THE DIGEST OR PANDECTS. BOOK II.
TITLE I. CONCERNING JURISDICTION.
1. Ulpianus, Rules, Book I.
The duties of him who has the right of dispensing justice are very
extensive; for he can grant the possession of estates, place the parties in
possession, appoint guardians for minors who have none, and designate judges
2. Javolenus, On Cassius, Book VI.
He to whom legal jurisdiction is given is also held to be invested with
all the powers necessary for its exercise.
3. Ulpianus, On the Duties of Quæstor, Book II.
Official authority is either simple or mixed. Simple authority invests
the magistrate with the right of inflicting the death penalty upon persons who
are violators of the law, which is also designated "power". Mixed authority,
which embraces legal jurisdiction, consists of the right of granting possession
of property. Jurisdiction includes the power of appointing a judge.
4. The Same, On the Edict, Book I.
The right to order a bond to be executed by a prætorian
stipulation, and to place a party in possession, rather belong to authority
than to jurisdiction.
5. Julianus, Digest, Book I.
It was established by the custom of our ancestors that he only can
delegate jurisdiction who possesses it in his own right, and not through
delegation by another.
6. Paulus, On the Edict, Book II.
And this is because jurisdiction is not given to him in the first place,
and has not been conferred upon him by law, which only confirms that which has
already been delegated; and therefore, if anyone who has delegated his
jurisdiction should die before the business over which jurisdiction has been
delegated to him had begun to be transacted; Labeo says that the delegated
authority is abrogated, just as it is in other cases.
7. Ulpianus, On the Edict, Book HI.
"If a person maliciously destroys a notice which has been entered in the
register of an official, or written on papyrus, or any other substance, and
which has reference to the general jurisdiction of the said official and not to
any special matter; judgment should be rendered against him for fifty aurei,
and anyone may bring suit for the same."
(1) Slaves and sons of families also are affected by the terms of this
edict; and the Prætor includes both sexes.
(2) If anyone should cause this damage before the notice has been
published or while it is being published, the words of the Edict will be
without effect; but Pomponius holds that the principle of the Edict is
applicable to such a case.
(3) If the offence has been committed by slaves who are not defended by
their masters, or by persons who are in poverty, corporeal punishment shall be
(4) Malice is mentioned in the words of the Edict, because if anyone
should commit such an act through ignorance or stupidity, or by the order of
the Prætor himself, or through accident, he will not be liable.
(5) He who removes the document, even though he may not destroy it, is
also liable under this Edict which includes both him who performs the act
himself and him who orders another to perform it; but if anyone performs it
without malice by the direction of another who was actuated by malice, the
latter will be liable; and if both of them act maliciously both will be liable;
and if several persons commit the act, whether they destroy documents, or order
this to be done, all will be liable.
8. Gaius, On the Provincial Edict, Book I.
And this applies to such an extent that it will not be sufficient for
only one of them to pay the penalty.
9. Paulus, On the Edict, Book HI.
If the entire body of slaves belonging to anyone should deface a
register, the Edict does not treat this offence as it would a case of theft,
where the master who wishes to defend the action pays as much in the name of
one slave as a freeman would be compelled to pay, for then no action will lie
against the others; the reason for which is perhaps that, in this instance, the
offended dignity of the Prætor must be vindicated, and several acts are
understood to have been committed; in the same manner as when several slaves
have perpetrated a wrong, or have caused damage, because several acts have
taken place, and not merely one, as in the case of theft.
Octavenus says that in this instance relief ought to be granted to the
master, but this can only be maintained where the slave maliciously brings it
about that the register shall be destroyed by another, because then there is
only one conspiracy, and not several acts. Pomponius states the same thing in
the Tenth Book.
10. Ulpianus, On the Edict, Book HI.
He who presides over the administration of justice ought not to render
judgment in his own case, or in that of his wife or children, or of his
freedmen, or of any others whom he has with him.
11. Gaius, On the Provincial Edict, Book I.
Where one person brings several actions against another and the amounts
of the different claims demanded therein, if taken separately,
are within the jurisdiction of the judge, but the entire sum exceeds it,
it was the opinion of Sabinus, Cassius, and Proculus that the actions could be
tried before him; and this opinion was confirmed by a Rescript of the Emperor
(1) Where, however, the rights of actions are reciprocal in their
character, and one party claims an amount under the limit, and another one over
it, he who claims the smaller sum can proceed before the same judge; so that it
may not be in the power of my adversary, if he wishes to annoy me, to prevent
me from trying the case before the same judge.
(2) Where an action is brought by a number of persons at the same time,
as for instance for the partition of an estate, the division
of common property, or the establishment of boundaries, should we in
• order to ascertain the jurisdiction of the judge who has cognizance of
the case, consider the value of the separate shares, which is the opinion of
Ofilius and Proculus for the reason that each party is bringing suit for his
own share; or should the entire value of the property rather be considered
because the whole of it is in court and may perhaps be adjudged to one person?
This is the opinion of both Cassius and Pegasus, and in fact it seems the more
12. Ulpianus, On the Edict, Book XVIII.
Municipal magistrates have no authority to inflict severe punishment
upon a slave; the right of moderate castigation cannot, however, be denied
13. The Same, On Sabinus, Book LI.
He who orders anyone to act as judge must be a magistrate.
(1) A magistrate, or he who is invested with any authority, (as for
instance, a Proconsul, a Prætor, or any other official who governs a
province) cannot appoint a judge on the day on which he becomes a private
14. The Same, On the Edict, Book XXXIX.
It is an accepted rule which we make use of in law, that if anyone of
higher, or of equal rank, submits himself to the jurisdiction of another, the
latter can administer justice for and against him.
15. The Same, On All Tribunals, Book II.
If, through error, anyone appears before one Prætor while
intending to appear before another, none of the proceedings which have been
instituted will be valid, for no one is permitted to say that they agreed upon
the judge; since, as Julianus stated, those who are in error do not agree. For
what is so contrary to agreement as error, which always reveals ignorance?
16. The Same, On All Tribunals, Book HI.
The Prætor is accustomed to delegate his jurisdiction, and either
delegate all or a portion of the same; while he to whom the right of dispensing
justice has been delegated, exercises it in the name of him who appointed him,
and not in his own.
17. The Same, Opinions, Book I.
As the Prætor can delegate his entire jurisdiction to one person,
he can also delegate it to several, or he can do this with reference to a
particular case; and especially where he has a good reason, for example,
because he appeared as the advocate of one of the parties before becoming a
18. Africanus, Questions, Book VII.
If it is agreed upon by the parties that another Prætor than the
one who had jurisdiction of the case should hear it, and before applying to him
one of them should change his mind, there is no doubt that he cannot be
compelled to abide by an agreement of this kind.
19. Ulpianus, Trusts, Book VI.
In a case where an unmarried woman had undertaken a defence before a
competent judge and was defeated, and afterwards married a man who was subject
to a different jurisdiction, the question arose whether the judgment of the
former court could be executed? I have said that it could, because judgment had
been rendered before her marriage; but if this had occurred after the judge had
taken cognizance of the case, and before judgment, I hold the same opinion,
namely that the decision of the first judge was properly rendered. This rule
should be observed generally in all cases of this description.
(1) When the amount is made the subject of inquiry with reference to
jurisdiction, the sum claimed must always be considered, and not that which is
20. Paulus, On the Edict, Book I.
A judge who administers justice beyond his jurisdiction may be disobeyed
with impunity. The same rule applies if he wishes to dispense justice where the
amount is beyond his jurisdiction.
EACH ONE MUST HIMSELF USE THE LAW WHICH HE HAS ESTABLISHED FOR
1. Ulpianus, On the Edict, Book HI.
The Edict is characterized by the greatest equity and is without just
cause of complaint by anyone, for who will refuse to be judged by the same law
which he himself applied, or caused to be applied to others?
(1) "If anyone invested with magistracy, or other authority has
established a new rule against any party, he must himself be judged by the
same, when his adversary demands it. Where anyone has obtained the application
of a new law before an official invested with magistracy, or other authority,
and subsequently some adversary of his demands it, he shall have his case
decided against him by the same
law; that is to say, that whatever anyone thinks to be just with
reference to another party he must suffer to prevail against himself as
(2) Moreover, these words, "What he who administers justice has
established", we must accept according to the effect, and not according to the
words; and therefore if anyone wishes to render a decision and is prevented
from doing so, and his decision should not have any effect, the Edict does not
apply, for the word "established" denotes something which has been perfected, a
wrong which has been consummated and not merely begun; and therefore if anyone
administers justice between parties over whom he has no jurisdiction, since the
proceedings are void and his judgment has no force, We think that the Edict
does not apply; for what does an attempt amount to when no injury resulted?
2. Paulus, On the Edict, Book III.
The malice of the presiding judge is punished by this Edict; for, if
through the ignorance of an assessor the law was interpreted in a different
manner than it should have been, this should not affect the magistrate, but the
3. Ulpianus, On the Edict, Book III.
When anyone has obtained an unjust decision against another, the same
rule shall be applied to the party alone, where this took place on his own
motion; but if he did not ask for it, it cannot be enforced against him. But
where he obtained it, whether he made use of any rule or merely had permission
to avail himself of it, but did not do so, he will be punished under this
(1) If my procurator made this unjust demand, the question arises to
whom this same rule should be applied. Pomponius thinks to me alone, that is if
I delegated my authority to him for an especial purpose, or ratified it. Where,
however, the guardian or curator of an insane person or of a minor makes such a
demand, he himself shall be punished by this Edict. The same rule shall be
observed against the procurator if he was appointed in a matter in which he was
(2) This penalty is incurred by all who are included in the provisions
of the Edict, not only by the petitioner who was injured by him, but by every
one whomsoever who institutes proceedings at any time.
(3) If anyone for whom you are surety has obtained an order of court
prohibiting any debtor from filing an exception against him, and you wish to
file one in the matter in which you become surety; neither he nor you should
obtain the same; although in the meantime you may suffer injury if your debtor
is not solvent. But if you yourself come under the terms of the Edict, the
principal debtor may plead the exception, but you cannot do so; and the penalty
to which you are liable will not affect him, and hence you will have no right
of action on mandate against him.
(4) If my son, while a magistrate, should come within the terms of this
Edict, will the Edict be applicable in any actions which I may
bring in his behalf? I do not think so, as otherwise my condition will
become worse on his account.
(5) When the Prætor says: "He must be judged by the same rule", is
this penalty transmitted to the heir? Julianus stated that the action should
not only be refused to him, but also to his heir.
(6) He also stated, and not without reason, that he was liable to the
penalty of the Edict, not only with reference to rights of action in which he
was involved when he came within the terms of the Edict, but also with
reference to all those which were acquired for him subsequently.
(7) Julianus thinks that money already paid under such circumstances
cannot be recovered, as there was still ground for payment under natural law,
which prohibits recovery.
4. Gaius, On the Provincial Edict, Book I.
The Prætor very properly and justly inserted this exception:
"Unless one of the parties has acted unjustly against some one who himself had
acted in the same way against another." And, indeed, where a magistrate desires
to sustain the Edict, or a litigant wishes to obtain the benefit of it, he
might render himself liable and incur the penalty prescribed by the Edict.
WHERE ANYONE REFUSES OBEDIENCE TO A MAGISTRATE RENDERING JUDGMENT.
1. Ulpianus, On the Edict, Book I.
It is permitted to all magistrates, with the exception only of
Duumviri, to protect their administration by means of penalties in
accordance with their official rights.
(1) He is presumed to refuse obedience to a magistrate having
jurisdiction, who declines to execute what has finally been determined; as for
example, where he will not allow someone to remove personal property from his
possession, but permits it to be taken or carried away; and if he opposes the
subsequent proceedings, it is then considered that he does not obey.
(2) If an agent, guardian, or curator refuses to obey a magistrate, he
himself is punished, and not the principal or the ward.
(3) Labeo says that not only the defendant, but also the plaintiff, if
he does not obey, is liable under this Edict.
(4) This suit is not for a sum which corresponds to the interest of the
party who brings it, but is limited to the amount of damages sustained; and as
it includes a mere penalty it is extinguished after the lapse of a year, and
does not lie against the heir.
TITLE IV. CONCERNING CITATIONS BEFORE A COURT OF JUSTICE.
1. Paulus, On the Edict, Book IV.
To cite anyone before a court of justice is to summon him for the
purpose of trying a case.
2. Ulpianus, On the Edict, Book V.
Neither a Consul, a Prefect, a Proconsul, nor any other magistrate who
exercises authority, and has the power of restraining others and ordering them
to be confined in prison, can be summoned to court; nor can a pontiff be
summoned while performing a religious ceremony; nor can those be summoned
either, who on account of the sacred character of the place cannot leave it;
nor anyone employed in the service of the State who is riding along the public
highway upon a horse belonging to the government.
Moreover, a man cannot be summoned who is being married, nor can the
woman to whom he is being united, nor a judge while in the exercise of his
judicial functions, nor any person who is trying his own case before the
Prætor, nor anyone while conducting the funeral rites of a member of his
3. Callistratus, Judicial Inquiries, Book I.
Nor can those who are attending a funeral be summoned, which appears to
be established by a Rescript of the Divine Brothers.
4. Ulpianus, On the Edict, Book V.
The same rule applies to those who are obliged to be present in court in
some certain place for the purpose of litigation, as well as to insane persons,
(1) The Prætor says: "That no one without my permission can summon
to court his parents, his patron or patroness, or the children or parents of
his patron or patroness".
(2) By the word "parent" one must here understand those of both sexes.
The question, however, arises whether this term may be indefinitely extended?
Some hold that it only applies as far back as the great-great-grandfather, and
that other ascendants are called "ancestors". Pomponius stated that this was
the opinion of the ancient authorities; but Gaius Cassius says that the term
applies to all ascendants without exception; which makes it more honorable, and
this rule has very justly been adopted.
(3) Labeo held that those also should be considered parents who have
become such in slavery, and not, as Severus said, that the term should only
apply to instances where children are legitimate; so that where a son has been
begotten in promiscuous intercourse, he cannot bring his mother into court.
5. Paulus, On the Edict, Book IV.
This is for the reason that the mother is always certain, although she
may have been given to promiscuous intercourse; but the father is he whom the
marriage indicates as such.
6. The Same, Sentences, Book I.
No one can cite his natural parents into court, for the same reverence
must be preserved for all parents.
7. The Same, On the Edict, Book IV.
A man can summon with impunity the parents of his adoptive father, as
they are not really his parents, since he is only cognate to those to whom he
is also agnate.
8. Ulpianus, On the Edict, Book V.
A man cannot summon his adoptive father to court as long as he is under
his control, which results rather from the right of paternal authority than
from the order of the Prætor; unless the son has castrense peculium,
and in this instance he can be permitted to do so where proper cause is
shown, but he cannot summon his natural father while he is a member of an
(1) The Edict mentions the "patron" or the "patroness". Those are to be
considered patrons who have manumitted a slave, or who have detected collusion;
as for instance, where someone in a preliminary judicial proceeding had been
declared to be a freedman, when in fact he was not; or where I have sworn that
the party in question is my freedman; just as, on the other hand, I am not to
be considered a patron if judgment is rendered against me; or where, if I
tender the oath, the party swears that he is not my freedman.
(2) If, however, I have compelled my freedman or freedwoman to swear not
to marry, I can be brought into court; and Celsus indeed says that no right
over such a freedman passes to my son during my lifetime.
Julianus, however, holds the contrary, and many adopt his opinion; so
that in an instance of this kind it may happen that a patron can be summoned,
but his son, being innocent, cannot be.
9. Paulus, On the Edict, Book IV.
He, also, who has manumitted a slave under the terms of a trust cannot
be brought into court, although he may be summoned to force him to manumit a
10. Ulpianus, On the Edict, Book V.
If, under this rule, I purchase a slave upon the condition that I will
manumit him, and he obtains his liberty by the Constitution of the Divine
Marcus, I cannot be cited, as I am his patron; but if I purchase him with his
own money, and have broken faith with him, I shall not be considered his
(1) Where a female slave is forced to prostitute herself against the
condition of her sale, she will have the vendor as her patron if she was sold
under the condition that, "She would become free if she were forced to
prostitute herself". But if the vendor, who reserved the right to take
possession of her by seizing her, himself prostitutes her, since she still
obtains her freedom, she does so through him who sold her, but
it is not proper that any honor should be shown him, as Marcellus holds
in the Sixth Book of the Digest.
