THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. X
CINCINNATI
THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME X.
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XLIII.
TITLE XXI. CONCERNING THE INTERDICT HAVING REFERENCE TO CONDUITS .......... 3
TITLE XXII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SPRINGS ....... 5
TITLE XXIII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SEWERS ........ 7
TITLE XXIV.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO WORKS UNDERTAKEN BY VIOLENCE OR CLANDESTINELY ........................ 8
TITLE XXV. CONCERNING THE WITHDRAWAL OF OPPOSITION ...................... 23
TITLE XXVI. CONCERNING PRECARIOUS TENURES ................................. 24
TITLE XXVII.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE CUTTING OF TREES ...................................................... 31
TITLE XXVIII.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE GATHERING OF FRUIT WHICH HAS FALLEN FROM THE PREMISES OF ONE PERSON UPON THOSE OF ANOTHER .................................... 32
TITLE XXIX.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF A PERSON WHO Is FREE .............................. 32
TITLE XXX.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF CHILDREN AND THEIR RECOVERY ............................. 35
TITLE XXXI. CONCERNING THE INTERDICT UTRUBI ............................... 37
TITLE XXXII.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE REMOVAL OF TENANTS ................................................... 37
TITLE XXXIII. CONCERNING THE SALVIAN INTERDICT .............................. 3g
BOOK XLIV.
TITLE I. CONCERNING EXCEPTIONS, PRESCRIPTIONS, AND PRELIMINARY INQUIRIES .. 39
TITLE II. CONCERNING THE EXCEPTION BASED ON RES JUDICATA ................ 44
TITLE III.
CONCERNING DIFFERENT TEMPORARY EXCEPTIONS AND THE UNION OF SEVERAL POSSESSIONS ......................................... 54
TITLE IV. CONCERNING THE EXCEPTION FOUNDED ON FRAUD AND FEAR ........... 59
TITLE V. UNDER WHAT CIRCUMSTANCES AN ACTION SHALL NOT BE GRANTED .... 72
TITLE VI. CONCERNING PROPERTY IN LITIGATION .............................. 74
TITLE VII. CONCERNING OBLIGATIONS AND ACTIONS ............................. 75
SEVENTH PART. BOOK XLV.
TITLE I. CONCERNING VERBAL OBLIGATIONS ................................. 91
PART II. CONCERNING VERBAL OBLIGATIONS ................................. 105
PART III. CONCERNING VERBAL OBLIGATIONS ................................. 131
TITLE II. CONCERNING THE LIABILITY OF Two OR MORE PROMISORS .............. 141
TITLE III. CONCERNING THE STIPULATIONS OF SLAVES .......................... 145
BOOK XLVI.
TITLE I. CONCERNING SURETIES AND MANDATORS ............................. 155
TITLE II. CONCERNING NOVATIONS AND DELEGATIONS ......................... 175
TITLE III. CONCERNING PAYMENTS AND RELEASES ............................. 182
TITLE IV. CONCERNING RELEASE ............................................ 217
TITLE V. CONCERNING PRAETORIAN STIPULATIONS ............................ 223
TITLE VI. CONCERNING SECURITY FOR THE PROPERTY OF A WARD OR MINOR ....... 225
TITLE VII. CONCERNING SECURITY FOR THE PAYMENT OF A JUDGMENT ............ 228
TITLE Vill. CONCERNING SECURITY FOR RATIFICATION ........................... 235
BOOK XLVII.
TITLE I. CONCERNING PRIVATE OFFENCES ................................... 242
TITLE II. CONCERNING THEFTS ............................................... 245
TITLE III. CONCERNING THE THEFT OF TIMBERS JOINED TO A BUILDING ........... 282
TITLE IV. PAGE
WHERE ANYONE WHO is ORDERED TO BE FREE BY THE TERMS OF A WILL, AFTER THE DEATH OF His MASTER AND BEFORE THE ESTATE is ENTERED UPON, is SAID TO HAVE STOLEN OR SPOILED SOMETHING ...... 283
TITLE V.
CONCERNING THEFT COMMITTED AGAINST CAPTAINS OF VESSELS, INNKEEPERS, AND LANDLORDS ..................................... 286
TITLE VI.
CONCERNING THEFTS ALLEGED TO HAVE BEEN MADE BY AN ENTIRE BODY OF SLAVES ................................................... 287
TITLE VII. CONCERNING TREES CUT DOWN BY STEALTH ......................... 289
TITLE Vill.
CONCERNING THE ROBBERY OF PROPERTY BY VIOLENCE, AND DISORDERLY ASSEMBLAGES ................................................ 292
TITLE IX.
CONCERNING FIRE, DESTRUCTION, AND SHIPWRECK, WHERE A BOAT OR A SHIP is TAKEN BY FORCE ..................................... 300
TITLE X. CONCERNING INJURIES AND INFAMOUS LIBELS ....................... 305
TITLE XL CONCERNING THE ARBITRARY PUNISHMENT OF CRIME ................. 327
TITLE XII. CONCERNING THE VIOLATION OF SEPULCHERS ........................ 332
TITLE XIII. CONCERNING EXTORTION .......................................... 335
THE DIGEST OR PANDECTS.
(Continued.)
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XLIII.
(Continued.)
TITLE XXI.
CONCERNING THE INTERDICT HAVING REFERENCE TO CONDUITS.
1. Ulpianus, On the Edict, Book LXX.
The Praetor says: "I forbid force to be employed against anyone to prevent him from repairing or cleaning any aqueduct, canal, or reservoir, which he has a right to use for the purpose of conducting water, provided he does not conduct it otherwise than he has done during the preceding summer, without the employment of violence, or clandestinely or under a precarious title."
(1) This interdict is extremely useful, for unless anyone is permitted to repair a conduit, he will be inconvenienced in his use of the same.
(2) Therefore, the Prsetor says, "An aqueduct and a canal." A canal is a place excavated throughout its length, and derives its name from a Greek word meaning to flow.
(3) A reservoir is a place from which one looks down, and from it public exhibitions are named.
(4) Conduits are opposed to ditches, and are for the purpose of conducting and forcing water from a stream, whether they are of wood, stone, or any other material whatsoever. They were invented for the purpose of containing and conveying water.
(5) A ditch is a place excavated at the side of a stream, and is derived from the word incision, because it is made by cutting; for the stone or the earth is first cut, in order to permit the water to be brought from the river. Pits and wells are also included in this interdict.
(6) The Praetor next says, "to repair and clean." To repair is to restore anything which is injured to its former condition. In the term "repair" are included to cover, or support from below, to strengthen, to build, and also to haul and transport everything necessary for that purpose.
.(7) Several authorities hold that the term "clean" only has reference to a canal which is in good condition, but it is evident that it also applies to one which needs repair, for frequently a canal needs both repairing and cleaning.
(8) The Praetor says, "for the purpose of conducting the water." This is added for a good reason, as he only is permitted to repair and' clean a water-course who made it in order to conduct water.
(9) This interdict will also lie in favor of one who has not the right to conduct water, provided he did conduct it either during the previous summer, or during that year; as it is sufficient that he did not do so by the employment of violence, or clandestinely, or under a precarious title.
(10) If anyone desires to make a conduit of stone, which was previously merely dug through the earth, it is held that he cannot legally avail himself of this interdict, for he who does this does not merely repair the water-course.
This opinion was adopted by Ofilius.
(11) Hence, even if a person wishes to dig a canal through a different place, he can be prevented from doing so with impunity. This rule also applies whether he lowers, raises, widens, extends, covers, or uncovers the conduit. I, however, think that he can be prevented from changing it in other respects, but so far as covering and uncovering it is concerned, I do not believe that he can be interfered with, unless his adversary proves that it is for his advantage that this should not be done.
2. Paulus, On the Edict, Book LXVL
Labeo asserts that a conduit which has been open cannot be changed to a subterranean one, because, by doing so, the owner of the land will be deprived of the privilege of watering his cattle, or of drawing water from the said conduit.
Pomponius says that he does not concur in this opinion, because the owner enjoys this privilege rather from accident than from any right which he possesses, unless this was the intention in the beginning when the servitude was imposed.
3. Ulpianus, On the Edict, Book LXX.
Servius, however, holds that water which formerly flowed through an open channel is conducted in a different way, if it is subsequently conveyed through one that is covered; for if anyone constructs a work by means of which the water is better preserved or contained, he cannot be prevented from doing so with impunity.
