another on a day named, or to give security for its fulfilment. (Dig. 13, 5,28; Dig. 13, 5, 21, 2.) In what respect, then, does this informal agreement (pact) difierfrom the stipulation lfidejussio)1 Both Jidejussio and constitutum are accessory to an existing obligation, and in this respect are both contrasted with mandatum. In form, the difference between them is simply that one is made by, and the other without, interrogation of the surety. The only apparent distinction, then, is that^dejussio contemplated as possible an immediate liability of the surety; wliile the pactum de constitute postponed the liability of the surety to a future day. This difference, apparently trivial, rests upon a sound basis. In Jidejussio there need be no valuable consideration; but in the pact there was a consideration, — namely, the forbearance of the creditor to sue; for the essence of the contract was to give time to the debtor.

Hunt. Rom. L. 368.

Factum de nou petando

An agreement not to demand; an agreement between a creditor and his debtor, that the former will not demand from the This is not unlike the covenant not to sue of the common law. Pacta privata jure publico derogare non possunt. Private agreements cannot derogate from public law. Otherwise expressed, pactis privatorum juri publico non derogatur, ■ — agreements of private individuals do not derogate from public law. This maxim of the civil law imports that no private bargain or arrangement between individuals can validate any contravention of the law, or render that valid and binding which the law declares to be invalid and ineffectual. Thus an agreement not to object to an obligation for a debt incurred at gambling does not validate the obligation or bar objection, because the fixed rule of law is that such obligations cannot be enforced. Nor, in like manner, will such an agreement validate an obligation which proceeds ob turpem causam. This applies merely to contracts which are in themselves illegal, impolitic, or contra honos mores. It is not, therefore, to be regarded as absolute, for there are some legal provisions which may be derogated from by private bargain. Trayn. Max. Pacta quse turpem causam continent non sunt observanda. Agreements which embrace a base consideration are not to be observed. Contracts founded upon an immoral consideration are not binding. See Ex turpi causa non oritur actio. Paine forte et dure.

See Peine forte et dure.