(2) We also consider a man a patron, even though he may have forfeited
his civil rights, or where his freedman has lost his; as for instance where
arrogation took place in a clandestine manner, since, as he must have concealed
his status from him by whom he was arrogated, his act does not seem to be such
as to entitle him to be considered freeborn.
(3) If, however, he has acquired the right of wearing gold rings, I
think he should never fail to manifest respect for his patron, even though he
may be qualified to exercise all the functions of a freeborn
person.1 The case is different if he is restored to all the
privileges of birth, for the Emperor can make a man free born.
(4) Anyone who is manumitted by an organized body, a corporation, or a
city, can summon any member of the same to court, for he is not the freedman of
any of them in particular. He must, however, show respect to all collectively;
and if he wishes to bring an action against a municipality or a corporation, he
must ask permission to do so under the Edict, although he may intend to summon
one who has been appointed the agent of the others.
(5) By the terms "the children and parents of the patron and patroness",
we must understand persons of both sexes.
(6) Where a patron has been reduced to the condition of a foreigner
through the penalty of deportation, Pomponius is of the opinion that his
privilege is forfeited; but if he should be reinstated, he will again enjoy the
benefit of the Edict.
(7) The adoptive parents of a patron are also excepted, but only so long
as the adoption lasts.
(8) If my son has been given in adoption, he cannot be brought into
court by my freedman; nor can my grandson, who is born in an adoptive family.
But where my emancipated son adopts a son, a grandson of this kind can be
summoned, for he is a stranger to me.
(9) According to Cassius, we. may understand that the term "children",
like that of "parents", extends beyond the great-great-grandson.
1 The early Romans wore rings of iron, which they employed as
signets. The custom is said to have been introduced from Asia into Greece, and
thence into Italy. None but freemen were allowed this privilege, and afterwards
the grant of the jus annuli aurei, or right to wear a gold ring
presented by the Emperor, rendered a manumitted slave to a certain extent a
freeman. The rights of the patron were not, however, annulled under these
circumstances, as they were by the legal fiction called "natalibus
restitutio", or restoration to his original condition of freedom, which was
presumed to be the birthright of every individual.
Under the Republic, the jus annuli aurei was a token of rank
possessed only by senators, ambassadors, magistrates, and knights. It was
special badge of the eguites, still, its bestowal did not ipso facto
place the recipient in the body of knights, unless he possessed the
necessary census qualifications.
Conviction of a crime, or the forfeiture of civil rights entailed the
loss of the jus annuli. In the later days of the Empire the privilege
was greatly extended, and all soldiers and citizens of whatever station were
permitted to enjoy it. — ED.
(10) If a freedwoman has a child by her patron, neither she nor her son
can bring the other into court.
(11) If the children of a patron have brought a capital accusation
against a freedman of their father, or have claimed him as a slave, no honor is
due to them.
(12) The prætor says that, "No one can summon them without my
permission". It is permitted, however, if the action brought against the patron
or his parents is not one involving infamy or shame, for in every instance good
cause should be established; as sometimes in an action involving infamy, as
Pedius holds, a freedman ought to be allowed to summon his patron, if he has
done the former a serious injury; for example, scourged him.
(13) This respect should always be shown to a patron, even if he appears
as the guardian, curator, defender, or agent of another; but where the guardian
or curator is interested, he can be summoned with impunity, as Pomponius says,
and this opinion is the better one.
11. Paulus, On the Edict, Book IV.
Although the prætor does not state that he will render judgment
for a penalty where proper cause is shown, still Labeo says that his authority
must be exercised with moderation; as for instance, if the freedman changes his
mind and abandons his suit; or if the patron having been summoned does not
appear; or if he has been summoned with his own consent; even though the terms
of the Edict do not concede this.
12. Ulpianus, On the Edict, Book LVII.
If a freedman, in opposition to the Edict of the Prætor, should
summon to court the son of his patron whom the patron himself has under his
control, it should be held that, if the father is absent, relief should be
granted to his son who is under his control, and that a penal action, that is
to say one for fifty aurei, will lie against the freedman.
13. Modestinus, Pandects, Book X.
As, generally speaking, we cannot summon persons to whom respect should
be shown, without an order of the prætor.
14. Papinianus, Opinions, Book I.
Where a freedman is accused by his patron, and he, being ready to defend
himself, has frequently urged the Governor of the province to hear his case; it
is not considered that, by so doing, he has summoned his patron who accused
15. Paulus, Questions, Book I.
A freedman presented a petition against his patron without
concealing the fact that he was his freedman; and the question arose whether,
if he obtained an Imperial Rescript in accordance with his wishes, the penalty
of the Edict would be remitted? I have answered that I do not think that the
Edict of the Prætor is applicable in this instance, for the reason that
he who presents a petition to the Em-
peror or to a Governor, is not considered to have summoned his patron to
16. The Same, Opinions, Book II.
The question has arisen whether a guardian can, in the name of his ward,
summon his patroness, without the permission of the prætor? I have
answered the question by stating that he can summon his patroness in the name
of his ward, without the prætor's consent.
17. The Same, Sentences, Book I.
Where anyone has given a bond in court for the appearance of another he
is obliged to produce him. Again, where he has promised in an instrument which
has been recorded that he will produce the party in question, even though he
may not have given a bond in court, he will, nevertheless, be forced to produce
18. Gaius, On the Law of the Twelve Tables, Book I.
Many authorities have held that it was not lawful to summon anyone to
court from his own house; because the house of every individual should be for
him a perfectly secure refuge and shelter,1 and that he who summons
a person therefrom, must be considered as having employed violence.
19. Paulus, On the Edict, Book I.
It is certain that a party is sufficiently punished if he does not
defend his case, and keeps himself concealed, for the reason that his adversary
is placed in possession of his property. But Julianus says that if he shows
himself, or appears in public, he can be legally summoned.
20. Gaius, On the Law of the Twelve Tables, Book I.
There is no doubt that a man can be lawfully summoned from his vineyard,
the bath, or the theatre.
21. Paulus, On the Edict, Book I.
Although a man who is in his own house may sometimes be summoned to
court, still, no one should be forcibly removed from his residence.
22. Gaius, On the Law of the Twelve Tables, Book I.
It is not permitted to summon girls who have not arrived at puberty, and
who are subject to the control of another.
(1) A man who is summoned should be dismissed in two instances; first,
when anyone undertakes his defence; and second, when the controversy has been
settled before the parties have come into court.
23. Marcianus, Institutes, Book III.
Where a freedman is common, that is to say, has several patrons, he
should petition the prætor to permit him to summon anyone of his patrons,
or he will be liable under the Prætorian Edict.
1 This is the undoubted origin of the familiar maxim, "A
man's house is his castle", generally attributed to Coke. — ED.
24. Ulpianus, On the Edict, Book V.
An action for fifty aurei can be brought against him who violates
these provisions, but it cannot be brought for, or against an heir, nor after a
year has elapsed.
25. Modestinus, On Punishments, Book I.
Where a freedman has summoned his patron to court without permission
being granted under the Edict, on complaint of the patron he will be liable for
the above-mentioned penalty, that is to say, for fifty aurei; or he may
be chastised by the Prefect of the City, as lacking in respect, if it is
ascertained that he has no property.
WHERE ANYONE WHO IS SUMMONED DOES NOT APPEAR, AND WHERE ANYONE SUMMONED
A PERSON WHOM, ACCORDING TO THE EDICT, HE SHOULD NOT HAVE SUMMONED.
1. Ulpianus, On the Edict, Book I.
Where anyone who is summoned, gives as a surety for his appearance in
court a person not subject to the jurisdiction of the magistrate before whom he
himself is summoned; such a surety is held not to have been given, unless he
especially renounces his privilege.
2. Paulus, On the Edict, Book I.
Anyone who is summoned before the prætor or any other judicial
officer in any matter whatsoever, should appear, in order that it may be
ascertained whether the magistrate has jurisdiction or not.
(1) Where anyone who has been summoned does not appear, he shall be
sentenced to pay a fine in proportion to the authority of the magistrate, where
proper cause exists; but allowance must be made for men's ignorance. Again, if
the plaintiff has no interest in his adversary appearing in court at that
particular time, the prætor can remit the penalty; for example, because
the day was a holiday.
3. Ulpianus, On Sabinus, Book XLVII.
Where anyone has promised to appear in court but does not mention the
penalty to which he will be liable if he should not appear, it is certain that
suit can be brought against him for a sum equal to the plaintiff's interest;
and this Celsus also stated.
PERSONS WHO ARE SUMMONED MUST EITHER APPEAR, OR GIVE BOND OR SECURITY TO
1. Paulus, On the Edict, Book I.
It is provided by the Edict, "That where a surety is given that a party
will appear in court, the property of the former must be ample,
the position of the defendant being taken into consideration, except
where the two are closely related, for then it directs that anyone can be
accepted"; as, for instance, where a party is offered as surety for his parent
2. Callistratus, On the Monitory Edict, Book I.
The same rule applies to the patroness, or to the children, the wife, or
the daughter-in-law of the patron; for anyone of these persons can give a
surety who must be accepted; and where the plaintiff refuses to accept him,
being aware that the parties are nearly related, an action for fifty aurei
3. Paulus, On the Edict, Book IV.
The reason for this is, that where persons are nearly related, any
surety is accepted as being sufficiently solvent.
4. Ulpianus, On the Edict, Book LVIII.
Where anyone promises to produce two persons in court, and he produces
one and not the other, he is held not to have kept his promise, as one of them
has not been produced.
No ONE CAN FORCIBLY REMOVE A PERSON WHO HAS BEEN SUMMONED TO COURT.
1. Ulpianus, On the Edict, Book V.
The Prætor published this Edict to restrain by the fear of
punishment those who rescue by violence persons who have been summoned
(1) And then Pomponius has stated that where a slave commits an offence,
a noxal action should be granted unless he committed it with the knowledge of
his master; for in this instance the master must defend the action without
being permitted to surrender the slave.
(2) Ofilius is of the opinion that the provisions of the Edict do not
apply where the person summoned to court is exempt; as for example, a father, a
patron, and the other persons above enumerated. This opinion seems to me to be
correct; for, indeed, if he who summoned him was guilty of an illegal act, he
who liberated him was not.
2. Paulus, On the Edict, Book IV.
For although both parties, the freedman who summoned his patron, and he
who liberated him by force, violated the Edict, the condition of the freedman
is made worse; because, in an action of this kind he takes the part of
plaintiff. The same equitable reason applies to a party who is summoned to a
place other than the one to which he should have been summoned. It can,
however, be stated more positively that he who had the right to refuse to
appear is not held to have been liberated by force.
3. Ulpianus, On the Edict, Book V.
When anyone rescues a slave who has been summoned to court, Pedius
thinks that the Edict is not applicable; since the slave is not a person who
can be summoned. What then shall be done? Proceedings must be instituted to
(1) Where anyone liberates a party summoned before a judge of inferior
jurisdiction the penalty of the Edict shall not be imposed.
(2) Where the prætor states "He released him by force"; does this
mean that the act was committed merely with violence, or with malice also? It
is sufficient if the act be perpetrated with violence, even though malice does
4. Paulus, On the Edict, Book IV.
The term "liberate" is one of general application, as Pomponius says for
to "carry off" is to remove by seizure with the hands; but to "liberate" can be
done in any way whatsoever; as for example, if anyone does not remove a party
by force, but causes delay to prevent him appearing in court, so that the day
set for bringing the action goes by, or the property in question is lost by
lapse of time, he is held to have liberated him; even though he did not do so
bodily. But, if he retained him in some place, and did not abduct him, he is
liable under the provisions of the Edict.
(1) Again, if anyone liberates a party who has been summoned for the
purpose of annoyance, he is considered to be liable under the Edict.
(2) The prætor says: "He must not act maliciously to enable him to
be released"; for this can be done without malice when there is good cause for
5. Ulpianus, On the Edict, Book V.
Where anyone has effected a rescue through the agency of another, he is
liable under this clause, whether he was present or absent.
(1) An action is granted against anyone who has liberated a party by
force, and the amount of damages is not based upon what was actually lost, but
the value of the property in dispute is fixed by the plaintiff; and this
provision was added, so that it might be apparent that if he brought action
without proper grounds, he could still recover this penalty.
(2) The plaintiff must also show that the rescue which was made
prevented the defendant from appearing in court, but if he was nevertheless
produced, the penalty cannot be imposed, since the words are only applicable
where some act was performed.
(3) The action is in factum, and is of such a character that
where several have committed a wrong it can be brought against each one of
them; and the party who was liberated will still remain liable.
(4) The right of action is also granted to heirs if they have any
interest in making use of it; it is, however, not granted against an heir, or
after the expiration of a year.
6. The Same, On the Edict, Book XXXV.
If he who has released a debtor by force makes payment, he does not
exempt the latter from liability, because he pays the penalty of his own
WHAT PERSONS ARE COMPELLED TO GIVE A SURETY, AND
WHO CAN MAKE A PROMISE UNDER OATH, OR BE BOUND
BY A MERE PROMISE.
1. Gaius, On the Provincial Edict, Book V.
The term "to give a surety" is derived from the same origin as to
furnish security, for as "to satisfy" is said of him whose wish we comply with,
so "to give security" has reference to our adversary when he provides for what
is desired by us, and when under this name we make him secure by giving
2. Ulpianus, On the Edict, Book V.
The surety offered for the appearance of a party in court is considered
to be a man of property, not only on account of his means, but also with
reference to the ease with which he may be sued.
(1) When anyone gives a surety for his appearance in court to a person
who is not capable of bringing an action, the giving of the surety is of no
(2) The prætor says: "Where anyone summons to court his father,
his patron, his patroness, the children or parents of his patron or patroness,
or his own children, or anyone whom he may have under his control, or his wife,
or his daughter-in-law, any surety whosoever for their appearance in court
shall be accepted".
(3) Where the prætor says: "or his own children"; we understand
that those are meant who are descended from the female sex; and we extend this
privilege also to the father, not only when he is his own master, but also when
he is under anyone's control; and this Pomponius also stated. A son can be
given as a surety by his father, even though he may be under the control of
someone else. By "daughter-in-law" we must also understand
granddaughter-in-law, and so on, for succeeding generations.
(4) Where the prætor says: "Any surety whosoever shall be
accepted", this merely relates to his financial resources, that is to say, even
if he is not wealthy.
(5) When the prætor grants an action against a surety who promised
that a party would appear in court, he does so for the amount of the property
in question. But whether this has reference to the actual value of the article,
or a definite sum, is something which we must examine. It is the better opinion
that a surety is liable for the actual value, unless he became bound for a
3. Gaius, On the Provincial Edict, Book I.
Whether the action is for double, triple, or fourfold damages, we hold
that one and the same surety is liable for the entire amount, for the reason
that the property is understood to be worth that much.
4. Paulus, On the Edict, Book IV.
If the party who gave a surety for his appearance in court should die,
the prætor ought not order him to be produced. Still, if he should
ignorantly order this to be done, or if the party should die after his order,
and before the day set for his appearance, no action can be permitted. If he
died after the day set for his appearance, or loses his right of citizenship, a
suit can legally be brought against him.
5. Gaius, On the Provincial Edict, Book I.
Where anyone becomes the surety for a party who has already been
condemned, and afterwards died, or has lost his Roman citizenship, an action
can, nevertheless, properly be brought against the surety.
(1) When anyone refuses to accept a sufficient surety for the appearance
of another in court, who, it is perfectly evident, is solvent; or if there is
any doubt on this point and he is proved to be solvent, an action for injury
can be brought against him; for, indeed, it is not an ordinary wrong for a man
to be brought into court who can furnish a perfectly solvent surety. The surety
who was not accepted can also bring suit for the injury done to himself.
6. Paulus, On the Edict, Book XII.
Where a bond or an undertaking is given, which is defective, it is held
that it is no bond at all.
7. Ulpianus, On the Edict, Book XIV.
If the solvency of the surety is not denied, it should be said that he
has the privilege of objecting to the jurisdiction of the court, and as the
plaintiff may fear that he will make use of his right; we must ascertain what
the law is. The Divine Pius, (as Pomponius states in his Book of Epistles,
Marcellus in the Third Book of the Digest, and Papinianus in the Third Book of
the Questions), set forth in a rescript to Cornelius Proculus, that the
plaintiff might justly reject such a surety, but that if he was unable to find
any other, he could warn him not to use his privilege, if suit was brought.