I think the contrary applies with reference to a pipe, unless greater benefit is derived by the adversary.
(1) Servius and Labeo say that if a person wishes to make the conduit of stone which, in the first place, was dug through the earth, and therefore did not retain the water, he should be heard. If, on the other hand, he should change the conduit which was formerly built of stone into merely a ditch through the earth, either wholly or in part, he cannot be prevented from doing so. It seems to me that any urgent and necessary repairs should be permitted.
(2) If anyone desires to connect a new channel or new pipes with the water-course, which were never there before, Labeo says that this interdict will be applicable. We, however, are of the opinion that, in a case of this kind, the benefit of him who conducts the water without causing any inconvenience to the owner of the land should be considered.
(3) If water is conducted into a lake, and from the latter by means of several aqueducts, this interdict will lie for the benefit of anyone desiring to repair the lake itself.
(4) This interdict has reference to all conduits, whether they are situated in public or in private places.
(5) Even if the pipe is for the purpose of conducting warm water, this interdict will also be available, where any repairs of the same should be made.
(6) Aristo thinks that a praetorian action will lie where a subterranean pipe through which vapor is conveyed into hot baths requires repairs; and it must be said that an interdict can also be employed in a case of this kind.
(7) This interdict is also granted to the same persons, in the cases above enumerated, in which interdicts with reference to water are granted.
' (8) Where notice to desist from the construction of a new work is served upon anyone who is repairing a conduit, it has been very properly held that he need not pay any attention to it, for as the Prator forbids violence to be employed against him under such circumstances, it is absurd that he should be interfered with by the service of notice to stop the construction of a new work.
It must be said that an action in rem can undoubtedly be brought against the party in question, on the ground that he had no right to make the repairs.
(9) There is no question whatever, that he who makes the repairs should give security against threatened injury.
(10) Ofilius thinks that this interdict will lie in favor of anyone who is prevented from bringing or transporting any materials required for repairs. This is true.
4. Venuleius, Interdicts, Book I.
The interdict is also granted where aqueducts ought to be repaired, and no inquiry is made whether a right to conduct the water exists or not. For the repair of roads is not as necessary as that of aqueducts, for if the latter are not repaired, the entire use of the water will be stopped, and persons will be exposed to death by thirst. It is evident that water cannot be obtained without repairing aqueducts; but if a road is not repaired, passage to and fro will only be rendered difficult, and this is less during the summer time.
TITLE XXII.
' CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
SPRINGS.
1. Ulpianus, On the Edict, Book LXX.
The Prater says: "I forbid force to be employed to prevent you from making use of the spring in question, the water of which you
have used during the past year, without employing force, or clandestinely, or under a precarious title. I will also grant an interdict of the same kind with reference to lakes, wells, and fish-ponds."
(1) This interdict was introduced for the benefit of him who is prevented from using the water of a spring. For servitudes are usually granted not only for the purpose of conducting water, but also for drawing it; and as those relating to the conducting of water and the drawing of the same are distinct, so, also, the interdicts relating to them are separately granted.
(2) Moreover, this interdict will apply if anyone is prevented from using water; that is to say, if he is either hindered from drawing it, or driving his cattle to it.
(3) The same rule which we have mentioned as governing previous interdicts must also be said to apply to those which have reference to persons.
(4) This interdict will not lie in the case of cisterns, for a cistern has not perpetual, or running water. From this it is evident that, in all these instances, it is required that the water be running. Cisterns, however, are filled by rains. In conclusion, it is established that the interdict will not apply if the lake, fish-pond, or well, does not contain running water.
(5) It is clear that the interdict will also be sufficient, where anyone is prevented from using a road giving access to the water to be drawn.
(6) The Praetor next says: "I forbid force to be employed to prevent you from repairing and cleaning the spring in question, in order that you may retain the water; provided you do not make use of it in a different way than you have done during the past year, without the employment of force, or clandestinely, or under a precarious title."
(7) This interdict is as advantageous as the one which has reference to the repair of conduits; for if it is not permitted to clean and repair a spring, it will be of no use.
(8) A spring should be cleaned and repaired for the purpose of retaining the water, so that anyone may use it in the same way in which this was done during the past year.
(9) To retain water is to confine it in such a way that it will not overflow, or be lost; provided anyone is not permitted to seek for and open new springs, for this is an innovation upon what has been done during the preceding year.
(10) An interdict can also be employed where a lake, a well, or a fish-pond is to be repaired or cleaned.
(11) This interdict is granted to all persons who are allowed to make use of the one having reference to summer water.
TITLE XXIII.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
SEWERS.
1. Ulpianus, On the Edict, Book LXXI.
The Prsetor says: "I forbid force to be employed by you against anyone who has the right to repair and clean the sewer in question, which is common to his house and yours. I will order security to be furnished for the reparation of any damage which may result from the work."
(1) The Praetor placed two interdicts under this title, one of which is prohibitory, and the other restitutory, and he first discusses the one which is prohibitory.
(2) By means of these interdicts, the Prater provides that sewers shall be cleaned and repaired, and both of them have reference to the health and protection of cities; for the filth of the sewers threatens to render the atmosphere pestilential and ruin buildings.
The same rule applies even when the sewers are not repaired.
(3) This interdict applies to private sewers, for those which are public demand the care of officials.
(4) A sewer is an excavation by means of which filth is carried away.
(5) The interdict first mentioned is prohibitory, and by it a neighbor is prevented from using violence to prevent a sewer from being cleaned and repaired.
(6) In the term "sewer" are included both the ditch and the pipe.
(7) For the reason that the repairing and cleaning of sewers is considered to have reference to the public welfare, it was decided that the clause, "if you have not made use of it by violence, or clandestinely, or under a precarious title," should not be added; so that, even if anyone had used it under such circumstances, he still would not be prevented from repairing or cleaning the sewer, if he desired to do so.
(8) The Prsetor next says, "which is common to his house and yours." In this instance, the term "house" must be understood to signify every kind of building, just as if it had been said "to his building and yours."
Labeo goes even farther, for he thinks that there will be ground for this interdict, if there is a vacant space between the two edifices, and if, as he suggests, the sewer leads from a house in the city to adjoining land.
(9) Labeo also holds that anyone who desires to connect his private sewer with a public one ought to be protected against being prevented by violence. Pomponius says that if anyone desires to construct a drain which will flow into a public sewer, he should not be hindered from doing so.
(10) Where the Praetor says, "is common to his house and yours," he means is directed towards, extends to, or comes as far as your house.
(11) This interdict also has reference to a next neighbor, as well as against others farther away, through whose houses the sewer in question runs.
(12) For which reason Favius Mela says that this interdict will lie to authorize anyone to enter the house of a neighbor, and take up his pavement for the purpose of cleaning the sewer.
Pomponius, however, says that, in this instance, the penalty of a stipulation for the reparation of damage may be incurred; but this will not be the case if the person above mentioned is ready to replace what he was obliged to take up for the purpose of repairing the sewer.
(13) If anyone serves notice of a new work upon me when I am cleaning or repairing my sewer, it is very properly held that I may pay no attention to the notice, and can continue to repair what I have begun.
(14) The Praetor, however, promises that security shall be given against any injury which may result from defective work; for, just as permission is given to repair and clean sewers, so it must be said that no damage should be caused to the houses of others.
(15) The Praetor next says: "You shall restore all to its former condition, where anything has been done to a public sewer or placed in it by which its use may be interfered with. Likewise, I forbid anything to be done to the sewer, or to be thrown into it."
(16) This interdict has reference to public sewers, and prohibits anything being thrown into them, or deposited in them by which their use may be injuriously affected.
2. Venuleius, Interdicts, Book I.
Although the repair of existing sewers, and not the construction of new ones, is included in this interdict, Labeo says that an interdict should, nevertheless, be granted to prevent anyone from employing violence against another who builds a sewer, because the same question of public welfare is involved; as the Praetor has, by an interdict, forbidden force to be used to hinder anyone from constructing a sewer in a public place. This opinion is also adopted by Ofilius and Trebatius. Labeo also says that anyone ought, without interference, to be permitted by the interdict to clean and repair a sewer already constructed; but that the officer in charge of the public highways should grant permission to build a new one.
TITLE XXIV.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
WORKS UNDERTAKEN BY VIOLENCE OR
.CLANDESTINELY.
