NOVATION, civil law. 1. Novation is a substitution of a new for an old debt.
The old debt is extinguished by the new one contracted in its stead; a
novation may be made in three different ways, which form three distinct
kinds of novations.
2. The first takes place, without the intervention of any new person,
where a debtor contracts a new engagement with his creditor, in
consideration of being liberated from the former. This kind has no
appropriate name, and is called a novation generally.
3. The second is that which takes place by the intervention of a new
debtor, where another person becomes a debtor instead of a former debtor,
and is accepted by the creditor, who thereupon discharges the first debtor.
The person thus rendering himself debtor for another, who is in consequence
discharged, is called expromissor; and this kind of novation is caned
4. The third kind of novation takes place by the intervention of a new
creditor where a debtor, for the purpose of being discharged from his
original creditor, by order of that creditor, contracts some obligation in
favor of a new creditor. There is also a particular kind of novation called
a delegation. Poth. Obl. pt. 3, c. 2, art. 1. See Delegation.
5.-2. It is a settled principle of the common law, that a mere
agreement to substitute any other thing in lieu of the original obligation
is void, unless actually carried into execution and accepted as
satisfaction. No action can be maintained upon the new agreement, nor can
the agreement be pleaded as a bar to the original demand. See Accord. But
where an agreement is entered into by deed, that deed gives, in itself, a
substantive cause of action, and the giving such deed may be sufficient
accord and satisfaction for a simple contract debt. 1 Burr. 9; Co. Litt.
6. The general rule seems to be that if one indebted to another by
simple contract, give his creditor a promissory note, drawn by himself, for
the same sum, without any new consideration, the new note shall not be
deemed a satisfaction of the original debt, unless so intended and accepted
by the creditor. 15 Serg. & Rawle, 162; 1 Hill's N. Y. R. 516; 2 Wash. C. C.
Rep. 191; 1 Wash. C. C. R. 156, 321; 2 John. Cas. 438; Pet. C. C. Rep. 266;
2 Wash. C. C. R. 24, 512; 3 Wash. C. C. R. 396: Addis. 39; 5 Day, 511; 15
John. 224; 1 Cowen, 711; see 8 Greenl. 298; 2 Greenl. 121; 4 Mason, 343; 9
Watts, 273; 10 Pet. 532; 6 Watts & Serg. 165, 168. But if he transfer the
note he cannot sue on the original contract as long as the note is out of
his possession. 1 Peters' R. 267. See generally Discharge; 4 Mass.. Rep. 93;
6 Mass. R. 371; 1 Pick. R. 415; 5 Mass. R. 11; 13 Mass. R. 148; 2 N. H. Rep.
525; 9 Mass. 247; 8 Pick. 522; 8 Cowen, 390; Coop. Just. 582; Gow. on Partn.
185; 7 Vin. Abr. 367; Louis. Code, art. 2181 to 2194; Watts & S. 276; 9
Watts, 280; 10 S. R. 807; 4 Watts, 378; 1 Watts & Serg. 94; Toull. h.t.;
Domat, h.t.; Dalloz. Dict. h.t.; Merl. Rep. h.t.; Clef des Lois Romaines,
h.t.; Azo & Man. Inst. t. 11, c. 2, SS 4; Burge on Sur. B. 2, c. 5, p. 166.