(1) When security is required, and the defendant cannot readily obtain
it where the action is brought, he can be heard, if he is ready to give
security in another city of the same province. Where, however, the security is
voluntary, he cannot have recourse elsewhere; for he who has imposed upon
himself the necessity for security does not deserve such consideration.
(2) Where security has not been given, and the property for which it is
required is personal, and the party is liable to suspicion; the article should
be deposited in court if the judge approves of this, or security is furnished,
or the suit is brought to an end.
8. Paulus, On the Edict, Book XIV.
It is customary for litigants to agree upon the day mentioned in the
stipulation, and if this is not done, Pedius thinks that it is in the power of
the stipulator to appoint a reasonable time to be determined by the judge.
(1) Where anyone offers a woman as a surety, he is not held to have
given a sufficient one; nor can a soldier, or a minor under twenty-five years
of age be accepted, unless these persons act as sureties for themselves; as,
for instance, where they act as their own agents. Some authorities indeed,
think that where dotal land is claimed by a husband, the wife can become a
surety on her own account.
(2) Where a person who, before judgment was rendered, offered himself as
surety that it would be paid, is ascertained to be a slave; the plaintiff is
entitled to relief and a new bond must be executed. The same consideration must
be shown to a minor under twenty-five years of age, and probably to a woman, on
account of her inexperience.
(3) If the surety for the payment of the judgment becomes the heir of
the stipulator, or the stipulator that of the surety, a new bond must be
(4) Guardians and curators who are obliged to give security for the
property of their wards, must be sent before the municipal magistrates, because
the security is necessary. The same rule applies where property, the usufruct
in which has been created, is to be restored to the owner; and also to the case
of a legatee, who must give security that, "If he is evicted from the estate,
he will restore the legacies and whatever excess he may have received, under
the Falcidian Law". The heir also has a right to be heard in a case where he is
sent before a municipal magistrate for the purpose of giving security to
legatees. It is clear that the heir, if through his own fault a legatee has
already been placed in possession and has failed to provide security, petitions
for the legatee to surrender possession, stating that he is ready to give
security in a municipal town, he shall not be permitted to do so. The case is
different, however, if the legatee had already been placed in possession
without the negligence or fraud of the heir.
(5) A party is ordered to swear that he is not actuated by feelings of
malevolence when he summons his adversary to a municipal town, for fear that
perhaps he may have the intention of annoying him when it is possible for him
to give security at Rome. Some persons, however, are excused from taking this
oath, as for instance, parents and patrons. He, however, who is sent before the
municipal magistrates must swear: "that he cannot give security at Rome, and
that he can do so in the place where he asks to be sent, and that he does not
do this for the purpose of annoying his adversary". He cannot be compelled to
swear, "that he is not able to give security elsewhere than in that place",
because if he can not obtain security at Rome and can do so in several other
places, he will be forced to perjure himself.
(6) This permission then can be obtained when just cause seems to exist,
but what course should be pursued if the party previously refused to give
security in the municipal town? In this instance he ought
not to obtain permission, since it was his own fault that he did not
give security in the place where he now desires to go.
9. Gaius, On the Provincial Edict, Book V.
Where an arbiter is appointed for the examination of sureties and his
award appears to be unjust to either party, an appeal can be taken from it,
just as it can be done from the decision of a judge.
10. Paulus, On the Edict, Book LXXV.
If the sureties are declared to be sufficient by the arbiter, they must
be considered as solvent, because otherwise a complaint could be brought before
a competent judge.
(1) Where a party, for any reason, rejects sureties approved by the
arbiter, or accepts others who have been rejected, much more should he be
content with those whom he accepted of his own will. If, in the meantime, any
great calamity should befall the sureties, or they should be reduced to great
poverty, where proper cause is shown other security must be given.
11. Ulpianus, On the Edict, Book LXXV.
Julianus says: "If before I direct you to bring a suit for the recovery
of land, and being about to do this, you take sufficient security, and
afterwards you begin the suit under my direction, the sureties will be
12. The Same, On the Edict, Book LXXVII.
It is agreed by all authorities that where an heir is appointed under a
condition, and has possession of the estate during the existence of the
condition, he must give security to the substituted heir for the delivery of
the estate. If the condition should not be fulfilled, the substituted heir
acquiring the estate can claim the same, and if he obtains it, an action can be
brought on the bond. The prætor himself, where proper cause is shown, is
frequently accustomed to order the stipulation to be made before the condition
is fulfilled, and before the day arrives when the petition can be filed.
13. Paulus, On the Edict, Book LXXV.
Where several parties are substituted, a bond must be given for each one
14. The Same, Opinions, Book II.
The son of a family undertakes the defence of his father during his
absence; I ask whether he should give security for the payment of the judgment?
Paulus replies that anyone who acts in defence of an absent person, even though
he be his son or his father, must furnish security to the party asking it under
the terms of the Edict.
15. Macer, On Appeals, Book I.
It must be remembered that the possessors of real property are not
compelled to give security.
(1) By such a possessor is to be understood one who possesses land
either in the country or in the city, either wholly, or in part. He also is
understood to be a possessor who holds land subject to the payment of rent to
the State, that is, an emphyteutic estate; and he also who has the mere
ownership is considered to be a possessor. Ulpianus, however, stated that he
who has only the usufruct, is not a possessor.
(2) A creditor who has accepted a pledge is not a possessor, even though
he may have possession of the article, or whether it has been delivered to him,
or is held by the debtor at the will of the creditor.
(3) Where real property is given by way of dowry, both the wife and the
husband are understood to be possessors on account of their possession of said
(4) The case is different with a party who has the right of personal
action for the recovery of land.
(5) Guardians, whether their wards or they themselves are in possession,
are considered possessors; and the same rule applies where only one of several
guardians is in possession.
(6) If you bring suit against me for land of which I am in possession;
and judgment is rendered in your favor, and I take an appeal; am I still to be
considered the possessor of said land? It may be very properly stated that I am
the possessor of the same, because I still hold it; nor does it make any
difference that I can subsequently be deprived of my possession.
(7) To ascertain whether a party is, or is not a possessor, the time
when a bond was required must be considered; for just as the party is none the
worse who has sold his possession after giving a bond, so he who takes
possession after a bond has been executed obtains no advantage.
16. Paulus, On the Edict, Book VI.
He who has promised under oath to appear in court, is not held to have
committed perjury if he fails to do so for some good reason.
TITLE IX. IN WHAT WAY SECURITY MUST BE GIVEN IN A NOXAL ACTION.
1. Ulpianus, On the Edict, Book VII.
Where anyone has promised that a slave on whose account a noxal action
is brought, shall be produced in court, the prætor says "that he must
produce him in the same condition in which he was at the time when legal
proceedings were instituted".
(1) Let us consider what the words "in the same condition" mean. I
think, in fact, that he is in the same condition who does not do anything to
prejudice the case of the party who brings the suit. Labeo states that if the
slave should cease to belong to the party who makes the promise, or the right
of action should be lost, he would not be in the same condition; just as where
a party was in as good a condition as his adversary, so far as litigation is
concerned, is placed; in a word,
one on account of either the place, or the party being changed.
Therefore, where a slave is sold to someone who cannot be sued in the same
court as the party making the promise, or is delivered to someone who is more
powerful, he thinks that he cannot be produced in court in the same condition.
Where, however, he is surrendered in satisfaction for damage which he has
committed, Ofilius thinks that he cannot be produced in the same condition; as,
by his surrender for this purpose, he is of the opinion that all noxal actions
instituted by others are barred.
2. Paulus, On the Edict, Book VI.
We, however, adopt a different rule; for when a slave is surrendered in
satisfaction of damages, the right of action is not extinguished on account of
any of the reasons previously stated; for the action always follows the slave,
just as if he had put in an appearance in the first place.
(1) Where the slave, on account of whom a noxal action can be instituted
by anyone, is absent, and where his master does not deny that he is under his
control, Vindius holds that he can be compelled to promise to produce him in
court, or to defend him, and if he is unwilling to do this, he must give
security to produce him as soon as possible; but if he falsely denies that he
is under his control, he will be compelled to defend the suit without the
surrender of the slave; and Julianus stated this also, even where the master
contrived by fraud that the slave should not be under his control. If the slave
is present, and the master is absent, and there is no one to defend the slave,
he should be removed by the order of the prætor, but if proper cause be
shown, his defense can afterwards be conceded to his master, as Pomponius and
Vindius state; nor will the master be prejudiced by his absence. Therefore, the
right of action which the plaintiff lost because when the slave was taken away
he became his property, can be restored to him.
3. Ulpianus, On the Edict, Book VII.
Where a noxal action is brought against a person who has only the
usufruct in a slave, and he refuses to defend him, the right to bring suit for
the recovery of the usufruct shall be denied him by the prætor.
4. Gaius, On the Provincial Edict, Book VI.
Where anyone brings a noxal action against one of two owners of a slave,
the question arose whether he shall be obliged to give security with respect to
the share of his fellow owner? Sabinus says that he is not obliged to do so
because he is defending his own slave, just as if he was wholly his own
property; since he is obliged to defend the entire interest, and he shall not
be heard if he is prepared to defend only his own share.
5. Ulpianus, On Sabinus, Book XLVII.
Where a party has promised to produce a slave in court in the same
condition, and he is produced after having been set free; if a capital offence,
or one implying the commission of injury is involved, he is not properly
produced; because one kind of punishment is inflicted on
slaves by lashes in the case of injury, and another is inflicted upon a
freeman, as, for instance, a pecuniary fine. So far, however, as other noxal
actions are concerned, he is held to be in a better condition.
6. Paulus, On Sabinus, Book XL
Where, however, it was promised to produce a slave who is about to
become free, he is held to be in the same condition, even though he may be free
when he appears; because the attainment of his freedom was tacitly
CONCERNING ONE WHO PREVENTS A PERSON FROM APPEARING IN COURT.
1. Ulpianus, On the Edict, Book VII.
The prætor has considered it most just to punish the malice of one
who prevents the appearance of another in court.
(1) He not only is held to be guilty of malice who detains a party
either with his own hands, or through the agency of those in his service, but
also he who requests others to detain him or abduct him to prevent his
appearing in court, whether they knew, or were ignorant of what he intended to
(2) Where any person communicates evil tidings to another on his way to
court by means of which he prevents him from appearing, we consider it to be
malicious, and he is liable under the Edict; although some authorities are of
the opinion that the party who was so credulous would only have himself to
(3) Where a defendant is prevented from appearing through the malice of
the plaintiff, he will not have a right of action against the latter under this
Edict, since he must be contented with an exception in case he should be sued
for the penalty of his bond because he did not appear in court, but the case is
different if he was prevented by another, for then he could bring an action
(4) Where several persons have acted fraudulently, all are liable; but
if one of them pays the penalty, the others are released from liability, as the
plaintiff has no further interest in the matter.
(5) All authorities are of the opinion that in an instance of this kind,
where a slave is concerned, a noxal action must be brought.
(6) The right of action passes to the heir, but not for a longer time
than a year; and I think that an action will lie against the heir only to the
extent of preventing him from profiting by the fraud of the deceased.
2. Paulus, On the Edict, Book VI.
Where the slave of the plaintiff, with the knowledge of his master,
commits a fraud to hinder me from appearing in court, and his master does not
prevent him when he could do so, Ofilius says that an exception should be
granted against his master to prevent him from profiting by the fraud of the
slave. But if, in fact, the slave committed the
act without the consent of his master; Sabinus says that a noxal action
will lie, and that the act of the slave ought not to prejudice his master,
except to the extent that he shall lose him when he himself has committed no
3. Julianus, Digest, Book II.
An action will lie under this Edict against a party who, by means of
fraud, prevented anyone from appearing in court, for a sum equal to the
interest the plaintiff had in his appearance. In a suit of this kind it is
ascertained if the plaintiff lost anything on account of this; as, for example,
whether the defendant obtained ownership of the property in question by lapse
of time, or was freed from liability to be sued.
(1) It is evident that if the party who acted maliciously to prevent the
other from appearing in court is not solvent, it will be just to grant a
restitutory action against the defendant, lest he may profit and the plaintiff
suffer loss on account of the fraud of another.
(2) If the stipulator has been prevented from appearing in court through
the fraudulent act of Titius, and the promisor has been prevented by that of
Mævius; each of them has a right of action in factum against the
party by whose fraudulent act he was prevented.
(3) If both the stipulator and the promisor were each prevented from
appearing in court by the fraudulent act of the other, the prætor shall
come to the relief of neither of them, for the fraud committed by each is
mutually set off.
(4) If I stipulate with a surety for fifty aurei1
in case the defendant should not appear, and I am suing the defendant for a
hundred aurei, and, through the wrongful act of Sempronius, the
defendant fails to appear in court, I can recover a hundred aurei from
Sempronius, for that amount seems to have been my interest in the matter;
because if the party had appeared I would have had an action against him for a
hundred aurei, or one against his heir for the same amount, although the
surety had bound himself to me for a smaller sum.
WHERE A PARTY WHO HAS GIVEN A BOND TO APPEAR IN COURT DOES NOT Do
1. Gaius, On the Provincial Edict, Book I.
The prætor orders that a day shall be granted for every twenty
thousand paces in addition to that on which the bond is executed, as well as
that on which the party is bound to appear in court, for, indeed, this
enumeration, as applied to the journey, is burdensome to neither of the
1 The aureus, dating from 207 B. C. and originally
known as the solidus, was the standard gold coin of the Roman Empire. It
contained twenty-five denarii, or one hundred sestertii; and its
value varied at different epochs from $4.00 to $5.00 of our money. In the time
of Cicero it was worth about $3.90.
The Roman gold coinage was, to all intents and purposes, pure, as the
silver alloy ordinarily did not exceed one-third of one per cent.
The average relative value of gold and silver was from 1 to 9, to 1 to
15. — ED.
2. Ulpianus, On the Edict, Book LXXIV.
We do not require the defendant to appear in court where the matter with
reference to which he promised to appear has been settled; but this must take
place before the day fixed for him to appear. If, however, the settlement was
made afterwards, an exception on the ground of fraud should be interposed; for
who would trouble himself concerning the promise of the penalty after the case
had been disposed of? For anyone would think that an exception on the ground
that the matter had been settled would be valid, because the agreement also
included the penalty; unless the contrary had been specially agreed upon by the
(1) Where anyone, by reason of municipal employment, and without any
fault of his own, has been prevented from appearing in court in accordance with
his promise, it is perfectly just that an exception should be granted him.
(2) In like manner, a party who was called as a witness in some other
proceeding, and was not able to appear in court, is also entitled to
(3) Where anyone has promised to appear in court and is unable to do so,
having been prevented by illness, a storm, or the power of the current of a
river he, not undeservedly, may have the benefit of an exception; for as his
presence is required by such a promise, how can he appear who is hindered by
illness? Therefore, the Law of the Twelve Tables directs that: "If the judge,
or either of the litigants are prevented from being present by a serious
illness, the day of the trial shall be postponed".
(4) Where a woman does not appear, not because of illness but because
she is pregnant, Labeo declares that she is entitled to an exception. If,
however, she remains in bed after delivery, proof must be offered that she was
prevented by what is equivalent to sickness.
(5) The same rule applies where anyone is attacked by insanity, for he
who is prevented by insanity is prevented by illness.
(6) When I stated that a party was entitled to relief if he does not
appear because he has been prevented by a storm, or the power of the current of
a river; by the word "storm" a tempest either on land or sea is to be
understood. We should understand the storm to be such a one as hinders travel
by land or navigation.
(7) The power of the current of a river can also be understood to take
place without a storm; for we understand it to be of such a character that its
extent offers a hindrance, either because a bridge has been destroyed, or no
boat is available.
(8) Where, however, anyone, if he had started on his journey sooner, or
had sailed at a more opportune time could have avoided a storm, or the high
water of a river thus set bounds to his progress, is he entitled to no benefit
for an exception? This, indeed, should be decided after proper investigation,
for the rule ought not to be enforced so rigorously that he could be asked:
"Why he did not start a long time before the day mentioned in his promise?"
Nor, on the other hand, should it be allowed him to allege the storm or the
high water of the
river as the cause of his non-appearance, when this was his own fault.