1. Vivianus, On the Edict, Book LXXI.
The Praetor says: "I order you to restore to its former condition everything which you have done to the property in question by the employment of violence or clandestinely, as soon as proceedings are instituted against you for that purpose."
(1) This interdict is restitutory, and, by means of it, the deceit of those who have undertaken to do anything' with violence, or clandestinely, is obviated; and they are ordered to restore fhe property to its former condition.
(2) It makes very little difference whether the party in question has the right to do the work or not; for, even if Be has, he will, nevertheless, be liable under the interdict, because he employed violence or acted clandestinely; since he should protect his rights, and not contrive to injure hers.
(3) Then the question is asked whether anyone can oppose to this interdict the exception that the defendant did not do anything which he had not acquired a right to do. The better opinion is that he will not be allowed to avail himself of such an exception, for he cannot protect himself legally by an exception, where he has employed violence or acted clandestinely.
(4) This interdict only has reference to work which is done upon land, with the employment of violence or in a clandestine manner.
(5) Let us see what is meant by the employment of violence, or a clandestine act. Quintus Mucius says that anything is considered to have been done with the employment of violence where a person does it after he has been forbidden. The definition of Quintus Mucius appears to me to be complete.
(6) Pedius and Pomponius assert that if anyone is forbidden to proceed with a work by the casting of even a small stone upon it, he will be held to have used violence; and this is our practice.
(7) Cascellius and Trebatius think that the same rule will apply, if he proceeds with the work after notice has been served upon him in the presence of witnesses, which is true.
(8) Moreover, Aristo says that he also employs violence who, knowing that he will be opposed, uses force to avoid being prohibited.
(9) Likewise, Labeo says that if I forbid anyone to proceed, and he desists while in my presence, but afterwards resumes the work, he will be considered to have employed violence, unless he has obtained my consent, or has some other good reason for doing so.
(10) If anyone is prevented by weakness, or is restrained by the fear of offending you, or someone whose power is exerted in your favor, and, for either of these reasons, does not forbid you to proceed, you will not be considered to have employed violence. This was also stated by Labeo.
(11) He also says that if anyone should deter you when you desire to prevent me from doing the work, for instance, by arms, without any fraudulent act on my part, and, on this account, you do not come to prevent me, I will not be considered to have employed violence.
2. Venuleius, Interdicts, Book II.
So that it may not be within the power of another to render my condition worse, without my being guilty of any offence.
3. Ulpianus, On the Edict, Book LXXI.
In order to prevent anyone from proceeding, it is not necessary that the person himself should act, for anyone is legally considered to have hindered another, either by his slave or by his agent. The same rule will apply if a day laborer employed by me should attempt to prevent him. Nor can the objection be urged that action is not ordinarily acquired through the agency of one who is free; for the hindrance proves that you effected this by the employment of violence. And why should this be remarkable, when I will be entitled to bring suit, even if you have done the work clandestinely, and therefore, the right of action will be acquired by me, rather through the illegal act which you have committed, than through that of another?
(1) It should be noted that it is not necessary for the violence to be exerted continuously; for after it has once been committed in the beginning, it is considered to endure.
(2) If permission has been granted, an exception will be necessary to oppose him who makes use of the interdict.
(3) Moreover, if not only I should grant permission, but if my agent, or a guardian who is administering a guardianship, or the curator of a ward, an insane person, or a minor, should also grant it, it must be said that there will be ground for an exception.
(4) Nerva asserts that it is clear there will be no ground for an exception if the Governor, or some official having charge of the business of a city, permits work to be done in a public place; for he says that although the care of public places may have been entrusted to him, still the right to transfer them was not granted. This is only true where municipal law does not confer greater authority upon the public official having charge of the affairs of a city.
The same rule should be adopted if the right was granted by the Emperor himself, or by someone upon whom he has bestowed the power to do so.
(5) If anyone is ready to defend himself in court against certain persons who think that he should be forbidden to construct a work, let us see whether he will be held to have desisted through the employment of violence. The better opinion is that he should be considered to have done so, if he offers to give security, and is ready to defend his right. This was also stated by Sabinus.
(6) Again, if anyone is prepared to furnish security against any damage which may result, when he has only been forbidden to proceed on this account, or because he did not defend himself, or for the reason that he did not furnish security against threatened injury, it must be said, in consequence, that he has ceased to proceed with the work through the employment of violence.
(7) Cassius says that he is held to have acted clandestinely who conceals what he is doing from his adversary, and fails to notify him, provided he feared, or thought that he had good reason to fear, opposition.
(8) Aristo also thinks that he acts clandestinely when, with the intention of concealing what he is doing, he keeps with him the person
whom he thinks will oppose him, and believes, or has reason to believe, that he will oppose what he expects to d.o.
4. Venuleius, Interdicts, Book II.
Servius says that he is held to have acted clandestinely, even if he thinks that no controversy will arise with reference to what he does; for it is not necessary to pay attention to every one's inconsiderate opinion and judgment, otherwise, fools would be in a better condition than wise men.
5. Ulpianus, On the Edict, Book LXX.
He who does work in a different way than that in which he gave notice that it would be done, or deceives the person who had an interest in not having it performed, or intentionally serves notice upon his adversary, when he knows that he cannot hinder him, or notifies him so late that he cannot leave his house in order to interfere with the work, is held to have acted clandestinely. Aristo says that Labeo adopted this opinion.
(1) When anyone gives notice that a new structure is about to be erected, he is not always considered to have acted clandestinely, if he does the work after the notice has been given; for (according to Labeo), both the day and the hour should be included in the notice, as well as the place where the work is to be done, and the nature of it. A notice should not be either vague nor obscure, nor should it so restrict the adversary that he cannot appear within the time designated, in order to prevent the work from being performed.
(2) If there is no one upon whom the notice can be served, and no fraud has been committed by the person intending to do the work, notice should be served upon the friends or agent of the party interested, or at his house.
(3) Servius, however, very properly states that it will be sufficient to notify the husband of a woman, who is interested, that the work is about to be done, or to do it with his knowledge; although it will also be sufficient not to have the intention of concealing it from him.
(4) He also says, that if anyone desires to construct a new work in a public place belonging to a municipality, it will be sufficient if notice is served upon the official having charge of the affairs of the city.
(5) If anyone, thinking that certain land belongs to you, while in fact it is mine, undertakes a new work with the intention of concealing it from you, but not from me, the interdict will lie in my favor.
(6) He also says that, if someone undertakes a new work with the -intention of concealing it from my servant, or my agent, I will be entitled to an interdict.
(7) If anyone who did not serve notice that he was about to begin a new work, but was himself notified not to undertake it, and, nevertheless, does so, I think that the better opinion will be that he em-, ployed violence.
(8) These words, "what has been done by violence or clandestinely," Mucius says should be understood to mean what you yourself, or anyone of your people, have done, or what has been done by your command.
(9) Labeo, however, thinks that a larger number of persons are included in these words; for, in the first place, it includes the heirs of the persons enumerated by Mucius.
(10) He also says that this interdict is available against an agent, a guardian, a curator, and a municipality or syndic, as representing other parties.
(11) If my slave undertakes a new work, an action cannot be brought against me on this account, but it will be necessary for him to do it either in my name, or in his own; for if I have your slave employed by the day, and he begins any work in my name, proceedings can be instituted under this interdict on this ground, not against you, but against me, by whose order, or in whose name the work was performed by your slave.
(12) In like manner, where such work is performed by the order of anyone, this action will lie not against him, but against the person in whose name the order was given. For if an agent, a guardian, a curator, or the duumvir of a municipality, acting in the name of him or those whose business he transacts, should order the work to be performed, proceedings must be instituted against him in whose name this was done, and not against him who ordered it to be done. If I direct you to order work to be performed, and you obey me, the action should be brought against you, and not against me.
(13) As the interdict is expressed in the following terms, "what has been done by violence, or clandestinely," and not "what you have done by violence, or clandestinely," Labeo thinks that it extends to other persons than to those whom we have mentioned above.
(14) Our practice renders me liable under the interdict Quod m aut clam, whether I have done any new work or ordered it to be done.
6. Paulus, On the Edict, Book LXXVH.
If I direct you to construct a new work, and you order another to do it, it cannot be considered that it has been done by my command; therefore, you as well as the other party, will be liable. Let us see whether I, also, will be liable. The better opinion is that I will be, as I directed another to begin it. But if any one of these three should make reparation, the other two will be released.
