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Updated: May 16, 2025
"No novation in worship should be suddenly enacted, but that Synods, Presbyteries and Kirks should be advised with before the Assembly should authorize any change."
Sometimes indeed the first stipulation is avoided by novation even though the second is of no effect: for instance, if you owe Titius a sum, and he stipulates for payment thereof from a pupil without his guardian's authority, he loses his claim altogether, for you, the original debtor, are discharged, and the second obligation is unenforceable.
Among the older lawyers it was an established rule, that a novation was effected only when it was with that intention that the parties entered into the second obligation; but as this still left it doubtful when the intention was present and when absent, various presumptions were established as to the matter by different persons in different cases.
3 Novation is another mode of extinguishing an obligation, and takes place when you owe Seius a sum, and he stipulates for payment thereof from Titius; for the intervention of a new person gives birth to a new obligation, and the first obligation is transformed into the second, and ceases to exist.
We therefore issued our constitution, enacting most clearly that no novation shall take place unless the contracting parties expressly state their intention to be the extinction of the prior obligation, and that in default of such statement, the first obligation shall subsist, and have the second also added to it: the result being two obligations resting each on its own independent ground, as is prescribed by the constitution, and as can be more fully ascertained by perusing the same.
"Preventing any sudden alteration or innovation or other prejudice to the Church in either doctrine or worship or discipline or government thereof, now happily established." This was the formal and particular enactment of the principle laid down two generations earlier, when in 1639 the Church, disturbed by the Brownists, had ordained that "no novation in worship should be suddenly enacted."
But when the original debtor is the promisor, a second stipulation produces a novation only if it contains something new if a condition, for instance, or a term, or a surety be added, or taken away though, supposing the addition of a condition, we must be understood to mean that a novation is produced only if the condition is accomplished: if it fails, the prior obligation continues in force.
Albeit, in the National Covenant, the land is obliged to defend the reformation, and to labour by all means lawful to recover the purity and liberty of the gospel, by forbearing the practice of all novations introduced in the worship of God, or approbation of the corruptions of the public government of the kirk: yet was there given all the approbation required by law of the novation and corruption of Prelacy by hearing the Prelatic curates.
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