Suppose, for instance, that a man was at Rome at the time he gave his promise
to appear, and that he went to a provincial town, not from urgent necessity but
on account of his own pleasure; is he not unworthy of the benefit of this
exception? Or, suppose the tempest arose while he was on the sea, but he could
have come by land, or have avoided the river by going round it; it may properly
be said that he would not always be entitled to the benefit of an exception;
unless the ruggedness of the country did not permit him to travel by land, or
to go round the river. Where, however, the river had either overflowed its
banks so as to cover the entire place where he had to appear, or some
accidental misfortune had overwhelmed that place, or had rendered it dangerous
for him to come; an exception should be granted him under such circumstances,
in accordance with all that is proper and just.
(9) In like manner, an exception is granted to him who, when he intended
to appear in court, was detained by a magistrate without any fault of his own;
for if he, himself, tried to have this done, or gave cause for it, he is not
entitled to the benefit of the exception, as only his own fraudulent conduct
could injure him, and he would not be injured by the act of others who
maliciously caused him to be detained. Where, however, a private individual
detained him, he is under no circumstances entitled to the benefit of this
3. Paulus, On the Edict, Book LXIX.
An action for an amount equal to his interest in the case will lie
against the party who detained him.
4. Ulpianus, On the Edict, Book LXXIV.
Where anyone who has promised to appear cannot do so because he has been
convicted of a capital offence, he is very properly excused. We understand
condemnation to capital punishment to mean sentence of death or exile. It
might, perhaps, be asked of what value is this exception to a person who has
been condemned? To this it may be answered that it is necessary for his
sureties, and if he is sent into exile without losing his right of citizenship,
this exception will profit anyone charged with his defence.
(1) It should be borne in mind that if he who does not appear because he
was accused of a capital crime, was so situated that he could not make use of
an exception, as this is only granted to one that is convicted; it is clear
that if he did not appear for the reason that he was prevented by being in
prison, or in military custody, that he would then be in such a position that
he could make use of an exception.
(2) Moreover, if a person does not appear for the reason that he was
prevented by a funeral in his family, an exception should be granted him.
(3) Again, if anyone is held in captivity by enemies, and for this
reason did not appear in court, he is entitled to the benefit of an
(4) The question has arisen whether an agreement can be made that no
exception shall be pleaded, where a party breaks a promise made for the purpose
of his appearance in court? Atilicinus is of the opinion that an agreement of
this kind is not valid. I think, however, that such an agreement is valid, if
the causes of the exception were expressly stated, and the party making the
promise voluntarily renounced them.
(5) In like manner, the question arises whether an exception can be
granted to the sureties of a party who gave security to appear in court, when
he was not obliged to do so? I am of the opinion that the question is whether
security was given through mistake, or by agreement; for, if it was done by
mistake, an exception should be granted the sureties; but if it is done by
agreement, they are by no means entitled to it. Julianus stated that where
anyone bound himself for a larger amount than was fixed, and did this through
ignorance, he was entitled to an exception, but where he bound himself for such
a sum in pursuance of an agreement, Julianus says that the exception is barred
by filing a replicatio, on the ground of the agreement entered into.
5. Paulus, On the Edict, Book LXIX.
Where there are two creditors equally interested, and a debtor promises
one of them under a penalty to appear in court, and the other prevents him from
so doing, an exception does not lie against the other if they are partners,
lest the fraud of one of them may benefit the other on account of the
(1) In like manner, where there are two debtors jointly liable, and one
of them, breaking his promise, does not appear in court, and the plaintiff then
demands the property in dispute from one, and the penalty for non-appearance
for the other, the suit to recover the penalty will be barred by an
(2) Also, where a promise has been made by a father to appear in court
on account of some contract made by his son, and afterwards the plaintiff
institutes proceedings against the son; they are barred by the exception if the
plaintiff sues his father on account of his promise. On the other hand, the
same rule applies if the son promised to appear and the plaintiff brings an
action against the father for the peculium.
6. Gaius, On the Law of the Twelve Tables, Book I.
Where he who has given a surety does not appear because he is absent on
public business, it is unjust for the surety to be required to appear on behalf
of the other, when the latter is not free to do so.
7. Paulus, On the Edict, Book LXIX.
Where anyone promises that a slave, or some other person who is under
the control of another shall appear in court, he is entitled to the same
exceptions as he would be if he had bound himself for a freeman, or the head of
a family; except where the slave is said to be absent on public business, for a
slave cannot be absent on public business. Leaving this exception out of
consideration, all the others, being generally applicable, can be taken
advantage of in the cases of freemen as well as in those of slaves.
8. Gaius, On the Provincial Edict, Book XXIX.
If in four, five, or more days after the party promised to appear in
court he gives the plaintiff occasion to proceed against him, and the latter is
not prejudiced by the delay, it may be stated that in consequence of this, he
can defend himself by means of an exception.
9. Ulpianus, On the Edict, Book LXXVII.
Where a slave promises to appear in court his agreement is of no force,
either with respect to himself or his sureties.
(1) If anyone has promised by a single stipulation to appear in court on
behalf of several slaves, Labeo says that the entire penalty can be collected
although only one slave does not appear; because it is a fact that all of them
were not present. However, if a portion of the penalty is tendered for that
one, he can make use of an exception on the ground of fraud if suit is brought
on the stipulation.
10. Paulus, On Plautius, Book I.
If I promise that a party shall appear in court who already is alleged
to have become free by lapse of time, for example, because he was no longer
liable to be sued; an action will lie against me either to produce or defend
him, that the truth may be ascertained.
(1) Where a promise has been made that a man will appear, and he loses
his life through the treachery of the surety before the day fixed for his
appearance; we can certainly make use of the rule: "That an action can not be
brought for a penalty before the time arrives, for the reason that the entire
stipulation is held to refer to a certain day".
(2) A man who was about to bring an action for injury stipulated before
issue was joined, that if his adversary should appear in court, and when the
time for the fulfillment of the promise had elapsed, he died; it is held that
no right of action exists against the heir by reason of the stipulation; for
the reason that stipulations of this kind are only entered into on account of
the principal action; and although, as a rule, the stipulation entered into to
appear in court passes to the heir, still, in this instance, it is not the
case; for if the deceased had desired to bring suit on the stipulation after
having abandoned that of injury, he would not have been permitted to do so.
The same rule will apply if the party against whom I desire to bring an
action for injury had died after the time stated in the stipulation, for I have
no right to bring an action on the stipulation against the heir; and this was
the opinion of Julianus. Hence, where sureties have been given, no action
whatever will lie against them after the principal is dead. Pomponius holds the
same opinion where the party did not die a great while afterwards, for the
reason that, if he had appeared in court, his adversary would have been able to
join issue with him.
11. Ulpianus, On Sabinus, Book XLVIL
Where anyone promises that a party shall appear in court, he ought to
see that he does so in the same legal condition. To appear in the
same condition means that he shall do so in such a way that the
plaintiff will not be any the worse in the prosecution of the case, even if it
may be more difficult for him to obtain satisfaction of his claim; and although
this may be the case, it can be said that the party is still in the same legal
condition; or even if he may have contracted new obligations, or have lost
money, he still is held to be in the same legal condition; therefore, when
anyone appears after judgment has been obtained against him, he is still held
to appear in the same legal condition.
12. Paulus, On Sabinus, Book XI.
He, however, who has acquired the right to make use of some new
privilege is not held to appear in the same legal condition.
(1) It must be held that any estimate of the interest of the plaintiff
should be calculated with reference to the time when he ought to have appeared,
and not to that when proceedings were instituted; even though he may have
ceased to have any interest in the question at issue.
13. Julianus, Digest, Book LV.
When a slave himself promises to appear in court to conduct a case, or
this is stipulated by another, the stipulation is of no effect, nor are the
sureties liable; because a slave cannot either sue or be sued.
14. Neratius, Parchments, Book II.
If one man, as the agent for another, stipulates that he will merely
produce him whom he agreed to produce without mentioning a penalty, and he
should not appear, a stipulation of this kind can hardly have any weight;
because the agent, so far as it relates to himself, has no interest in his
appearance. But since, in making the stipulation, he is transacting the
business of another, it may be stated that the benefit which must be considered
in the matter does not accrue to the agent, but to the party whose business he
was transacting; so that if the party does not appear, there should be due to
the agent an amount equal to the interest of the principal in the suit in
accordance with the terms of the stipulation. The same rule can be said to
apply even more strongly, where the agent had stipulated in the following
terms: "Whatever compensation is proper"; as we understand these words to have
reference not to the benefit of the agent himself, but to that of the principal
in the action.
15. Papinianus, Questions, Book II.
Where a guardian promises to appear in court and comply with his
agreement, and in the meantime his ward becomes of age, or dies, or rejects the
estate, an action on the stipulation shall be refused; for if an action had
been brought to recover the property itself, and judgment had been rendered
against the guardian, and any of the above things had taken place; it has been
settled that no action on the judgment could be instituted against him.
CONCERNING FESTIVALS, DELAYS, AND DIFFERENT SEASONS. 1. Ulpianus, On
all Tribunals, Book IV.
It is stated in an Address of the Divine Marcus that no one can compel
another to go to trial in the seasons of harvest and vintage; because being
occupied in agricultural pursuits, he should not be compelled to appear in
(1) If, however, the prætor, either through ignorance or neglect,
should continue to summon the parties, and they should voluntarily appear, and
he should render judgment in the presence of the litigants, who are here of
their own accord, the judgment will be valid, even though he who summoned them
acted improperly; but if he should render judgment in their absence, and while
they continued to remain away, it follows that it must be held that his
judgment is of no effect; for the act of the prætor can not abrogate the
law. The judgment therefore becomes void without appeal.
(2) There are, however, certain cases which must be excepted, and in
which we may be compelled to appear before the prætor during the seasons
of harvest and vintage, namely, where the property in question will be lost by
lapse of time; that is to say, where delay will deprive the party of his right
of action. And, in fact, when the matter is urgent, we can be forced to appear
before the prætor, but this only can be done in order that issue may be
joined; and it is so stated in the words of the aforesaid Address, for, after
issue has been joined, if either of the parties refuses to proceed, the Address
grants him delay.1
2. The Same, On the Edict, Book V.
The Divine Marcus in the same Address delivered before the Senate,
states that there are other cases in which application may be made to the
prætor on holidays, as, for instance, for the appointment of guardians
and curators; to admonish persons as to their duties; to hear excuses; to
arrange for support; to prove age; to make provision for the possession for
unborn children; for the preservation of property for the benefit of either
legatees or the beneficiaries of trusts; or where security should be given
against unlawful damage; or for the production of wills; or that a curator may
be appointed for the property of one who is uncertain whether he will have an
heir or not; or for the support of children, parents, or patrons; or for an
1 In Las Siete Partidas, the church holidays and other
occasions on which claims cannot be prosecuted in court, are specified at
considerable length. There are numerous exceptions to this rule, however,
including almost every instance in which the personal rights of the party would
be injuriously affected, or he might suffer pecuniary loss. The provisions of
the law in excusing the non-appearance of litigants also apply to every kind of
agricultural operations, giving as reasons the public benefit of such labors,
and the fact that the weather during those seasons is generally more favorable
to the occupations of husbandry. "E esto por dos razones. La primera es, que
tal obra torna en pro comunal de todos. La segunda, porque acaece muchas
vegadas, que en tales dias face mejor tietnpo, para facer las lavores que son
menester a la tierra para dar frutos, que en los otros." (Las Siete Partidas
III, II, 23-29.) Similar regulations are established by the Visigothic
Code. (Forum Judicum. II, I. 10.) — ED.
an estate which is suspected of being insolvent; or for the examination
of an atrocious injury; or for the bestowal of freedom granted under a
3. The Same, On the Edict, Book II.
It is also customary to dispense justice during the season of harvest
and vintage in cases where the property is liable to be lost either by time or
by death, as for example, in actions for theft, ordinary injury, atrocious
injury, and where parties are said to have been guilty of robbery during a
fire, the destruction of a house, shipwreck, or the seizure of a boat or a ship
and other cases of this kind. The same rule applies where the property may be
lost through the lapse of time, or the term within which suit can be brought is
about to expire.
(1) Proceedings relating to freedom can be concluded at all times.
(2) Justice can also be dispensed at all times in the case of a person
who accepts something contrary to the public welfare under pretence of the
right of holding a market.
4. Paulus, On the Edict, Book I.
The governors of provinces ordinarily fix the time of harvest and
vintage according to the custom of the neighborhood.
5. Ulpianus, On the Edict, Book LXXII.
Magistrates are not accustomed to administer justice, or to exercise
their authority at all on the day before the Kalends of January.
6. The Same, On the Edict, Book LXXVII.
When judgment is rendered on a holiday, it is provided by law that it
shall not be valid except by the consent of the parties; and where judgment is
rendered otherwise, in opposition to this rule, no one is obliged to comply
with it, or make any payment; nor can any official to whom application has been
made under such circumstances compel the party to obey his judgment.
7. The Same, On the Office of Consul, Book I.
It is stated in the Address of the Divine Marcus that delay for the
production of instruments cannot be granted more than once; but, for the
benefit of litigants, where proper cause is shown, a delay can be obtained a
second time in the same, or in a different province, according to the rules
observed in different localities, and especially where anything unexpected
arises. It must be ascertained if the deceased had obtained any delay for the
production of documents, and whether this should also be granted to his
successor; or, indeed, as it has been granted once, whether it cannot be
granted a second time? The better opinion is that it ought to be granted where
proper cause is shown.
8. Paulus, On Sabinus, Book XIII.
In accordance with the Roman custom, the day begins at midnight, and
ends in the middle of the following night; therefore, whatever is done during
these twenty-four hours (that is to say during the two halves of the night and
the intervening day) is held to have been done during any hour of daylight.
9. Ulpianus, On the Office of Proconsul, Book VII.
The Divine Trajan stated in a Rescript to Minicius Natalus that holidays
only cause suspension of judicial business, and that those matters which relate
to military discipline can also be transacted on holidays. This also includes
the examination of persons who are in prison.
10. Paulus, Sentences, Book V.
In pecuniary actions, delay cannot be granted more than once in each
case, but in capital cases three continuances may be granted to the defendant,
and two to the accuser; but in both instances proper cause must be shown.
CONCERNING THE STATEMENT OF A CASE. 1. Ulpianus, On the Edict, Book
Where anyone wishes to bring an action, he must state the grounds for
it; as it is most just that the party sued should know whether he ought to
submit, or set up a defence, and if he makes up his mind to the latter course,
that he may be sufficiently informed to conduct the proceedings by ascertaining
the nature of the suit which is brought against him.
(1) To state the case is also to give the other party an opportunity to
take a copy of the same, or of what is included in the complaint, either by
presenting it to him, or by dictating it. Labeo says that he also makes a
statement of his case who conducts his adversary to the register of the
prætor, and shows him what he is about to dictate, or by communicating to
him the form which he intends to use.
(2) Notices of this kind should be drawn up without mention of the date,
or the consul, lest some fraud may be contrived from the employment of the
same, and a prior date be inserted in the instrument. The prætor,
however, excludes the date and the consul when the document was written, but
not that on which payment was to have been made; for the day of payment is, as
it were, the principal part of the stipulation. Accounts, however, must be
stated with the date and the consul; as where money is paid and received this
cannot otherwise be clear, unless the day and consul are set forth.
(3) All matters must be stated which anyone intends to bring before the
court, but a party is not compelled to produce instruments which he does not
expect to use.
(4) He is not considered to have given proper notice who does not
include the entire stipulation.
(5) Relief shall be granted to those who, on account of their age,
ignorance, sex, or for any other good reason, have failed to make proper
2. Paulus, On the Edict, Book III.
Where suit is brought for a legacy the prætor does not order the
terms of the will to be set forth, probably because the heir usually has a copy
of the will.
3. Mauricianus, On Punishments, Book II.
The Senate decreed that no one against whom a suit is brought by the
Treasury, shall be forced to exhibit any other documents to the informer than
those that relate to the case in which the latter has declared himself to be
4. Ulpianus, On the Edict, Book IV.
The prætor says: "Those who pursue the business of bankers must
exhibit to a depositor the account in which he is interested, in addition to
the day and the consul."
(1) The principle of this Edict is perfectly just; for as bankers keep
the accounts of individuals, it is but proper that any books or papers relating
to business transactions in which I am interested, should be shown to me as
being, to a certain extent, my own property.