7. Ulpianus, On the Edict, Book LXXI.
If another person should construct the new work without my permission, I will only be liable to the extent of allowing it to be demolished.
(1) Neratius also says that where the slave of any person constructs a new work, by the employment of violence, or clandestinely, he will be required, under the interdict to restore everything to its former condition, at his own expense, or permit this to be done, and
surrender the slave by way of reparation. He asserts that it is evident that if the interdict is employed after the slave has died, or been alienated, his master will only be compelled to permit the work to be demolished, so that the purchaser can be sued under the interdict for payment of the expenses, or the surrender of the slave by way of reparation; but he will be released from liability, if the owner of the new work restores everything at his own expense, or has judgment rendered against him because he did not do so.
If, on the other hand, the master of the slave either restores everything to its former condition, or has judgment rendered against him for the amount of damage sustained, the same rule will apply. But if he has only abandoned the slave by way of reparation, the interdict can be properly employed against the owner of the new work.
(2) Julianus says that anyone who constructs a new work before the withdrawal of the notice, and in violation of what he was forbidden to do, will be liable under two interdicts, one of them being based upon the notice which has been served with reference to a new work, and the other upon the employment of violence, or clandestine action. Where the withdrawal of the notice has been made, the defendant is not considered to have acted with violence or clandestinely, even though the prohibition remains; for a person who has given security ought to be permitted to build, because, by doing so, he becomes the possessor, and he should not be held to have acted clandestinely either before or after the withdrawal of the notice, since he who serves notice of a new work cannot be considered to have concealed himself, or to have been warned before he caused any controversy.
(3) It is very properly asked by Julianus whether this interdict may not be opposed by the exception: "Have you not done this work by the employment of violence, or clandestinely?" For instance, I use the interdict Quod vi aut clam against you; can you oppose me with the exception, "Have you not done the work by violence, or clandestinely?"
Julianus says that it is perfectly just for this exception to be granted; for he states that if you build anything by violence or clandestinely, and I demolish it by violence, or clandestinely, and you employ this interdict against me, I will be entitled to the benefit of this exception. This procedure, however, should not be resorted to unless good and sufficient cause exists; otherwise, everything ought to be referred to the wisdom of the judge.
(4) Gallus doubts whether still another exception may not be interposed; for example, where for the purpose of preventing a fire from spreading I demolish the house of my neighbor, and proceedings are instituted against me either under the interdict Quod vi aut clam, or for the reparation of wrongful damage. Gallus is uncertain whether the exception, "if you have not done this to prevent the spread of the fire," ought to be employed.
Servius says that if a magistrate directed this to be done, the exception ought to be granted, but a private individual should not be permitted to demolish the house. If, however, any act was committed
by violence, or clandestinely, and the fire did not extend to that point, the amount of simple damages should be estimated, but if it did reach that point, the party in question should be released from liability.
He states that the conclusion would be the same if the act had been committed for the prevention of future injury, as, both houses having been destroyed, it would appear that no injury or damage had been caused. But if you should do this when there was no fire, and fire should afterwards break out, the same rule will not apply; because, as Labeo says, the appraisement of damages should be made, not with reference to the former event, but according to the present condition of the property.
(5) We have noted above that, although the terms of the interdict have a broad application, still, the proceeding is held to apply only to work which is performed upon land. Hence, he who takes the crops is not liable under the interdict Quod vi aut clam, for he does not perform any new work upon the land. He, however, who fells trees, or cuts reeds or willows, will be liable; for, to a certain extent, he lays hands upon the earth, and injures the soil. The same rule applies to the cutting of vines. He, however, who removes the crops, should be sued by an action on theft. Therefore, where anyone constructs a new work upon the soil, there will be ground for the interdict. Anything which is done to trees we understand to apply to the soil, but not anything which is done with reference to the fruits of trees.
(6) If anyone spreads a heap of manure over a field whose soil is already rich, proceedings can be instituted against him under the interdict Quod vi aut clam. This is proper, because the soil is deteriorated.
(7) It is clear that if anything new is built for the purpose of cultivating land, the interdict Quod vi aut clam will not apply, if the condition of the land is improved, even though it may have been constructed by violence or clandestinely, after notice has been served prohibiting it.
(8) Again, if you dig a ditch in a public wood, and my ox falls into it, I can proceed against you under this interdict, because this has been done in a public place.
(9) If anyone should demolish a house, there is no doubt that he will be liable under the interdict, even though he did not level it with the ground.
(10) Hence., if he removes the tiles from a building, the better opinion is that he will be liable to the interdict.
8. Venuleius, Interdicts, Book II.
For the origin of things of this kind is derived from the soil. Moreover, tiles are not of themselves possessed, but only with the entire edifice, nor does it make any difference whether they are attached to it, or only placed upon it.
9. Ulpianus, On the Edict, Book LXXI.
If anyone removes branches from trees, we still allow this interdict to be employed. With reference to what we have stated as to the re-
moval of tiles from a building, if they are not placed upon the building, but are separate from it, this interdict will not apply.
(1) If, however, a lock, a key, a bench, or a wardrobe is carried away, proceedings cannot be instituted under the interdict Quod vi aut clam.
(2) But if anyone tears away something which is attached to a house, for instance, a statue, or anything else, he will be liable under the interdict Quod vi aut clam.
(3) If anyone cultivates land with violence, or clandestinely, or excavates a ditch therein, he will be liable under this interdict. If he burns a heap of straw, or scatters it in such a way that it cannot be used for the benefit of the land, there will not be ground for the interdict.
10. Venuleius, Interdicts, Book II.
. This is because the pile of straw is not attached to the soil, but is supported by it, but buildings are attached to the soil.
11. Ulpianus, On the Edict, Book LXXI.
Labeo says that anyone who pours something into the well of his neighbor, in order to spoil the water by doing so, will be liable under the interdict Quod vi aut clam, because living water is considered to constitute part of the land, and this is just as if he had constructed a new work in the water.
(1) If anyone should remove, either by violence or clandestinely, a statue erected in a city in a public place, the question arose whether he would be liable under this interdict. An opinion of Cassius is extant to the effect that he whose statue has been erected in a public place in a city can avail himself of this interdict, because it is to his interest that the statue should not be removed. Moreover, the municipal authorities can also bring an action of theft, on the ground that the property, having become public, is theirs. If, however, the statue should fall, they themselves can remove it. This opinion is correct.
(2) If anyone removes a statue from a monument, will the person to whom the right of sepulture therein belongs be permitted to institute proceedings under the interdict? It is established that, in cases of this kind, there will be ground for the interdict, and, indeed, it must be said that where anything has been placed on a tomb for the purpose of ornamenting it, it is considered to form part of the same.
This rule is also applicable if the party tears away or breaks down a door.
(3) If anyone should come into my vineyard, and remove the supports of my vines, he will be liable under this interdict.
(4) Where the Prsetor says, "what is done by violence, or clandestinely," let us see what time should be considered, and whether the past or the present is referred to. This point is explained by Julianus, for he says that, in this interdict, we must understand the present time to be meant. If, however, any damage has resulted, and the master, or he whose land was injured, removes the cause of the damage
at his own expense, it is better to adopt the opinion which Julianus holds, namely, that the damage should be repaired, and the expenses be reimbursed.
(5) This interdict includes everything whatsoever which has been done with violence or clandestinely. But it sometimes happens that the same work has been partly accomplished by violence, and partly clandestinely; as, for instance, although I forbade you to proceed, you laid the foundation of a building, and afterwards, we having agreed that you should not finish it, you, nevertheless, did so, during my absence and without my knowledge; or, on the other hand, you, having laid the foundation clandestinely, completed the building in spite of my opposition.
This is our practice; for the interdict is sufficient when the work has been done with violence and clandestinely.
(6) If the new work was constructed by the order of a guardian or a curator, as it is established (and as Cassius holds), that a ward or an insane person is not liable on account of the fraud of his guardian or curator, the result will be that an equitable action or an available interdict will lie against the guardian or curator himself. It is clear, however, that the ward and the insane person will be liable to the extent of permitting the demolition of the work, as well as to a noxal action.
(7) Should a slave be excused who has constructed a new work in obedience to the orders of a guardian or a curator? For slaves are usually pardoned when they obey their masters or those who occupy their places, in the performance of acts which have not the atrocious character of crimes, or serious offences. In this case this should be admitted.