(2) The son of a family is included in the terms of the Edict, so that
he also is compelled to exhibit his accounts; and the question arises is the
father likewise compelled to do so? Labeo states that he is not, unless his son
conducts the business of a banker with his knowledge; but Sabinus has properly
declared that this is not to be admitted, where he reports his profits to his
(3) Where a slave carries on a banking business (for he can do so), if,
indeed, he acts with the consent of his master, the latter can be compelled to
produce his accounts, and an action will lie against him, just as if he,
himself, had carried on the business; but, if the slave acts without the
knowledge of his master, it will be sufficient if his master swears that he is
not in possession of his accounts. Where a slave carries on the business of a
banker, with his own private means, the master is liable for the same, or for
the amount invested; but where the master has the accounts, and does not
produce them, he is liable for the entire amount.
(4) Even a party who has ceased to conduct a banking business can be
compelled to produce his books and papers.
(5) A person is compelled to produce his accounts in the place where he
has conducted his banking business, and this has been thoroughly established.
When he keeps his books in one province, and conducts his business in another,
I am of the opinion that he can be compelled to produce them in the place where
he carries on his business; for he was to blame in the first place for removing
his books elsewhere. If he conducts his business in one place, and he is
required to produce his books in another, he is by no means obliged to do so,
unless you wish him to furnish you with copies of the same, where legal
nroceedings have been instituted, and, of course, at your expense.
5. Paulus, On the Edict, Book HI.
Time must be granted him to bring these accounts.
6. Ulpianus, On the Edict, Book IV.
Where a banker keeps his books at his residence, or in his warehouse,
(as many of them do), he must either conduct you to the place where they are,
or give you a copy of the accounts.
(1) The successors of a banker are also obliged to produce accounts.
Where there are several heirs, and one of them has possession of the accounts,
he alone can be compelled to produce them; but where all have possession of
them, and one produces them, all can be compelled to do so. What then must be
done if the one who produces them is obscure and entitled to but little
consideration, so that doubt may justly arise concerning the good faith of
their production? Therefore, in order that the accounts may be compared, the
others should also produce theirs; or, indeed, sign those produced by one of
them. The same rule will apply where there are several bankers who have been
requested to produce their accounts; for where there are several guardians who
are discharging a trust together, they must all produce their accounts, or sign
that produced by one of them.
(2) Moreover, an oath is exacted from the adversary of the banker, "that
he does not demand the production of his accounts for the purpose of
annoyance"; in order that he may not require the production of accounts which
are superfluous, or of which he already has possession, for the sake of
annoying the banker.
(3) Labeo says that an account is a statement of all mutual payments,
receipts, credits and debts of the parties; and that no account can begin with
the mere payment of a debt. And where the party has received a pledge or a
deposit, he cannot be required to disclose the fact, as these are beyond the
scope of an account; the banker, however, must furnish a statement where a
promise to pay has been made, for this belongs to his business as a banker.
(4) An action will lie under this Edict for the amount of the interest
of the plaintiff.
(5) From this it is apparent that the Edict only applies to what
concerns the party himself; but it is held that the account concerns me if you
merely keep it under my direction; but if my agent directs this to be done,
while I am absent, must it be produced by me, on the ground that it concerns
me? The better opinion is that it must be produced. I have no doubt that my
agent must produce the account which he keeps for me as it concerns him, and he
must give security that I will ratify it, if no mandate were given him.
(6) Where a date appears at the beginning of a page under which the
account of Titius is set down, and afterwards my own appears without date or
consul; the same date and consul must be given to me also, as the day and
consul entered at the beginning belong to the entire account.
(7) To exhibit an account is either to dictate it or make a statement of
it in writing, or to produce an account book.
(8) The prætor says: "I will order accounts to be produced to a
banker, or to anyone who demands it a second time, only where proper cause is
(9) He forbids accounts to be produced to a banker for the reason that
he himself can obtain information from the books and papers of his business;
and it is absurd that he should ask that books be produced for his benefit, in
a case where he himself is obliged to produce them.
Whether an account must be produced for the heir of the banker is a
matter for consideration, for if the banker's books and papers have come into
his possession, they should not be produced for him; but if not, this can be
done where proper cause is shown, as, under such circumstances, the accounts
must have been produced for the banker himself, where he proves that the
accounts have been lost through shipwreck, the destruction of a house, fire, or
any other similar accident; or where they are in a place which is at a great
distance, as for instance, beyond sea.
(10) The prætor does not require accounts to be produced for a
party demanding it a second time, unless for good cause.
7. Paulus, On the Edict, Book HI.
For instance, where he shows that the accounts given in the beginning
are in some distant place, or that they are not complete, or that he has lost
them through unavoidable accident, and not through negligence, for if he lost
them by an accident of this kind for which he should be excused, he shall be
ordered to produce them a second time.
(1) This term: "A second time," has two significations, one in which
reference is made to the second time which the Greeks call deuteron, and the other which includes also
subsequent times, which the Greeks call palin; by
which is understood "as often as is necessary"; for it may happen that a party
has lost an account which was twice given him, so that the term "a second time"
is understood to mean "frequently".
8. Ulpianus, On the Edict, Book IV.
When a banker is required to produce his accounts, and, influenced by
malice, he does not do so, he is punished; but he is only liable for negligence
when it closely resembles malice. He is guilty of malice in producing his
accounts who does so with fraudulent intent, or who produces them
(1) He who becomes liable under the terms of this Edict is required to
pay, by way of damages, a sum equal to the interest I had in having the
accounts produced at the time this was ordered by the prætor, and not the
interest which I have at present; and, therefore, even if my interest has
entirely ceased to exist, or has become less or greater, my right of action
will neither be increased nor diminished.
9. Paulus, On the Edict, Book HI.
There are some persons who are obliged to produce our accounts, although
they are not required to do so by the prætor under this
Edict; as, for instance, where an agent transacts our business or keeps
our accounts, he is not required to produce his accounts by the prætor,
through fear of an action in factum, for the reason that we can obtain
this by an action on mandate. Also, where a partner has transacted the business
of the partnership fraudulently, the prætor cannot proceed against him
under this clause, for there is an action in behalf of his partner; nor can the
prætor force a guardian to furnish an account to his ward, for it is
customary to compel him to do this by an action of guardianship.
(1) It makes no difference whether the successors, the father, or the
master of the banker are in the same business; for since they take his place
and succeed him in law, they are bound to discharge his obligations. A party to
whom a banker has left his accounts does not appear to be included, (since by
these words his legal successor is meant) any more than, if he, while living,
had presented him with them. Nor will the heir himself be liable, if he has not
had possession of them and has not acted fraudulently. If, however, before he
delivers them to the legatee, he should be notified not to do so, he will be
liable just as if he acted through malice; and he will also be liable so long
as he has not surrendered them. If he does not act maliciously, the legatee
will be compelled to produce the accounts, where sufficient cause is shown.
(2) Nor is it unjust that money-brokers, as Pomponius says, should be
compelled to produce their accounts, because brokers of this kind, as well as
bankers, keep accounts, and receive and pay out money at different times; which
is principally proved by their entries and account books, and reliance is very
frequently placed upon their good faith.
(3) Moreover, the prætor orders accounts to be produced for those
who demand it, and who swear that they are not bringing suit for the purpose of
(4) Accounts are considered as concerning us, not only when we ourselves
have been parties to a contract, or have succeeded someone who has made a
contract, but also where a contract has been made by a person under our
10. Gaius, On the Provincial Edict, Book I.
When a banker is ordered to produce his accounts, it makes no difference
whether the controversy has arisen with him or with another party.
(1) The reason why the prætor requires only bankers to produce
their accounts, and not others who are transacting business of a different
description, is, because their functions and occupations are of a public
nature, and their chief duty is to carefully keep accounts of their
(2) An account is considered to be produced when this is done from the
very beginning (for an account cannot be understood unless it is thoroughly
examined). This, however, does not signify that the entire account-book, or all
the parchments of any person, are to be examined or copied; but that only the
portion of the account which is
required to give a party the information he desires, is to be examined
(3) When an action is brought for an amount which is equal to the
interest of the plaintiff in having the account produced, it follows that
whether he does not obtain what he brought suit for, or whether he is condemned
for the reason that he did not have the account with which he could have
sustained his case; he can recover by this action whatever he lost in this way.
Let us consider whether this is actually true, for if he can prove before the
judge who is to decide between him and the banker, that he could have gained
his case in the trial in which he was beaten, he must then have been able to
prove it; and if he did not do so, or if he did prove it, and the judge did not
pay any attention to this fact, he has only the right to complain of himself,
or of the judge. This, however, is not the case, for it might happen that he
has at present obtained possession of the account from the defendant himself,
or in some other way; or be able to prove, by means of other documents, or
witnesses, which for some reason or other, he was not able to make use of at
the time of the trial, that he could have gained his case. For, under these
circumstances, a man has a right of action for theft or for fraudulent
alteration of an obligation made for his benefit; as well as an action for
unlawful damage, as, although we may not have been able to prove something
previously for the reason that an undertaking has been abstracted, and may have
lost our case, still, we can prove it now by other documents, or witnesses,
which we were unable to make use of in the first place.
11. Modestimis, Rules, Book HI.
It has been established that copies of documents may be produced without
the signature of the party who exhibits them.
12. Callistratus, On the Monitory Edict, Book I.
It is held that women are excluded from conducting banking business, as
this is an occupation belonging to men.
13. Ulpianus, On the Edict, Book IV.
This action is not permitted after the lapse of a year, nor against an
heir, unless through some act of his own; but it is granted to an heir.
1. Ulpianus, On the Edict, Book IV.
The justice of this Edict is natural, for what is so suitable to the
good faith of mankind as to observe those things which parties have agreed
(1) The term pactum is derived from pactio, and the word
pax has also the same origin.
(2) An agreement is the consent of two or more persons to the same
(3) The term "conventio" is a general one, and refers to
everything to which persons who have transactions with one another give their
consent for the purpose of making a contract, or settling a dispute; for as
parties are said to come together who assemble from different places in one;
so, also, the same word is applicable to those who, from different feelings of
the mind, agree upon one thing; that is to say, arrive at one opinion. The term
"conventio" is such a general one, as Pedius very properly says, that
there is no contract and no obligation which does not include it, whether it is
made by the delivery of the property, or verbally; for even a stipulation,
which is verbally made, is void, where consent does not exist.
(4) The greater number of conventions have names that are peculiar to
them, as, for instance, sale, hire, pledge, and stipulation.
2. Paulus, On the Edict, Book HI.
Labeo says that an agreement can be entered into by delivery of
property, by a letter, or by a messenger. It can also be made between absent
parties, and it is understood that an agreement can be entered into by tacit
(1) Hence, if I restore his obligation to my debtor, it is held to have
been agreed upon between us that I will not make any claim against him; and it
is established that, if I do, he can plead in bar an exception based on the
3. Modestinus, Rules, Book HI.
But after a pledge has been restored to a debtor, there is no question
that the debt can be collected, if the money had not been paid; unless it is
expressly proved that the contrary was intended.
4. Paulus, On the Edict, Book III.
Again, for the reason that tacit agreements are valid, it is settled
that personal effects brought into dwelling-houses, which have been rented, are
to be regarded as pledged to the lessor; even though nothing was specially
stated to that effect.
(1) In accordance with this principle, a person who is dumb can enter
into a contract.
(2) A stipulation made on account of a dowry is another proof of this,
for no one has a right, before marriage, to bring suit for the dowry, any more
than if this had been expressly stated; and if the marriage does not take
place, the stipulation has no effect, which is also the opinion of
(3) Having been consulted in a case where it was agreed that the
principal could not be demanded so long as the interest was paid, and the
stipulation was unconditionally drawn up, it was the opinion of Julianus that
the condition was implied by the stipulation, just as if it had been expressed
5. Ulpianus, On the Edict, Book IV.
There are three kinds of conventions, some of which relate to public
matters, and some to private affairs. Those which are private are either based
upon legislative enactments or upon the Law of Nations.
(1) A public convention is one by which peace is made when two military
leaders agree upon certain things to that end.
6. Paulus, On the Edict, Book HI.
A convention based upon legislative enactment is one which is
confirmed by some law; and therefore sometimes an action arises from an
agreement, or is abrogated by it; which takes place as often as it is supported
by an enactment, or by a Decree of the Senate.
7. Ulpianus, On the Edict, Book IV.
Some conventions based on the Law of Nations give rise to actions, and
others give rise to exceptions.
(1) Those which give rise to actions are not known by their own names,
but pass under the special designation of contracts; as purchase, sale, hire,
partnership, loan, deposit, and other similar terms.
(2) Where the matter has not been placed under the head of some special
contract, then, as Aristo very properly stated to Celsus, an obligation exists;
as, for instance, I gave you something with the understanding that you would
give me something else; or I gave you something with the understanding that you
would perform some act, and this is sunallagma, that
is to say, a mutual agreement, and a civil obligation will arise therefrom.
Therefore I am of the opinion that Julianus was very justly criticized by
Mauricianus for his decision in the following case: "I gave you Stichus with
the understanding that you should manumit Pamphilus; you manumitted him, but
Stichus was evicted by another party." Julianus holds that an action in
factum should be granted by the prætor; but the former says that
there is a civil action for an object which is uncertain, that is to say, one
in prescribed terms, for there is a contract which Aristo calls
sunallagma, and from this the action is derived.
(3) Where something is promised to prevent the commission of a crime, no
obligation arises from such an agreement.
(4) But, where there is no ground for an agreement, it has been
established that no obligation can be created; therefore, a mere agreement does
not create an obligation, but it does create an exception.
(5) Sometimes, however, it does give rise to a suit, as in bona-fide
actions; for we are accustomed to say that agreements which are entered
into are included in bona-fide actions; but this must only be understood
in the sense that where agreements follow as parts of a contract, they are
included so as to give the right of action to the plaintiff; but if they are
added afterwards, they are not considered to belong to the contract, nor do
they confer a right of action; otherwise, an action would arise from the
agreement. For instance, if after a divorce, it is agreed that the dowry shall
not be surrendered at the end of the time prescribed by law, but immediately;
this will not be valid; otherwise there would be an action founded on an
agreement. Marcellus states the same thing, and if during an action of
guardianship, it is agreed that a higher rate of interest than that established
by law shall be paid, this is of no effect, or there would be an action founded
upon an agreement; as the agreements contained in the contract con-
stitute its very essence; that is, they were made when the contract was
entered into. I am aware that Papinianus said that if, after a sale, any
agreement was entered into which was not a part of the contract, an action
growing out of the sale could not be brought, on account of this same rule,
namely: "No action can arise on a simple contract," which may also be stated
concerning all bona-fide actions. The agreement, however, will have
effect on the side of the defendant, for the reason that agreements which are
afterwards interposed usually give rise to exceptions.
(6) To such an extent are subsequent agreements included in the same
contract, that it is established that in purchases and other bonafide
cases where the exception has not been followed up, the party can withdraw
from the purchase. If this can be done as a whole, why cannot a part of it be
changed by an agreement? This Pomponius stated in his Sixth Book on the Edict.
Since this is the fact, an agreement will still have effect on the part of the
plaintiff, so as to give him a right of action, where no further proceedings
have been taken; and, on the same principle, if the whole contract can be set
aside, why can it not be amended and appear, as it were, in a new form? This
can be said to have been properly stated, and therefore I do not disapprove of
what Pomponius says in his book of "Readings", namely: that one can by an
agreement partially abandon a purchase, so that a purchase of the part may be
made a second time.1
Where, however, two heirs are left by the purchaser, and the vendor
agreed with one of them to abandon the sale; Julianus says that the agreement
is valid, and that the sale is in part annulled, since the other heir by
entering into another contract would have been able to obtain an exception as
against his co-heirs. Hence the opinion of Julianus and Pomponius are very
(7) The prætor says: "I will require the observance of agreements
which have not been entered into maliciously or contrary to the laws,
plebiscites, Decrees of the Senate, or Edicts of the Emperors, where no fraud
appears in any of them."
(8) There are certain agreements which relate to real property, and
others which relate to personal property. Those that relate to real property
are those by which I agree, in general terms, not to bring suit; those which
relate to personal property are those in which I agree not to sue a certain
individual, for instance: "I will not sue Lucius Titiiis." Whether an agreement
is made with reference to property or to a person is to be ascertained not only
from the language, but also from the intention of the contracting parties;
since generally, (as Pedius says) the name of the person is inserted in the
contract, not for the purpose of rendering it personal, but that it may be
shown with whom the contract was made.
(9) The prætor says that an agreement fraudulently executed shall
not be observed. Fraud is perpetrated by means of craft and artifice;
1 That is, he may rescind the entire transaction, and
subsequently purchase a portion of the property sold, which would practically
amount to an entirely dif-
and, as Pedius says, a contract is fraudulently executed whenever
something is done, under the pretence that something else is intended, for the
purpose of cheating another.
(10) The prætor adds nothing with reference to contracts entered
into in order to defraud; but Labeo very properly says that if he did, it would
be either unjust or superfluous; unjust if, for instance, the creditor having
once given his debtor a bona fide release, should afterwards attempt to
annul it; superfluous, if he was deceived when he granted the release, for
fraud is included in deceit.
(11) Where a contract is fraudulently made in the beginning, or some
fraudulent act is committed afterwards, there is ground for an exception,
according to the words of the Edict: "And no fraud is committed".
(12) With reference to what is usually inserted at the end of an
agreement, namely: "Titius asked, Mævius promised"; these words are not
only understood as forming part of the contract, but also as being part of the
stipulation; and therefore an action on a stipulation arises from them, unless
the contrary is expressly proved; for the reason that this was done, not with
the intention of making a stipulation, but only of entering into an
(13) If I agree that an action shall not be brought on a judgment, or
for burning a house, an agreement of this kind is valid.
(14) If I agree not to institute proceedings upon the "notice of a new
structure", some authorities are of the opinion that the agreement is not
valid, because it, as it were, attacks the authority of the prætor; but
Labeo makes a distinction here, as, for instance, where the new structure may
be injurious to private property the agreement can be entered into; but where
it affects public property this cannot be done, which is a very proper
distinction. Thus it is lawful to enter into an agreement with respect to all
other matters to which the Edict of the prætor relates, and which affect
private property, but not to those where the injury of public property is
concerned; for the law even permits a compromise to be made with reference to a
(15) Where anyone agrees not to institute proceedings on account of a
deposit, the contract is valid, according to Pomponius. Also where anyone
agrees: "To assume all risk attending a deposit"; Pomponius states that the
agreement is valid, and it cannot be set aside as contrary to law.
(16) Generally speaking, whenever an agreement is contrary to the Common
Law, one is not obliged to observe it, nor can a legacy be made to depend upon
this; nor where an oath has been made that the party will not sue, the
agreement should not be observed, Marcellus states the same in the Second Book
of the Digest; and where a stipulation has been entered into with reference to
matters which it is not lawful to make the subject of a contract it is not to
be observed, but entirely rescinded.
(17) When anyone before entering upon an estate makes an agreement with
the creditors to pay them less than is due, then the contract will be
(18) Where a slave makes an agreement before he obtains his freedom and
inheritance, Vindius says that the contract is of no force, because he was
appointed an heir under a condition. Marcellus, however, in the Eighth Book of
the Digest, is of the opinion that if a direct heir, and a slave who is a
necessary heir, both of whom have been absolutely appointed, make an agreement
before meddling with the estate, they do so properly, which indeed is correct.
He also thinks that a foreign heir, where he enters upon the estate under the
direction of creditors, does so lawfully, and that he also has a right of
action. But where anyone (as we have previously stated) enters into an
agreement while in slavery, Marcellus denies that his contract is valid, since
whatever act a person performs while in slavery does not usually profit him
after he has obtained his freedom; which must be admitted with respect to an
exception based upon a contract. But the question arises does an exception
which is based upon fraud benefit him? Marcellus, although he was previously in
doubt whether this was the case, in similar instances, however, admits it; as,
for instance, where the son of a family, having been appointed heir, makes an
agreement with creditors, but after he has been emancipated, enters upon the
estate; he holds that he can make use of an exception on the ground of fraud.
He is of the same opinion where a son, during the lifetime of his father, makes
an agreement with the creditors of the latter; for in this instance an
exception on the ground of fraud will be admitted. Finally, an exception on the
ground of fraud must not be rejected even in the case of slaves.
(19) At present, however, an agreement of this kind can only be a
disadvantage to creditors where they assemble, and by common consent state with
what portion of their debts they will be satisfied. But, if they do not agree,
the intervention of the prætor will be necessary, who in his decision
must follow the will of the majority.
8. Papinianus, Opinions, Book X.
It has been decided that, in the case of creditors, a majority has
reference to the amount of the indebtedness, and not to the number of
individuals. If the number of the creditors is the same as the number of the
debts, then the majority of the creditors must be given the preference; when
the number of the creditors is equal, the prætor must follow the will of
him who is highest in rank among them; but where everything is equal on both
sides, the most humane opinion must be chosen by the prætor, for this can
be gathered from the Rescript of the Divine Marcus.
9. Paulus, On the Edict, Book LXII.
Where there are several creditors who have a single right of action,
they are held to occupy the position of only one person; as, for example, where
there are several creditors by stipulation, or several bankers whose
obligations were entered into at the same time, they shall be considered as
one, because there is only one debt. Where several guardians of one ward, who
is a creditor, enter into an agreement, they are regarded as one, for the
reason that they did so in behalf of
a single ward. Again, where a single guardian enters into an agreement
in behalf of several wards who are claimants of one debt, it is established
that they are to be considered as one person, since it is a difficult matter
for one man to represent two persons; for, indeed, lie who has several causes
of action against a party who has only one, is not permitted to represent
(1) We estimate the total amount of indebtedness when several sums are
due; as, for example, where several sums, which together amount to a hundred
aurei, are owing to one man; and a sum of fifty aurei is owing to
another; for, in this instance, we must consider the amount which is made up of
several sums, because when they are added together they are greater than the
(2) We must also add to the principal the interest which is due.
10. Ulpianus, On the Edict, Book IV.
The Rescript of the Divine Marcus provides that all the creditors shall
assemble. But what if some of them are absent? Must those who are absent follow
the example of those who are present? But if the agreement is valid as against
those who are absent, an important question arises, namely, whether this
agreement will bar absent privileged creditors? I repeat that, before the rule
established by the Divine Marcus, the Divine Pius stated in a Rescript: "That
the Treasury also, in those cases where hypothecation does not exist, as well
as other privileged creditors, shall follow the example of the others."
All these rules must be observed with reference to those creditors who
are without security.
(1) Where the stipulation of a penalty has been added to the contract,
the question arises whether an exception on the ground of contract applies, or
whether a suit should be brought on the stipulation? The opinion of Sabinus,
which is the better one, is that he who made the stipulation can take either
course, as he may choose; if, however, he makes use of the exception founded on
the contract, it will be just to release the stipulation.
(2) We are for the most part accustomed to state: "that an exception
founded upon fraud is an aid to an exception founded upon contract"; and then
there are persons who cannot make use of an exception founded upon contract,
but can use one founded upon fraud; which was the opinion of Julianus, and was
endorsed by many others; for example, if my agent should make an agreement, I
could have the benefit of an exception on the ground of fraud, which opinion is
held by Trebatius, who thinks that as an agreement of my agent may injure me,
it may also be to my advantage.
11. Paulus, On the Edict, Book III. For the reason that he can be
12. Ulpianus, On the Edict, Book IV.
For it is established that it will be a source of injury to me, whether
I ordered him to make a contract, or whether he was my general agent; as
Puteolanus states in the First Book on Assessors, since it has been decided
that he also can institute judicial proceedings.
13. Paulus, On the Edict, Book HI.
But if the agent was only appointed for the purpose of bringing an
action, an agreement made by him does not prejudice his principal, for the
reason that he cannot receive payment.
(1) Where, however, the agent was appointed for the transaction of
affairs in which he himself is interested, he is considered to occupy the place
of a principal, and thus any agreement entered into with him must be
14. Ulpianus, On the Edict, Book IV.
Moreover, an agreement made by the head of a company is valid both for
and against it.
15. Paulus, On the Edict, Book HI.
An agreement made by a guardian on behalf of his ward is valid, as is
stated by Julianus.
16. Ulpianus, On the Edict, Book IV.
Where an agreement has been made with the purchaser of an estate, and
the vendor of the same brings an action, an exception on the ground of fraud is
a bar to his proceeding; for, according to a Rescript of the Divine Pius,
equitable actions must be granted to the purchaser of an estate, and it is but
just that a debtor of the estate should be able to make use of an exception on
the ground of fraud, as against the vendor.
(1) Where an agreement has been made between the owner of the property
sold and the purchaser of the same, for instance, that a slave who had been
purchased should be restored to the person who sold him as owner; if he brings
suit for the price he will be barred by an exception on the ground of
17. Paulus, On the Edict, Book HI.
If I give you ten aurei and agree with you that you shall owe me
twenty, no obligation arises for more than ten, for none can be contracted for
a greater amount than has been given.
(1) There are certain rights of action which are annulled under a
contract by operation of law, as, for instance, one for injuries, or one for
(2) A right of action based upon an agreement arises in the case of a
pledge, under prætorian law; it is, however, annulled by an exception
whenever I agree not to sue.
(3) When anyone makes an agreement that no suit shall be brought against
himself, but shall be brought against his heir; an exception filed by the heir
will be of no benefit to him.
(4) If I should agree that no suit shall be brought against me, or
against Titius, this will be of no advantage to Titius, even if he should
become the heir, because this cannot be confirmed subsequently. Julianus
established this rule in the case of a father who made an agreement that suit
should not be brought against him, or his daughter, when the daughter
afterwards became the heir of her father.
(5) Where an agreement has been entered into with the vendor with
reference to the property, it can be pleaded by the purchaser, according to the
opinion of several authorities, and Pomponius states that we make use of this
rule; but, according to Sabinus, when the agreement is personal, it can also be
pleaded against the purchaser. He thinks that this is also the law where a
succession arises through donation.
(6) When the unlawful possession of the estate of another enters into an
agreement, many are of the opinion that the agreement will neither benefit nor
prejudice the heir, if he should recover the estate.
(7) If a son or a slave enters into an agreement that no action shall be
brought against the father or the master.
18. Gaius, On the Provincial Edict, Book I.
(Whether the agreement is made with reference to a former contract with
the parties themselves, or with the father or master).
19. Paulus, On the Edict, Book III.
They are entitled to an exception. The same rule applies to those who
are held in slavery in good faith.
(1) Again, if the son of a family makes an agreement that suit shall not
be brought against him, it will be to his advantage and to that of his father
also, if the latter is sued for the peculium of the son.
20. Gaius, On the Provincial Edict, Book I.
Or for any profit obtained by an obligation contracted by his son, or
where he is sued as a defender of his son, if he should prefer this.
21. Paulus, On the Edict, Book III.
It can also be pleaded by the heir of the father during the lifetime of
his son, but after the death of the son this cannot be done by the father or
his heir, because the agreement is a personal one.
(1) Where a servant enters into an agreement that he shall not be sued,
the agreement is worthless. Let us see whether an exception on the ground of
fraud can be pleaded. When the agreement has reference to property, an
exception based upon the agreement itself can be pleaded by the master and his
heir, but where the agreement is personal, then the exception on the ground of
fraud is only available.
(2) By making an agreement we cannot benefit those who are under our
control; but it will be an advantage to us if we make an agreement in their
behalf, as Proculus states. And this doctrine is correct if this was the
understanding that the time that the contract was entered into; but if I agree
that you shall not bring suit against Titius, and you begin an action against
me in his name, an exception on the ground of contract is not allowed; for what
is no benefit to Titius himself will be of none to his defender. Julianus also
stated that where a father agreed that no suit should be brought either against
him or his son, the better opinion is that the exception on the ground of
contract cannot be pleaded by the son of the family, but merely one on the
ground of fraud.
(3) The son of a family can enter into an agreement not to bring suit
for a dowry when he becomes his own master.
(4) The son of a family can also legally enter into an agreement
concerning a legacy bequeathed to him under some condition.
(5) Where there are several persons who have the right to collect an
entire sum of money, or who are co-debtors for the same sum, the question
arises to what an extent an exception on the ground of contract can be pleaded
by one for, and against the others? An agreement made with reference to the
property will benefit those who have been released from this obligation, where
he who entered into the agreement had an interest in this; and therefore an
agreement of the debtor will be an advantage to the sureties.
22. Ulpianus, On the Edict, Book IV.
Unless it was the intention of the parties that no suit should be
brought against the principal, but that it might be brought against the surety;
in this instance the surety cannot avail himself of an exception.
23. Paulus, On the Edict, Book HI.
An agreement made by the surety would be of no benefit to the principal,
because the surety has no interest in the money not being collected from the
debtor; nor would it be of any benefit to the co-sureties, nor will an
agreement made with another, no matter what his interest may be; for he can
only do this when an exception is granted him and the benefit chiefly enures to
the party with whom the agreement was made, as in the case of a principal
promisor along with those who are bound on his account.
24. The Same, On Plautius, Book III.
Where a surety has bound himself in a matter in which he was interested,
in this instance he is to be considered as a principal debtor; and where an
agreement is made with him, it is held to have been made with the principal
25. The Same, On the Edict, Book III.
The same rule applies where two principal debtors, or two bankers who
are partners, bind themselves.
(1) Labeo says that a personal agreement does riot concern a third
party, nor in fact an heir.
(2) But although the agreement of a surety is of no advantage to the
principal debtor, Julianus says that the latter can, nevertheless, generally
avail himself of an exception on the ground of fraud.
26. Ulpianus, On the Edict, Book IV.
That is to say, it was understood that no suit could be brought against
the principal debtor. The same rule applies to co-sureties.
27. Paulus, On the Edict, Book HI.
Where one of two bankers, who are partners, make an agreement with a
debtor, can an exception be pleaded in bar against the other?
Neratius, Atilicinus, and Proculus, are of the opinion that it can not,
if the agreement relating to the property was made by one of them; for it has
only been settled that the other can bring suit for the entire debt. Labeo
holds the same opinion, because although one of them can receive payment, he
cannot change the obligation; and thus payment of what they have loaned can
properly be made to those who are under our control, but the obligation cannot
be changed; and this is correct. The same rule applies to two creditors under a
(1) Where an informal agreement has been made with a principal debtor
granting him time, neither debtor nor surety will have the benefit of any
further time. If the debtor, without releasing himself, enters into an
agreement that his surety shall not be sued; some authorities think that this
is of no benefit to the surety, even though the principal was interested
therein; for the reason that the same exception should be available to him as
to the principal. I have held that the surety is entitled to the benefit of an
exception, for this would not be the case where a right was acquired through a
free person, but rather one where we have provided for the party himself who
entered into the agreement, which rule is at present in use.
(2) After an agreement has been made that suit shall not be brought, and
it is subsequently agreed that it may be, the former agreement is annulled by
the latter one; not indeed by operation of law, as one stipulation is
extinguished by another, where this is the intention of the parties, because
the law governs stipulations, and in contracts all depends upon the facts;
therefore an exception is rebutted by a replication. On the same principle it
happens that the first agreement will not release the sureties. But where the
first agreement was of such a character that it extinguished the right of
action, as, for instance, in a case of injury, suit cannot subsequently be
brought after making the agreement that this can be done; because the first
right of action was lost, and an agreement made afterwards has no effect to
bestow a right of action, and an action for injury cannot be based on a
contract, but only on insulting behavior. We say that the same rule applies in
the case of bona-fide contracts, where the agreement annuls the entire
obligation, as, for example, in the case of a purchase; for the prior
obligation is not revived by a new contract, but it would be an advantage to
it. But where the entire contract was not abrogated, but something in it was
excluded, the second agreement acts as a renewal of the first. This can take
place in an action for dowry, for example, where a woman makes an agreement
that her dowry shall be restored to her without delay, and afterwards enters
into one that it shall be returned to her at the time authorized by law; in
this instance the dowry will revert to her in accordance with the law, nor can
it be stated that the condition of the dowry becomes any worse by reason of the
agreement; for as often as the right of action for a dowry resumes the
condition with which the Law of Nature invested it, the state of the dowry does
not become worse, but is restored to its original form. This opinion was also
held by Scævola.
(3) It cannot be provided by agreement that a person shall not be
responsible for bad faith; for although a party may agree not to bring suit for
a deposit, he seems by the terms of the contract to agree not to bring an
action on the ground of fraud, and an agreement of this kind can be
(4) Agreements which contain immoral provisions should not be observed;
as, for instance, if I agree not to sue you for theft or injury, if you commit
them; for it is proper that the fear of punishment for theft or injury should
exist. After these offences have been committed, however, we can make an
agreement. In like manner, I cannot agree that I will not apply for an
interdict for violence, so far as this affects the interest of the public. And,
in general, where the agreement extends beyond the interest of individuals, it
should not be observed. And, above all things, it must be borne in mind that an
agreement made with reference to one thing or to one person, shall not injure
another thing or another person.