(8) If the land should be sold after a new work has been constructed with violence or clandestinely, let us see whether the vendor can, nevertheless, avail himself of this interdict. The opinion of certain authorities is extant to the effect that the interdict will lie in favor of the vendor, even if the sale has not been concluded, and nothing had been paid to the purchaser in an action on sale for the work which was constructed before the transaction took place; for it is sufficient if, on this account, the vendor sold the land at a lower price. The same rule should be adopted where he did not sell it at a lower price.
(9) It is, however, clear that if the new work was constructed after the sale of the land, even if the vendor himself has proceedings under the interdict instituted against him, for the reason that delivery has not yet been made, he will still be liable to the purchaser in an action on purchase; for all benefits and inconveniences should be for the advantage or disadvantage of the latter.
(10) If land has been sold under the condition of being returned if a higher price can be obtained, who will be entitled to the interdict? Julianus says that the interdict Quod vi aut clam will lie in favor of the person to whose interest it was that the work should not be constructed. For when land is sold under this condition, all the advan-
tage and disadvantage will be enjoyed or endured by the purchaser; and this applies to whatever was done before the property was transferred under the terms of the sale. Therefore, if any new work has been constructed with violence, or clandestinely, although the condition of the vendor may be improved, the purchaser will be entitled to an available interdict, but he will be compelled to assign the right of action acquired under the action of sale, as well as any other profits which may have been obtained in the meantime.
(11) Aristo, however, says that notice must even be served upon him who is not in possession, for he states that if anyone should sell me a tract of land which he has not yet delivered, and a neighbor, desiring to construct a new work, knowing that I have bought the land, and am living upon it, should notify me, he will hereafter be secure so far as any suspicion relating to the clandestine construction of a new work is concerned; which in fact is true.
• (12) In case a sale is made of land under the condition that it will be of no effect, if a better price can be obtained within a certain time, and the land is delivered to the purchaser under a precarious title, I think that he can make use of the interdict Quod vi aut clam. If, however, delivery has not yet been made, or if it has been made under a precarious title, I do not believe there can be any doubt that the vendor will have a right to the interdict, for it will lie in his favor even though the property may not be at his risk.
Nor does it make much difference if it is at the risk of the purchaser, for immediately after the sale has been contracted, the property is at the risk of the purchaser an'd, nevertheless, before delivery has been made, no one will maintain that he is entitled to the interdict. Still, if he is in possession precariously, let us see whether he can avail himself of the interdict, because he has the interest, no matter by what title he holds possession. Therefore, even if he has leased the property, there is much more reason that he should be entitled to it; for, beyond all doubt, a tenant can institute proceedings by means of the interdict.
If the condition of the vendor should become better before the work has been constructed with violence, or clandestinely, Julianus entertains no doubt that the interdict will lie in favor of the vendor, for the disagreement between Cassius and Julianus relates to a new work which has been begun in the meantime, and has no reference to one which has subsequently been undertaken.
(13) If a tract of land has been sold under the condition that if the purchaser is not pleased with it, the sale will be void, it is more easy for us to determine that the purchaser will be entitled to the interdict, provided he is in possession. If the question of the annulment of the sale is referred to a third party for arbitration, the same rule should be adopted. This is also the case if it is sold under the condition that if some event transpires, the land shall be considered as not sold.
The same rule must be said to apply, if the sale was contracted with the understanding that it would be void if the terms were not complied with within a specified time.
(14) Julianus also says that this interdict not only lies in favor of the owner of the land, but also in favor of those whose interest it is not to have the new work constructed.
12. Venuleius, Interdicts, Book II.
Although a tenant and an usufructuary are entitled to the benefit of this interdict with reference to the crops, still, the owner will also be entitled to it if he has any additional interest.
13. Ulpianus, On the Edict, Book LXXI.
Finally, if there are trees on the land, the usufruct of which belongs to Titius, and they are cut down by a stranger, or by the owner, Titius can institute proceedings against both of them, under the Aquilian Law, and the interdict Quod vi aut clam.
(1) Labeo says that if the new work is constructed against the opposition of your son, you will be entitled to the interdict, just as if the opposition had been made by yourself; and your son will also be entitled to it, nevertheless.
(2) He also says that no one is considered to have constructed a work clandestinely against a son under paternal control, where the land forms a part of his peculium; for if he was aware that he was under paternal control, he will not be considered to have done the work with the intention of concealing it from him, as he knows that he cannot bring suit against him.
(3) If one of two joint-owners of a tract of land cuts down any trees, the other can institute proceedings against him under this interdict, as it lies in favor of any person having an interest in the property.
(4) It is stated still more broadly by Servius, that if you grant me permission to cut down trees on your land, and then someone else cuts them down with violence, or clandestinely, I will be entitled to this interdict, because I am the party interested. It is still more easy to admit this, if I have purchased from you, or have obtained from you by some other contract, permission to cut the trees.
(5) If a new work was constructed with violence, or clandestinely, upon land which at the time did not belong to anyone, and the ownership of it afterwards vested in some person, the question arises whether there would be ground for the interdict; as, for instance, where a succession was vacant, and Titius afterwards entered upon the estate, would he be entitled to the interdict? It was frequently stated by Vivianus that this interdict will lie in favor of the heir, because the work had been performed before his acceptance of the estate.
Labeo says that it makes no difference if the party in question did not know who would be the heir, for he can readily make use of this pretext, even after the estate has been accepted. He also says that no objection can be raised because, at that time, there was no owner of the land, for a burial-place has no owner, and if any new work is" constructed upon it, I can institute proceedings by means of the interdict Quod m aut clam.
It should also be added to what has previously been stated that inheritance takes the place of ownership. It can very properly be held that the interdict will lie in favor of the heir and other successors, if the work was constructed with violence, or clandestinely, before or after they succeeded to the estate.
(6) If my tenant constructs a new work with my consent, or I afterwards ratify his act, it is just the same as if my agent had constructed it. In this instance it is established that I will be liable, whether he acted with my consent, or whether I ratified what he had
done.
(7) Julianus says that if a tenant cuts down a tree, the ownership of which was in dispute, or does anything else, and it was done by .order of the owner, both parties will be liable, not only for permitting the tree to be cut down, but also for the payment of all expenses of restoring the property to its former condition. If, however, the owner did not order the work to be done, the tenant will be liable for permitting the tree to be felled, and for the payment of the expenses; and the owner will be compelled to do nothing more than to allow the removal of the tree.
14. Julianus, Digest, Book LXVIII.
For if my slave constructs a new work without my knowledge, and I afterwards sell or manumit him, proceedings can only be instituted against me to compel me to allow the work to be demolished. The plaintiff, however, can proceed against the purchaser of the slave, and force him to surrender him by way of reparation, or pay the expense incurred in restoring the property to its original condition.
This action can also be brought against the slave himself, after he has been manumitted.
15. Ulpianus, On the Edict, Book LXXI.
This interdict can always be employed against him who is in possession of a new work. Therefore, if anyone has constructed a new work upon my land without my knowledge or consent, there will be ground for the interdict.
(1) If you have leased your land for excavation, and the lessee throws the stones which he takes out upon the field of a neighbor, Labeo says that you will not be liable under the interdict Quod vi aut clam, unless this was done by your direction. I, however, think that the lessee will be liable, but not the lessor, unless to the extent of being compelled to permit the removal of the stones, and to assign any right of action which he may have; otherwise, he cannot be held responsible.
(2) Labeo says that if earth is piled up by my order upon a burial-place belonging to another, proceedings can be instituted against me under the interdict Quod vi aut clam; and if this was done with the common consent of several persons, proceedings can be instituted against any one of them, or against each one individually; for an undertaking in which several persons are concerned renders each of them individually liable in full.
If, however, some of them acted on their own responsibility, suit should be brought against all, that is to say, for the entire amount. Hence, if one of them is sued, this will not release the others, and even if a judgment is rendered against only one, the result will be the same; while, in the former instance, if one is sued, the others will be released. In addition to this, the action based oh the violation of a sepulchre can be brought.
(3) This interdict is granted against the heir and other successors, for the amount which has come into their hands, but it will not be after a year has elapsed.
(4) The year begins to run from the time when the work has been completed, or labor upon it has ceased, even though it may not be finished. Otherwise, if the year was computed from the day when the work was begun, it would be necessary to bring several suits against those who delayed its completion.
(5) If, however, the place in which the work was performed was not easy of access (as, for example, if it was done with violence, or clandestinely in a burial-place, or in some other retired locality, or under ground, or under water, or in a sewer), the interdict will lie with reference to the new work, even after the lapse of a year, if proper cause be shown. For if proper cause is shown, the exception based on the fact that a year has elapsed cannot be pleaded, that is to say, where good and sufficient cause for ignorance is established.
(6) If anyone who "is absent on business for the State, when he returns, desires to make use of the interdict Quod vi aut clam, the better opinion is that he should not be excluded from doing so on the ground of a year having elapsed, but that he will be entitled to a year after his return. For if a minor under twenty-five years of age should be away on public business, and, during his absence, attains his majority, the year will be reckoned from the date of his return, and not from the day when he completed his twenty-fifth year.
This was stated in a Rescript by the Divine Pius, and confirmed by all the other Emperors who succeeded him.
(7) In the proceedings under this interdict, the amount of the judgment is based upon the interest of the plaintiff in not having the new work constructed. It is the duty of the judge to decide that the property shall be restored in such a way that the condition of the plaintiff will be the same as it would have been if the new work, on account of which the action was brought, had not been undertaken either by violence, or clandestinely.
(8) Therefore, sometimes the right of ownership must be taken into consideration, as, for example, where servitudes are lost, or usufructs extinguished because of the new work which was undertaken, which may not only happen while it was in progress of construction, but also at the time of its demolition, when the condition of the servitudes, of the usufruct, or of the property itself becomes impaired.
(9)r The interest of the plaintiff, however, must be established by his oath in court, or, if this cannot be done, it must be determined by the judge.
(10) Where anyone has been guilty of fraud to avoid restoring the property to its former condition, he must be considered as having the power to do so.
(11) In this interdict, the negligence of the defendant must also be taken into consideration, and this must be estimated in accordance with the wisdom of the judge.
(12) For the reason that this interdict has reference to the interest of the plaintiff in not having a new work constructed, if he has obtained the value of his interest by means of some other action, the result will be that he can obtain nothing else by the employment of this interdict.
16. Paulus, On the Edict, Book LXVII.
This interdict will lie in favor of those who are not in possession of the property, provided they have an interest therein.
(1) Where anyone, with violence, or clandestinely, cuts down trees which do not bear fruit, as, for instance, cypresses, the interdict will only lie in favor of the owner. If, however, any pleasure is afforded by trees of this kind, it may be said that the usufructuary also has an interest on this account, and that he will be entitled to the interdict.
(2) In short, if anyone has constructed a work with violence, or clandestinely, and is in possession, he must permit the removal of what has been built, and pay the expenses of doing so; but if he who did the work is not in possession, he must pay the expense of removal; if he is in possession, but did not construct the work, he must only permit it to be removed.
17. The Same, On the Edict, Book LXIX.
The interdict Quod vi aut clam is acquired for the owner by almost any person, and even by a tenant.
18. Celsus, Digest, Book XXV.
If anyone cuts down any timber before it is mature, he will be liable under the interdict Quod vi aut clam. In like manner, if he cuts it down after it has matured, and the owner sustains no damage, he will not be liable for anything.
(1) It has been very properly stated that if you should petition a magistrate to order your adversary to appear in court, in order to prevent him from serving notice upon you not to construct a new work, you will be held to have acted clandestinely, if, in the meantime, you proceed with the work.
19. Ulpianus, On the Edict, Book LVH.
Sabinus says that a son under paternal control, who is a tenant, is entitled to the interdict Quod vi aut clam against anyone who sets fire to trees.
20. Paulus, On Sabinus, Book XIII.
He is considered to have acted with violence who continues the construction of a new work after having been forbidden to do so; for
instance, by deterring his adversary from notifying him, or by closing a door against him.
(1) A man is also understood to be prevented by any kind of an act whatsoever; that is to say, by the opposition of someone speaking to him, or raising his hand against him, or throwing a stone upon the structure with the intention of forbidding him to proceed.
(2) Moreover, he who has been forbidden to proceed acts with violence as long as matters remain in the same condition; for if he afterwards makes an agreement with his adversary, he ceases to use violence.
(3) Likewise, if the work which has been prohibited is carried on by the heir, or by someone who purchased the property from him, without having knowledge of the facts, Pomponius says that it should be held that he will not be liable to the interdict.
(4) Any new work which is done in a ship, or with reference to any other movable property, even if it will increase its dimensions, is not included in this interdict.
(5) Whether the work is constructed in a private or a public place, or in one which is- sacred or religious, the interdict will lie.
21. Pomponius, On Sabinus, Book XXIX.
Where a new work is ordered to be removed by'a judge who has been applied to under this interdict, and anyone else removes it with violence, or clandestinely, the party against whom judgment has been rendered will, nevertheless, be ordered, under all circumstances, to restore the property to its former condition.
(1) If I order my slave to construct a new work, and no suspicion of clandestine action attaches to me, but my slave thinks that my adversary will oppose him if he should hear of it; will I be liable ? I do not think that you will be, because I, personally, should only be considered.
(2) In the construction of a new work, the land as well as the air which may be affected must be taken into account.
(3) If anyone, on account of the construction of a new work, loses any right attaching to his land, this should be remedied by the interdict.
22. Venuleius, Interdicts, Book II.
If you have drawn over, and planted a sprout of one of my vines on your land, and it takes root, I will be entitled to the interdict Quod vi aut clam for the term of a year. If, however, the year should elapse, I shall no longer have a right of action; for even the roots which remain on my land become yours, because they are accessory.
(1) If anyone cultivates land with violence, or clandestinely, I think that he will be liable under this interdict, just as if he had dug a ditch; for the application of this interdict is not based upon the kind of work, but upon every description of labor which is performed upon the soil.
(2) If you attach a tablet to my door,1 and before serving notice upon you I remove it, and we then institute proceedings against one another under the interdict Quod vi aut clam, and you do not desist to enable me to be released, you should have judgment rendered against you for not restoring the property to its former condition, to the extent of my interest; or I can plead an exception based upon the fact that you have acted with violence, or clandestinely, or under a precarious title.
(3) If you throw manure upon my premises, after I have forbidden you to do so, Trebatius says that you will be liable under the interdict Quod vi aut clam, even though you cause me no damage, and do not change the appearance of my land.
Labeo is of the opposite opinion, for he holds that anyone will not be liable under this interdict who merely makes a road through my land, or releases a bird of prey there, or hunts upon it, without constructing any new work.
(4) If anyone extends his roof or gutter above a tomb, even if it does not touch the monument itself, proceedings can, nevertheless, lawfully be instituted against him by means of the interdict Quod vi aut clam, because a sepulchre is not only a place intended for interment, but is entitled to all the air above it, and, on this account, the action for violation of a tomb can be brought.
(5) If he who served notice that he was about to undertake a new work should begin it immediately, he will not be understood to have done so clandestinely; but he will be considered to have acted clandestinely if he undertakes it after the designated time has expired.
TITLE XXV. CONCERNING THE WITHDRAWAL OF OPPOSITION.
1. Ulpianus, On the Edict, Book LXI.
The Prsetor says: "The notice will hold, if the complainant has a right to prevent the construction of a new work against his consent; otherwise, I will grant a withdrawal of the prohibition."
(1) Withdrawals of opposition are discussed under this Title.
(2) The words of the Prator indicate that a withdrawal of this kind only should be made where the notice does not hold, and that he intends that it only should hold where the person serving it has a right to forbid a new work being constructed without his consent. Moreover, whether security is given or not, the .withdrawal granted is only applicable to property with reference to which the notice is not valid. It is clear that if security has been furnished, and withdrawal is granted afterwards, the withdrawal is not necessary.
(3) He only is entitled to serve notice not to construct a new work in whom the right of ownership or the servitude is vested.
(4) It was also held by Julianus that the usufructuary had the right to recover the servitude; and, according to this, he can serve
1 That is, as a public notification that the building was hypothecated.—ED.
notice upon a neighbor not to construct a new work, and the withdrawal of opposition will also be valid.
If, however, he should serve notice upon the owner of the land himself, the withdrawal of opposition would be of no effect, nor would the usufructuary have any right of action against the owner, since he has one against the neighbor; as, for instance, to prevent him from raising his house to a greater height. But if his usufruct should be impaired by this act, he ought to bring an action to recover it.
Julianus says the same thing with reference to others to whom servitudes are due from their neighbors.
(5) Julianus also says that it is not inequitable to allow a person, who has received land in pledge, the retention of a servitude imposed upon said land.