(5) Where you owe me ten aurei, and I contract not to sue you for
twenty, it is established that you are entitled to an exception on the ground
of contract, or on the ground of fraud, to the amount of ten aurei.
Again, if you owe me twenty aurei, and I agree to only sue you for
ten; the result will be that, if you oppose an exception to me, I can only
exact from you the payment of the remaining ten.
(6) But where, having stipulated for ten aurei, or Stichus, I
make an agreement with you for ten, and then bring suit for Stichus or the ten
aurei, if an exception is pleaded on the ground of contract, the right
of action will be absolutely extinguished; for, as the entire obligation will
be discharged by payment, or by a suit, or by a lease of one of the two things;
so, when an agreement is entered into not to bring suit for one thing, the
entire obligation is disposed of. But where it is understood between us that
ten aurei shall not be given to me, but that Stichus shall be, I can
legally bring suit for Stichus, and no exception can be pleaded against me. The
same rule applies where an agreement was made not to bring suit for
(7) But where you owe me a slave in general terms, and I agree not to
bring suit for Stichus, an exception on the ground of contract can be pleaded
against me, if I bring suit for Stichus; but if I bring suit for another slave,
I am acting properly.
(8) Moreover, if I make an agreement not to bring suit for an estate,
and, acting as heir, I bring suit for certain pieces of property, an exception
on the ground of contract can be pleaded against me with respect to what is
agreed upon; just as if the agreement had been that I should not sue for a
tract of land, and I bring an action for the usufruct of the same; or, having
agreed not to bring suit for a ship, or a building, I bring an action for
certain parts of them, after they have been demolished; unless there is some
express understanding to the contrary.
(9) Where a release is not valid, it is held to be understood by tacit
agreement that suit shall not be brought.
(10) A slave cannot make an agreement on behalf of the heir who is about
to enter upon the estate, because the latter is not yet his master; but if the
agreement was made with reference to property, it can be acquired by the
28. Gaius, On the Provincial Edict, Book I.
Agreements entered into against the Civil Law are not considered valid;
as, for instance, where a ward, without the consent of his guardian, enters
into an agreement not to sue his debtor, or that he will not bring suit within
a certain time (for example, within five years) for he cannot legally receive
payment without the consent of his guardian. On the other hand, if a ward makes
an agreement that he shall not be sued for what he owes, the agreement is held
to be valid, for he is permitted to improve his condition without the consent
of his guardian.
(1) Where the curator of an insane person or a spendthrift makes an
agreement that suit shall not be brought against the said insane person or
spendthrift, it is perfectly proper that such an agreement of the curator
should be sustained, but not in the contrary case.
(2) Where a son, or a slave makes an agreement that he himself will not
bring an action, the agreement is void. But if it was made with reference to
property, that is to say that suit shall not be brought for the money, it must
be held to be valid as against the father or the master, if the son or the
slave has the unrestricted management of his own peculium; and the
property concerning which the agreement was entered into is his peculium.
This, however, is not altogether advisable, for since it is true, as
Julianus holds, that he who has the management of his peculium granted
him still has no right to dispose of it; it follows that if the agreement was
made not to sue for the money for the purpose of giving it away, the contract
should not be allowed to stand; but if he should obtain something, by way of
consideration for making the contract, which is worth not less, or even more
than he gives, the contract must be considered valid.
29. Ulpianus, On the Edict, Book IV.
But if he lends his master's money, Celsus says that what he agreed upon
at the time of the loan is valid.
30. Gaius, On the Provincial Edict, Book I.
Let us consider, with reference to the son of a family, whether the
agreement is valid when he agrees not to bring suit, because sometimes the
father of a family has a right of action, for example, for injury; however,
where a father has a right of action on account of an injury done to his son,
there is no doubt that if he wishes to bring suit he will not be barred by the
agreement of his son.
(1) Where a man stipulated with a slave for money which Titius owed him,
and brings suit against Titius, the question arises whether he can and should
be barred by an exception on the ground of contract? Julianus thinks that he
should be barred where the stipulator has a right of action against the master
of the slave for his peculium, that
is to say, if the slave has good ground for interposing, because, for
instance, he owed the same amount to Titius. But where the slave intervenes as
surety, a right of action is not granted for his peculium, on this
ground; nor should the creditor be prevented from bringing suit against Titius.
In like manner, he should, by no means, be prevented from doing so if he
thought that the slave was a freeman.
(2) If I should stipulate with you under a condition for a sum which
Titius owes me absolutely, and the condition should not be fulfilled, and I
bring suit against Titius, can I and should I be barred by an exception based
upon contract? The better opinion is that an exception cannot be
31. Ulpianus, On the Edict of the Curule Ædiles, Book
It is allowed at all times to enter into a contract contrary to the
Edict of the Ædiles, whether this is done at the time of making the sale,
32. Paulus, On Plautius, Book V.
Where it is stated that, when an agreement is made with the principal
debtor that suit shall not be brought against him, the surety is also entitled
to an exception; and this was established for the benefit of the debtor, to
prevent an action of mandate being brought against him. Therefore, if no action
of mandate will lie, for instance, because the party became a surety with the
intention of donating the debt, it must be held that the surety is not entitled
to an exception.
33. Celsus, Digest, Book I.
A grandfather promised a dowry on behalf of his granddaughter by his
son, and agreed that an action should not be brought for the dowry, either
against himself or his son. Then, if an action for the dowry is brought against
a party who is the co-heir of the son, the former cannot protect him by
pleading an exception on the ground of contract; the son, however, can very
properly make use of it, since a party is permitted to consult the best
interest of his heir, and there is nothing in the way of his providing for one
of his heirs, if he should become an heir, and not consult the interest of the
34. Modestinus, Rules, Book V.
It is the opinion of Julianus that the right of agnation cannot be
renounced, any more than anyone can say that he does not wish to be a proper
35. The Same, Opinions, Book II.
Two brothers, Titius and Mævius, and a sister Seia, divided an
estate between them, which they held in common, and executed an instrument in
which they stated that they divided the estate of their mother, and alleged
that no property held in common by them remained. Afterwards, however, two of
them, namely, Mævius and Seia, who were absent at the time of their
mother's death, learned that a sum of money in gold had been abstracted by
their brother, of which sum no
mention was made in the instrument of partition. I desire to know
whether, after the agreement for partition was made, an action for the recovery
of the money which had been abstracted would lie in favor of the brother and
sister against the other brother? Modestinus answered that if, when they
brought suit for a portion of the money which was said to have been abstracted
by Titius, an exception was pleaded against them under a general contract, when
they ignorantly agreed to the fraud which had been committed by Titius, they
could avail themselves of a replication on the ground of fraud.
36. Proculus, Epistles, Book V.
Where you are in possession of land belonging to me, and I make an
agreement with you that you shall deliver possession of the same to Attius, and
I bring suit to recover the property from you, I cannot be barred by an
exception based upon contract, unless you have already delivered possession of
the property, or the agreement between us made for your benefit, and it is not
your fault that you did not deliver it.
37. Papirius Justus, On Imperial Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript, "That a debtor to
the Republic could not be released from payment by the curator, and that the
release granted to the people of Philippi must be revoked."
38. Papinianus, Questions, Book II.
Public law cannot be changed by the contracts of private persons.
39. The Same, Questions, Book V.
It was established by the ancients that where an agreement was obscure
or ambiguous, it must be construed against a vendor and a lessor, because it
was in their power to have stated the terms of the contract more clearly.
40. The Same, Opinions, Book I.
A contract stated as follows: "I acknowledge that you are not
bound", is not limited to the person, but, since it is general, it will apply
to heirs as well as litigants.
(1) Where a party who appeared entered into an agreement that, within a
certain time, he would satisfy the judgment, if the sum which he agreed to pay
by way of compromise was not paid within the time; the appellate judge, without
reference to the principal point at issue, shall act upon this as a lawful
agreement, just as if the party had admitted his liability.
(2) After the division of an estate and of its liabilities, where the
different creditors have accepted interest from the separate co-heirs for the
entire amount of the indebtedness, without any assignment of liabilities, as
had been agreed upon; the right of action possessed by the creditors against
each heir for his respective share shall not be inter-
fered with, unless the heirs do not offer to pay the entire indebtedness
to them, in compliance with the terms of the settlement.
(3) A father who promised a dowry to his daughter and agreed: "That if
she should die after him without leaving any children, a portion of the dowry
shall belong to her brother, who will be her heir". If her father should
afterwards have children, and make them heirs by his will, this agreement will
give rise to an exception on the ground of fraud, since it was understood
between the contracting parties that the heir should be provided for; and, at
that time, when the father had no children, he appeared to express his last
wishes for the benefit of the brother.
41. The Same, Opinions, Book XI.
"If you will pay me a part of your debt by a certain time I will give
you a release for the remainder, and discharge you from liability." While no
right of action exists under these circumstances, nevertheless, it is settled
that the debtor has a right to an exception.
42. The Same, Opinions, Book XVII.
It was agreed between a debtor and a creditor, "That the creditor should
not assume the burden of paying the tax on land which was encumbered, but that
the necessity of payment should be imposed upon the debtor". I have answered
that an agreement of this kind is not to be observed, so far as the Treasury is
concerned, for it is not permissible that a rule of law affecting the Treasury
should be overthrown in the interest of private individuals.
43. Paulus, Questions, Book V.
In making sales we know what acts the debtor must perform on the one
hand, and what the purchaser must do on the other; but if any different terms
are inserted in the contract they must be observed.
44. Scævola, Opinions, Book V.
Where a minor was about to reject the estate of his father, his guardian
made an agreement with several creditors of the estate that they would accept a
certain proportion of their indebtedness. The curators of the minor made the
same compromise with other creditors; and I ask whether the guardian, being
himself a creditor of the father, was entitled to retain the same proportion of
the debt? I have answered that the guardian who had induced the other creditors
to accept a percentage of what was due, ought himself to be content with a
45. Hermogenianus, Epitomes of Law, Book II.
A contract for partition, which has not been concluded by either
delivery or stipulation, being a mere agreement without consideration, does not
confer a right of action.
46. Tryphoninus, Disputations, Book II.
An agreement entered into between an heir and a legatee, by which the
latter agrees not to take security from the former, has been held to
be valid; as a Constitution of the Divine Marcus recorded in the
Semestria,1 sets forth that the will of the deceased
shall be observed in this, as well as in other matters; and the release of
security to the heir by the legatee under contract cannot be revoked if he
changes his mind; as it is entirely lawful for a man to change for the worse
his power to enforce his legal right, or his hope of future payment.
47. Scævola, Digest, Book I.
The purchaser of a tract of land bound himself for the payment of twenty
aurei, and agreed to this by stipulation; and afterwards, the vendor
entered into an undertaking that he would be content with thirteen, and would
accept payment of that amount within a specified time. Suit having been brought
against the debtor for the payment of the latter sum, he agreed that, if it was
not paid within another specified period, it could be collected from him in
accordance with the bond first executed. The question arose as to whether the
whole debt could not be collected under the first obligation, since the debtor
had not complied with the terms of the later agreement? I answered that it
could, in accordance with what had been stated.
(1) Lucius Titius had a confused account with Gaius Seius, a money
broker, for the reason that he had received and paid him different sums. In the
end, Seius owed him money, and Lucius Titius received a letter from him in the
following words: "According to the broker's account which you have with me up
to this date, there remains in my hands as the result of many transactions the
sum of three hundred and eighty six aurei, and the interest upon the
same. I will return to you the amount which you have in my hands without
agreement. If any instrument issued, that is to say, written, by you, remains
in my hands for any reason, no matter what the amount therein may be, it shall
be considered void and cancelled". The question arose, since Lucius Titius had
ordered Seius, the broker, to pay his patron three hundred aurei, before
this letter was written, whether, according to the terms of the letter, by
which all undertakings pertaining to any contract whatever were to be
considered void and cancelled, it was provided that neither Seius nor his sons
could be sued on this ground? I answered that if the account only included the
receipts and payments, other obligations remained in the same condition.
48. Gaius, On the Law of the Twelve Tables, Book V.
It is evident that every agreement made at the time of the delivery of
property is valid.
49. Ulpianus, On Sabinus, Book XXXVI.
When anyone loans money, and agrees that he will only bring suit against
the debtor for the amount that he is able to pay, is such a contract valid? The
better opinion is that this contract is valid, as there is
1 The Semestria were the collections of decisions
rendered in the Imperial Councils. Hence they were practically reports of the
proceedings of the highest court of the Empire. — ED.
nothing improper for anyone to consent to be sued for an amount which
his means permit.
50. The Same, On Sabinus, Book XLIII.
I do not think that it is inadmissible to insert in a contract of
deposit loan, hire, and others of the same description, an agreement of this
kind, namely: "You must not make my slave a thief"; that is to say, you must
not solicit him to become a thief, or a fugitive, nor must you neglect him to
such an extent that he will commit theft; for as an action will lie for the
corruption of a slave, so this agreement which relates to the prevention of the
corruption of slaves will stand.
51. The Same, On the Edict, Book XXVI.
If you think that on account of a legacy you are obliged to make an
agreement with your debtor that you will not bring suit against him; your
debtor is not released by operation of law, nor can he bar your suit by means
of an exception on the ground of contract, as Celsus has stated in the
(1) He also said in the same place, "If you think incorrectly that you
are obliged to pay a legacy to Titius, and you direct your debtor to pay it to
him, and the latter, being at the same time, his debtor, makes an agreement
with Titius not to sue him; this will not extinguish your right of action
against your debtor, or his against his debtor either."
52. The Same, Opinions, Book I.
A letter by which a party bound himself that a certain person was his
co-heir, confers no right of action against parties in possession of the
(1) If an agreement is made between a debtor and the party who purchased
a tract of land held in pledge by the creditor, under the pretext that this was
done on behalf of the debtor, so that the profits already obtained might be set
off against the debt, and that the balance should be settled, and the tract
returned to the debtor; then the heir must carry out the contract made by the
(2) An agreement which provides, "But where the creditor has paid any
sums for taxes on real property held by him in pledge, he can recover the same
from the debtor, and the debtor must pay any taxes due upon the same tract of
land"; this is a legal contract and therefore must be observed.
(3) Where a party was about to bring suit to set aside an inofficious
will made by his father, and an agreement was entered into that he should
receive a certain sum of money as long as the heir lived, an attempt was made
to have this agreement construed as a perpetual obligation; but it was stated
in a rescript that a claim of this kind could not be admitted on any ground of
law or equity.
53. The Same, Opinions, Book IV.
It is entirely proper to advance the expenses of a suit to a party
engaged in litigation, but it is not legal to enter into an agreement that
the sum expended for that purpose shall not be paid with lawful
interest, but that half the amount recovered by the suit shall be paid.
54. Scævola, Notes on Julianus, Digest, Book XXII.
If I agree not to make a claim for Stichus, to whom I am entitled, it is
not understood that my debtor is in default; and if Stichus dies, I do not
think that the defendant is liable, if he was not in default before the
contract was entered into.
55. Julianus, Digest, Book XXXV.
Where a debtor has an usufruct in a slave, and the slave in whom he
enjoys said usufruct makes an agreement that suit shall not be brought against
the debtor, by doing so he improves the condition of the latter. Likewise, if a
creditor possesses such an usufruct, and agrees not to bring suit, and the
slave then agrees that the creditor may do so, the creditor, by virtue of the
agreement made by the slave, can properly claim the right to bring an
56. The Same, On Minicius, Book VI.
Where for some reason an agreement is made that a landlord shall not sue
his tenant, and there is good cause for such an agreement, the tenant,
nevertheless, can bring an action against his landlord.
57. Florentinus, Institutes, Book VIII.
Where a man accepts interest from a debtor in advance, it is held to be
a tacit agreement that he will not bring suit for the principal during the time
for which the interest is paid.
(1) Where a contract is drawn up in such a way that it is personal on
one side, and relates to property on the other; as, for instance, that I will
not bring suit, or that you shall not be sued; my heir will then have a right
of action against all of you, and all of us will have a right of action against
58. Neratius, Parchments, Book III.
There is no doubt that the parties can withdraw in all contracts
relating to purchase, sale, leasing, hiring, and other similar obligations,
where everything remains the same by the common consent of those who have bound
themselves. The opinion of Aristo goes still farther, for he thinks that if I
have performed all the acts which it was necessary for me to perform as vendor,
with regard to the property sold to you; and, while you still owe me the
purchase money, it is agreed between us that you shall restore to me everything
relating to the property sold, which was delivered to you by me, and that you
shall not pay the purchase money; and, in accordance with this, you do return
it to me, you will cease to owe me the money; because good faith which governs
matters of this kind admits of this interpretation and agreement. It does not
matter whether the agreement is made to abandon the contract, all things as to
which we bound ourselves remaining the same; or whether you return everything
which I delivered to you, and we then agree that you shall not give me anything
on account of the contract. It is certain
that the following cannot be accomplished by a contract which has
reference to annulling what has been done; that is, that you may be compelled
to return to me what I have already given you; since, in this way, the business
would be transacted not so much by annulling our former contract, as by
creating new obligations between ourselves.
59. Paulus, Rules, Book HI.
Whenever any benefit can be obtained by us through a stipulation, it is
established that our condition is improved by agreements made by the same
60. Papirius Justus, Constitutions, Book VIII.
The Emperor Antoninus stated in a Rescript to Avidius Cassius: "That if
creditors would be satisfied with a portion of their debts out of an estate,
even though this was done through a stranger, those who were nearly related to
the deceased must be first considered, if they were solvent".
61. Pomponius, On Sabinus, Book IX.
No one, by entering into an agreement, can bring it about that he will
not be able to consecrate his own ground, or bury a corpse on his own land, or
dispose of his property without the consent of his neighbor.
62. Furius Anthianus, On the Edict, Book I.
Where a debtor, after having agreed that suit shall not be brought
against him for the debt (in such a way that the contract also benefits the
surety), made another contract that suit may be brought against him; the
question arose as to whether the surety was deprived of the benefit of the
first agreement? It is the better opinion that where the right to an exception
has been once acquired by the surety, it cannot afterwards be taken from him
without his consent.
TITLE XV. CONCERNING COMPROMISES.
1. Ulpianus, On the Edict, Book L.
When a man makes a compromise with reference to something which is in
doubt, and the issue of the trial is uncertain, the compromise is not brought
to a termination; but he who makes an agreement surrenders by way of donation
through liberality, something which is certain and undisputed.
2. The Same, On the Edict, Book LXXIV.
Anyone can accept a compromise, not only where the Aquilian stipulation
is inserted, but also where an agreement is entered into.
3. Scævola, Digest, Book I.
The Emperors Antoninus and Verus stated in a Rescript, "That there is no
doubt that private agreements which have been entered into
do not prejudice the rights of others"; therefore, where a compromise
has been made between the heir and the mother of the deceased, the will cannot
be held to be rescinded by it, nor are manumitted slaves or legatees deprived
of their rights of action thereby. Hence, when they bring suit for anything
under the will, they must sue the heir mentioned therein; who, when he
compromised matters connected with the estate, whether he provided for himself
with reference to the burdens attached to it, or whether he did not do so, he
has no right to permit his own negligence to injure others.
(1) When a compromise is entered into with regard to a trust, and
afterwards codicils are found; I ask, if the mother of the deceased has
received less through the compromise than her share, ought she to receive what
is lacking by virtue of the trust? The answer was that she
(2) A debtor whose pledge had been sold by his creditor compromised for
a smaller sum with Mævius, who claimed to be the heir of the lawful
creditor, and afterwards the will of the creditor having been produced, it
appeared that Septicius was the heir. The question then arose whether, if the
debtor brought suit against Septicius for the property pledged, he could make
use of an exception on the ground of the compromise made with Mævius, who
was not the legal heir at that time; and can Septicius have a right to recover
the money which was paid by the debtor to Mævius as the heir, on the
ground that it was received by him under the pretext of inheritance? The answer
was that this could not be done, according to the facts stated, for the reason
that Septicius did not himself make a compromise with him, nor was
Mævius, when he accepted it, acting as the agent of Septicius.
4. Ulpianus, On Sabinus, Book XLVI.
The Aquilian stipulation absolutely changes and annuls all preceding
obligations, and is itself annulled by a release; and this is now our practice.
Therefore, even bequests which are made conditionally come under the Aquilian
5. Papinianus, Definitions, Book I.
When the Aquilian stipulation is made use of, the consent of the
contracting parties is implied, and any actions which they had not yet thought
of remain in their former condition; for the interpretation of persons learned
in the law is opposed to all captious liberality.
6. Gaius, On the Provincial Edict, Book XVII.
In controversies arising out of a will no compromise can take place, nor
can the truth of the facts be inquired into, unless an examination and
interpretation of the words of the will is made.
7. Ulpianus, Disputations, Book VII.
A compromise is valid even after judgment has been rendered, if an
appeal has been, or can be taken.
(1) Where a surety was sued, and judgment rendered against him, and
afterwards the principal made a compromise with the party who
obtained the judgment against the surety; the question arises, was the
compromise valid? I am of the opinion that it was, and that every cause of
action against both principal and surety was removed. If, however, the surety
himself made the compromise after he lost his case, while the judgment was not
annulled by the compromise, still, it should be considered as settled, so far
as anything which was paid is concerned.
(2) It is so true, however, that what was paid in this case even though
it does not dispose of the compromise still diminished the amount of the
judgment, that it may be held, and it is, in fact, contained in a rescript in a
case where a compromise was entered into without permission of the
prætor, that what had been paid should be applied to the furnishing of
maintenance, and whatever, in addition, was due on account of maintenance must
be provided, but what had already been paid should be credited.
8. The Same, On all Tribunals, Book V.
When those to whom provision for maintenance has been left, were ready
to make a compromise, and were satisfied with a moderate sum to be paid to them
at once; the Divine Marcus stated in an Address delivered in the Senate: "That
no compromise with reference to maintenance should stand, unless it was made
under the authority of the prætor". Therefore the prætor is
accustomed to intervene and decide between the contracting parties whether the
compromise is one which should be admitted.
(1) Whether provision for a house, or for clothing, or for maintenance
dependent on real-estate is bequeathed, the inquiry of the same prætor
with reference to the compromise must be held.
(2) The above-mentioned Address relates to provision for maintenance
left either by will or codicil, whether it was added to the will, or the party
died intestate. The same rule is applicable where the provision was made by a
donation mortis causa or where a charge was imposed upon anyone. Where
bequests are made for the purpose of fulfilling a condition, we say that the
rule is the same. It is evident that a compromise can be entered into without
the authority of the prætor when provision for maintenance is not made
(3) The Address applies to sums to be paid monthly or daily or annually,
and the same rule is applicable where they are not left for life, but only for
a certain term of years.
(4) Where a certain sum is bequeathed to anyone in order that he may
support himself with the interest of the same and restore the entire amount at
the time of his death; the Address will still apply, although the amount cannot
be held to be paid annually.
(5) Where, however, a certain sum of money, or a certain amount of
property is left to Titius, in order to provide for the support of Seius, the
better opinion is that Titius can compromise; for by this act of Titius the
maintenance of Seius is not diminished. The same rule applies where property
was left to the legatee under a trust in order to provide for maintenance.
(6) The Address forbids a compromise which is made in such a way that
anyone can spend at once the amount which is given him. What would be the case
then, if a party made a compromise without the authority of the prætor,
to the effect that whatever was payable to him annually by the bequest, he
should receive each month? Or what should be done if he received every day what
had been left to him to be paid every month? Or how would it be if what he had
a right to receive at the end of a year, should be received by him at the
beginning? I am of the opinion that an arrangement of this kind is valid,
because the party to be supported improves his condition by such a transaction;
and that the Address of the Emperor did not intend that the maintenance of
persons should be cut off by a compromise.
(7) It makes no difference whether the parties for whom provision for
maintenance is made are freedmen, or freeborn, rich, or poor.
(8) The Address also directs inquiry to be made before the prætor
with reference to the following matters; in the first place, concerning the
cause of the compromise; second, concerning its terms; third, concerning the
personal characters of the parties to the transaction.
(9) With reference to the cause, it must be ascertained what reason
exists for making the compromise for the prætor will hear no one who
desires to make a compromise without sufficient cause. The reasons which are
usually alleged are the following, namely: where the heir and the party to be
supported reside in different places; or where either of them intends to change
his residence; or where there is some urgent reason for a sum of money to be
paid at the time; or where provision for maintenance has been charged upon
several heirs, and it is difficult for them to distribute small sums of money
among different persons; or where any other reason exists among those which
usually arise, and which may induce the prætor to sanction the
(10) The amount of money involved in the transaction must also be
considered, for the good faith of the parties is to be determined in this way.
The amount must also be estimated according to the age and condition of health
of the person who is making the compromise, as it is clear that it must vary in
the cases of a boy, a young man, or one who is old; and it is evident that a
provision for maintenance will end with the life of the party for whose benefit
it was made.
(11) The character of the persons must also be taken into consideration;
that is to say, what are the habits of life of those for whom provision is
made, whether they are frugal and have sufficient for their maintenance from
other sources; or whether they are of an inferior class, who will be compelled
to depend entirely upon the provision made for them. With regard to the person
who is charged with furnishing maintenance, these things must be investigated
namely, what his means are, as well as his intentions and his opinions, for it
will then be apparent whether he desires to ever reach the party with whom he
makes the compromise or not.
(12) A compromise made with respect to maintenance, does not apply to
lodging or clothing; as the Divine Marcus ordered that special arrangements
should be made with reference to these matters.
(13) Where, however, anyone makes a compromise with respect to
maintenance, it will not be considered necessary for him, against his will, to
make any arrangement concerning lodgings, or other matters; he can, therefore,
enter into an agreement with reference to all things at once, or only
concerning a few.
(14) A compromise with respect to a provision for shoes must also be
made under the authority of the prætor.
(15) Where real-estate charged with maintenance has been left to one or
several persons, and they desire to alienate it, it is necessary for the
prætor to decide concerning both the alienation and the compromise. Where
real-estate charged with maintenance is left to several persons, and these make
a compromise among themselves without the consent of the prætor, the
compromise should not be sustained. The same rule applies where land is given
as security for maintenance, for, where a pledge is given for this purpose, it
cannot be released without the authority of the prætor.
(16) It is perfectly manifest that the consent of the prætor is
necessary where a compromise is made for the entire amount of the maintenance,
or only for a portion of the same.
(17) If, when application is made to the prætor, he permits a
compromise to be made without an investigation of the case, the transaction
will be void; for the matter is referred to the prætor to be examined,
and not to be neglected, or given up. If, however, he does not make inquiry
about everything which he is directed to do by the Address; that is to say,
about the cause, the amount, and the character of the parties to the
transaction, it must be held that even though he investigates some matters, the
compromise is void.
(18) Neither the Governor of the province, nor the prætor can
delegate his jurisdiction in a matter of this kind.
(19) Compromises with respect to maintenance can also be made in the
presence of the Imperial Procurator; for example, where maintenance is claimed
from the Treasury, and hence this can be done in the presence of the Prefect of
(20) Where an action is pending with reference to provision for
maintenance, and a compromise is made, it will not be valid without the
authority of the prætor; as otherwise the Address of the Emperor might be
evaded; for pretended suits could be brought, in order that a compromise might
be arranged without the consent of the prætor.
(21) Where provision for maintenance is left to anyone, and in addition
to this a legacy which is to be paid immediately, and a compromise is made
without the authority of the prætor; whatever may be paid is first
credited on the legacy which was made payable without delay, and the remainder
on the provision for maintenance.
(22) Where anyone makes a compromise with reference to maintenance,
without the authority of the prætor, whatever is paid will be applied to
the settlement of what is due on the maintenance; for it makes no difference
how much the arrears were, or whether they were more or less than the amount
paid; for if they are less, still the payment must be credited on the arrears
of the provision for maintenance.
And it is clear that if he who made the compromise with respect to
maintenance, became more wealthy by the payment, it will be perfectly just that
the other party should have an action to recover the amount by which he became
more wealthy, for no one ought to profit by the loss of another.
(23) Where a certain sum to be paid annually, as, for instance, an
annual pension or an usufruct has been left by anyone to a man of superior
rank, a compromise can be made without the authority of the prætor. But,
if a moderate usufruct has been left, instead of a provision for maintenance, I
say that a compromise made without the authority of the prætor is of no
force or effect.
(24) Where provision has been made for the maintenance of a person, not
in money but in grain, oil, and other articles which are necessary for
subsistence, a compromise cannot be arranged with respect to them, whether the
payments are to be made to him annually, or monthly. Where, however, the
compromise made without the prætor's authority was, that he should,
instead of the articles, receive a certain sum of money payable either
annually, or monthly, and neither the date nor the amount was changed, but only
the nature of the article; or if, on the other hand, he agreed to receive
subsistence in kind, which had been left to him in money; as where he changed
wine for oil, or oil for wine, or anything else of this description; or changed
the place so as to receive the provision left to him at Rome, in some town, or
in some province, or vice versa; or if he changed the person, so as to
receive from one what he should have received from several; or accepts one
debtor instead of another; all these things must be submitted to the decision
of the prætor, and be determined for the benefit of the party entitled to
(25) Where a certain sum, payable annually for lodging, has been left,
any transaction which is entered into for the furnishing of lodging without the
authority of the prætor is valid; since the party obtains the benefit of
the lodging, although the compromise may afford a lodging liable to demolition,
or fire. On the other hand also, if he agrees that a stated sum shall be paid
him instead of the lodging which was bequeathed, the transaction is valid, even
without the prætor's authority.
9. The Same, Opinions, Book I.
A party brought an action against his guardians with reference to his
share of the estate administered under their guardianship, and compromised the
case. If, having become an heir of his brother, he brought suit against the
same guardians as his brothers' representative, he will not be barred by their
pleading the compromise which was effected.
(1) Where a compromise of any description is made, it is considered to
be restricted to those matters concerning which the parties have agreed among
(2) Where a party, being ignorant of all the existing conditions of the
case through the deceit of his co-heir, executed an instrument of
compromise without the Aquilian stipulation, he is held rather to have
been deceived than to have made an agreement.
(3) Where a son who is not yet informed that he has a right to bring an
action to set aside the will of his father, compromises other matters with his
adversaries by an agreement; the agreement which he entered into will only
prejudice him with reference to such things as it is proved that they were
intended to do, even though one party who made the compromise was over
twenty-five years of age; for, as far as relates to anything ascertained
afterwards for which he was entitled to bring an action, it would be unjust to
hold that the transaction extinguished rights which had not yet been
10. The Same, Opinions, Book I.
It is settled that where a father makes a compromise with reference to
the rights of sons who are not under his control, they are not prejudiced by
11. The Same, On the Edict, Book IV.
After judgment has been rendered, even if no appeal is taken, still,
where the fact that judgment has been rendered is denied, or it is possible for
the party to be ignorant whether the judgment was rendered or not; then, as a
trial may still take place, a compromise can be effected.
12. Celsus, Digest, Book III.
It should not be tolerated that a party may make a compromise with
reference to legacies left to him in general terms by will, and afterwards
claim that his object was not to compromise except with reference to what was
left him in the first part of the will, and not with reference to what was left
him in the last part. But where codicils are produced, I think that he could
not improperly say to me that he only was thinking about what was contained in
those pages of the will of which he knew at the time of the transaction.
13. Æmilius Macer, On the Five Per Cent Law Respecting
Inheritances, Book I.
It is not lawful for an Imperial Procurator to make a compromise without
the authority of the Emperor.
14. Scævola, Opinions, Book II.
A controversy arose between an heir-at-law and a testamentary heir, and
a compromise having been made, the matter was settled under certain conditions.
I desire to know against whom the creditors can bring an action. The answer was
that if the creditors were the same who made the compromise, whether others
were present or not, on account of the uncertainty of the succession, an action
should be brought against each one of the heirs for the share of the estate
which each obtained by virtue of the compromise.
15. Paulus, Sentences, Book I.
It is customary for the Aquilian stipulation to be inserted in every
contract, but it is more prudent to add to it a penal stipulation, be-
cause if the contract is rescinded, suit can be brought for the penalty
under the stipulation.
16. Hermogenianus, Epitomes of Law, Book I.
He who breaks faith in a lawful compromise is not only barred by an
exception, but also can be forced to pay the penalty which he has promised in
proper form to pay to the stipulator if he violated the contract.
17. Papinianus, Questions, Book II.
The vendor of an estate having assigned his rights to the purchaser,
made a compromise with a debtor to the estate who did not know that it had been
sold. The purchaser of the estate should take measures to collect the debt, and
an exception on the ground of business transacted is granted the debtor because
of his ignorance. The same rule applies to the case of a man who received an
estate by virtue of a trust, if the heir makes a compromise with a debtor who
is not aware that this has been done.