TITLE XXVI.
CONCERNING PRECARIOUS TENURES. 1. Ulpianus, Institutes, Book I.
A precarious tenure is one by which a party petitioning for it is permitted to enjoy the use of property as long as he who grants him permission suffers him to do so.1
(1) This species of generosity is derived from the Law of Nations.
(2) It differs from a donation, in that he who makes a donation has no intention of receiving the property again; but he who grants anything by a precarious tenure does so with the expectation of resuming control of the property when he chooses to release it from the tenure.
(3) It also resembles a loan for use, for he who lends property in this manner does so in such a way as not to render the article loaned the property of the person who receives it, but he only permits him to make use of it.
2. The Same, On the Edict, Book LXIII.
The Praetor says: "You must return the property in question to him from whom you hold it by a precarious tenure, or which you have ceased to possess through some fraudulent act."
1 The title De precario corresponds to tenancy at will, under the Common Law. Littleton describes the latter as follows: "Tenant at will is, where lands or tenements are left by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sowne and before the corne is ripe, put him out, yet the lessee shall have the corne, and shall have free entry, egresse and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for yeares, which knoweth the end of his terme, doth sow the land, and his terme endeth before the corne is ripe. In this case the lessor, or he in the reversion shall have the corne, because the lesses knew the certainty of his terme and when it would end." (Littleton, Tenures, Vill, 68.) "It is regularly true, that every lease at will must in law be at the will of both parties,
(1) This interdict is restitutory. It is based upon natural equity, and lies in favor of anyone who desires to revoke the precarious tenure.
(2) For it is naturally just that you should only enjoy my liberality as long as I desire you to do so, and that I can revoke it whenever I change my mind. Therefore, where anything is granted under a precarious tenure, we can not only make use of the interdict, but also of the Actio prasscriptis verbis, which is based upon good faith.
(3) He is considered to hold property by a precarious title who has possession of the same either in fact or in law, for the sole reason that he has asked for, and obtained the right to possess, or to use it.
3. Gaius, On the Provincial Edict, Book XXV.
For example, where you have requested me to give you a right of way over your land, or to permit you to allow your gutter to project over my roof, or your beams to rest upon my wall.
4. Ulpianus, On the Edict, Book XVII.
A precarious title also exists with reference to movable property.
(1) Moreover, we must also remember that he who holds property by a precarious tenure is also in possession of the same.
(2) It is not he who has asked for the property under a precarious tenure, but he who holds it under such a tenure, that is liable under this interdict. For it may happen that he who did not ask for it may, nevertheless, hold it by a precarious tenure; as, for instance, if my servant should apply for it, or anyone else who is under my control should do so, he will acquire it for me under this tenure.
(3) Likewise, if I should ask for property under a precarious tenure, which already belongs to me, although I have made this request, I will not hold the property under this tenure, for the reason that it is established that no one can hold his own property by a precarious title.
(4) Likewise, he who requests property to be given him under a precarious tenure, for a certain period of time, will still be considered to .possess it under this tenure after the time has elapsed, even though he may not have asked to hold it longer; as the owner of property is understood to renew the precarious tenure when he permits the person who asked for it under such a title to continue to hold possession of the same.
5. Pomponius, On Sabinus, Book XXIX.
If while the precarious tenure is still existing, you request that it be continued for a long time, it will be extended; for the title to possession is not changed and a precarious title is not created in this way, but is merely prolonged. If, however, you request it after the time has elapsed, the better opinion is that a precarious title having once been extinguished is not renewed, but a new one is established.
and therefore when the lease is made to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also." (Coke, Institutes, I, 55, a.) —ED.
6. Ulpianus, On the Edict, Book LXXI.
If, in the meantime, the owner of the property should become insane, or die, Marcellus says that it is not possible for the precarious tenure to be renewed. This is true.
(1) If my agent, under my direction, asks for property under a precarious tenure, or if I ratify his act, I will properly be said to hold it under such a tenure.
(2) He who has asked permission to reside upon land under a precarious tenure is not in possession of the land, but its possession remains with the person who granted him permission. For jurists hold that an usufructuary, a tenant, and a lessee, all live on the land, and still they are not in possession of it.
(3) Julianus says that where anyone who has forcibly ejected another afterwards obtains from him the same land by a precarious tenure, he ceases to possess it by force, and begins to hold it by a precarious title; and he does not think that he has changed his title to the property, as he commences to possess it under a precarious tenure with the consent of him who ejected him. For if he had bought the same property for him, he would begin to acquire the ownership of the same as the purchaser.
(4) The question arose, if anyone should give his property to me in pledge, and then ask to hold it by a precarious tenure, whether there would be ground for this interdict. The point in this case is whether a precarious title to one's own property can exist. The better opinion seems to me to be that the precarious tenure relates to the pledge, as it is the possession, and not the ownership, which is granted. This opinion is extremely useful, for, every day, creditors are requested by those who have given their property in pledge, to permit them to hold it by a precarious tenure. A precarious tenure of this kind should be valid.
7. Venuleius, Interdicts, Book HI.
But if I am entitled to retain possession of property by means of the interdict Uti possidetis, although the question relating to the ownership of the same may not have been decided, and I grant you possession of it under a precarious tenure, you will be liable under this interdict.
8. Ulpianus, On the Edict, Book LXXI.
The question arose, if Titius should request me to allow him to use something belonging to Sempronius, and I afterwards ask Sempronius to grant permission for this to be done and he, desiring to favor me, gives permission, Titius will hold the property from me by a precarious title, and I can sue him under the interdict. Sempronius, however, cannot proceed against him, because the following words, "which.you hold of him by a precarious title," show that the interdict can be employed by the person who asked for the precarious tenure, and not by him to whom the property belongs.
But will Sempronius be entitled to sue me under the interdict, on account of my having requested him to permit the property to be held under a precarious tenure? The better opinion is, that he will not be entitled to the interdict, because I do not hold the property by a precarious title, as I did not obtain it for myself, but for another. He will, nevertheless, be entitled to an action on mandate against me, because he granted it to you under my direction. Or, if anyone should say that this was done, not by my direction, but rather in order to render me his debtor, it must be held that an action in factum should also be granted against me.
(1) When anyone has obtained property from Titius under a precarious tenure, it is also considered to be held from his heir in the same manner, as is stated by Sabinus and Celsus; and this is our practice. Therefore, a man is considered to hold property under this tenure from all other successors; which opinion is approved by Labeo. He adds that, even if he did not know that there was an heir, fie would still hold the property from him under a precarious tenure.
(2) Let us see what the rule will be, if you request me to grant you property under a precarious tenure, and I alienate it; will the tenure continue to exist, after the transfer of the property to another ? The better opinion is that he can make use of the interdict, if he has not revoked the precarious tenure; just as if you held the property in this way from him, and not from me, and if you permit him to hold it by this tenure for some time, he can properly employ the interdict just as if you held it from him.
(3) The Prsetor wished that he also should be liable under this proceeding, who committed a fraudulent act in order to avoid retaining possession. It must be noted that anyone who retains possession by a precarious tenure is not liable for negligence, but only for fraud; although he who has borrowed an article is responsible for negligence, as well as for fraud. And it is not without reason that he who obtains property by a precarious title is only liable for fraud, for all this only arises from the generosity of him who granted the property under such a tenure; and it is sufficient if he is only liable for fraud. It may, however, be said that he will also be liable for gross negligence which resembles fraud.
(4) Under this interdict the property should be restored to its original condition, and if this is not done, judgment must be rendered for the amount of the interest of the plaintiff in having the property restored to its former condition, from the time when the interdict was issued. Therefore, an estimate of the crops should also be made, and paid for from the same date.
(5) If he who obtained the property under a precarious tenure does not make use of a servitude, and, on this account, it is extinguished, let us see whether he will be liable to the interdict. I think that he will not be liable, unless he was guilty of fraud.
(6) Generally speaking, it must be held that in making restitution, both fraud and gross negligence should be taken into account, but nothing else. It is evident that after the issue of the interdict,
fraud, and both gross and ordinary negligence should be considered, for where anyone who holds property under a precarious tenure is in default, he should be responsible for everything.
(7) Labeo says that this interdict can be employed after the lapse of a year, and this is our practice; for, as property is sometimes granted under a precarious tenure for a considerable time, it would be absurd to hold that there will be no ground for the interdict after a year.
(8) The heir of him who asks that he be granted the property under a precarious tenure will be liable under this interdict, just as he himself would be, if he had possession of the property, or was guilty of fraud to avoid having it, or to prevent it from coming into his hands; but he will only be liable for the amount of the profit which he obtained, where any fraud was committed by the deceased.
9. Gaius, On the Provincial Edict, Book XXVI.
Precarious possession can be established between parties who are either present, or absent; for instance, by means of a letter, or a messenger.
10. Pomponius, On Plautius, Book V.
Although anyone may have only asked for a female slave under a precarious tenure, it is held that it was intended that he should be entitled to any offspring of the said female slave.
11. Celsus, Digest, Book VII.
If a debtor who has asked that property pledged be given him under a precarious tenure should discharge the debt, the said tenure comes to an end; as it was the intention of the parties that it should only continue to exist until the time when the debt was paid.
12. The Same, Digest, Book XXV.
When anything is granted under a precarious tenure, and it is agreed that the grantee shall hold possession under it until the Kalends of July, will he who received it be entitled to an exception to prevent him from being deprived of possession of the property before that time? An agreement of this kind is of no force or effect, for it is not lawful for property belonging to another to be held in possession against the consent of the owner.
(1) Property held by a precarious tenure passes to the heir of him who granted it, but it does not pass to the heir of him who received it, because possession was given only to himself, and not to his heir.
13. Paulus, On Quintus Mucius, Book XXXIII.
If your slave should request that property be granted him under a precarious tenure, and this is done by your order, or you ratify his request- in your own name, you will be liable as holding the property in this manner. If, however, your slave or your son should make a
request in his own responsibility, without your knowledge, you will not be considered to hold the property under a precarious tenure, but the person who granted it will be entitled to proceed against you by the action De peculia, or by that for property employed for the benefit of another.
14. Paulus, On Sabinus, Book XIII.
The interdict having reference to property held by a precarious tenure was introduced with good reason, because there was no action available for this purpose under the Civil Law. For occupancy by a precarious tenure relates to donations and benefactions, rather than to contracts made in the ordinary course of business.
15. Pomponius, On Sabinus, Book XX.
It is based upon absolute justice, as it prescribes that a person shall only make use of our property to the extent that we are willing to grant him permission to do so.
(1) Guests, and others who are entitled to free lodgings, are not understood to hold under a precarious tenure.
(2) We can hold under a precarious tenure property which consists of a right, as thai which permits the insertion of beams into a building, or allows structures to project over land.
(3) Anyone who has obtained security for the restitution of his property is not entitled to the benefit of the interdict relating to a precarious tenure.
(4) There is no question that anyone who has obtained possession under a precarious tenure does not actually acquire it. But is there any doubt that he who has requested to grant it, will continue to retain possession? Where possession under a precarious tenure has been granted to a slave, it is established that it is held by both parties; by him who made the request, because he holds possession in fact, arid by the owner of the property, because he did not have the intention of relinquishing it.
(5) It makes no difference, so far as this interdict is concerned, in what place anyone holds possession, or began to hold it under a precarious tenure.
16. The Same, On Sabinus, Book XXII.
If I adopt a person to whom property has been granted under a precarious tenure, I will also hold possession of it under the same tenure.
17. The Same, On Sabinus, Book XXIII.
When anyone possesses land under a precarious tenure, he can make use 'of the interdict Uti possidetis against all other persons, except him from whom he obtained the land.
18. Julianus, Digest, Book XIII.
Anyone can give his own property under a precarious tenure to the. party in possession, even though he himself does not possess it.
19. The Same, Digest, Book XLIX.
Two persons cannot hold the same property by a precarious title, any more than two can hold possession of the same thing through violence, or clandestinely; for two just or unjust possessions of it cannot exist at one and the same time.
(1) Anyone who requests that my slave be transferred to him under a precarious title is considered to hold him from me under such a title, if I grant his request; and hence he will be liable to me under the interdict in question.
(2) Where anything is requested to be granted under a precarious tenure, we cannot only make use of this interdict, but also of the proceeding for the recovery of property whose amount is undetermined; that is to say, the Actio Prasscriptis Verbis.
20. Ulpianus, Opinions, Book II.
The vendor can follow up any property which has been sold, and which is to remain in the hands of the purchaser under a precarious title, until the entire price has been paid, if it was the purchaser's fault that payment has not been made.
21. Venuleius, Actions, Book IV.
When anyone obtains permission to reside upon land under a precarious tenure, it is superfluous for the words, "For him and his household" to be added; for it is understood that permission is granted through him for his family to make use of the property.
22. The Same, Interdicts, Book HI.
If anyone who is in possession merely as possessor should request the owner of the property to grant him permission to retain it under a precarious tenure, or if he who purchased property belonging to another should make this request to the owner of the same, it is evident that they will hold possession under a precarious tenure; and they should not be considered to have themselves changed their title to possession, as possession under a precarious tenure has been granted them by the owner of the land. For if you should ask another for property in your possession to be granted you under a precarious tenure, you will be considered to have ceased to possess it under the first title, and to begin to hold it under a precarious one.
On the other hand, if a person who has the right to take the property away from the possessor should ask him to grant it to him by a precarious tenure, he will be liable under the interdict in.question; as an advantage has been obtained by this request, that is to say, the possession which belongs to another.
(1) If a ward, without the authority of his guardian, should ask that property be granted him under a precarious tenure, Labeo says that he will hold precarious possession of it, and will be liable under this interdict; for where anyone has possession naturally, there is no ground for the exertion of the authority of a guardian. The words,
"which you hold under a precarious tenure," are perfectly applicable, because what he possesses he holds by the title under which he asked for the grant of the property. There is nothing new to be determined by the Praetor in this case; for if the ward holds the property, he will be required by the judge to surrender it, and if he does not hold it, he will not be liable.
TITLE XXVII.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE CUTTING OF TREES.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "If a tree projects from your premises over those of your neighbor, and you are to blame for not removing it, I forbid force to be employed to prevent him from doing so and keeping it as his own."
(1) This interdict is prohibitory.
(2) Where a tree projects over the house of a neighbor, the question arises whether the Praetor can order the entire tree to be removed, or only that portion of it which projects above the building? Rutilius says that it should be taken out by the roots, and this is held to be correct by many authorities. Labeo asserts that if the owner does not remove the tree, he who is injured by it can, if he wishes to do so, cut it down and carry away the wood.
(3) Vines are also included under the term trees.
(4) This interdict lies not only in favor of the owner of the house, but also in favor of the usufructuary of the same, for the reason that it is to his interest, also, that the tree should not project above the building.
(5) Moreover, the opinion should be adopted, that if a tree projects over a house owned in common by several persons, each of the joint-owners will be entitled to the benefit of the interdict, and indeed, for the entire amount, because each one of them has a right to bring an action to recover servitudes.
(6) The Praator says: "If you are to blame for not removing it, I forbid force to be employed to prevent him from doing so." Therefore, authority to remove the tree is first granted to you, and if you fail to do so, then the Prator forbids you to employ violence in order to prevent your neighbor from removing it.
(7) The Prsetor also says: "Where a tree on your premises projects over those of your neighbor, and you are to blame for not trimming it up to a height of fifteen feet from the ground, I forbid force to be employed to prevent your neighbor from trimming it up to the height aforesaid, and removing the wood for his own use."
(8) What the Prsetor says, the Law of the Twelve Tables intended to establish; namely, that the branches of trees should be cut off within fifteen feet of the ground, in order that the shade of the tree may not injure the land of a neighbor.
(9) There is a difference between the two Sections of the interdict, for if the tree projects over a neighboring house, it must be entirely cut down; but if it projects over land, it need only be trimmed to the height of fifteen feet from the ground.
2. Pomponius, On Sabinus, Book XXXIV.
If a tree on the premises of a neighbor is made to project over your land by the force of the wind, according to the Law of the Twelve Tables, you can bring an action against your neighbor to compel him to remove it, on the ground that he has no right to have a tree in that condition.
TITLE XXVIII.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE
GATHERING OF FRUIT WHICH HAS FALLEN FROM THE
PREMISES OF ONE PERSON UPON THOSE OF ANOTHER.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "Where any nuts fall from the premises of your neighbor upon yours, I forbid force to be employed to prevent him from gathering them, and carrying them away within the space of three days."
(1) All kinds of fruits are included under this term.
TITLE XXIX.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF A PERSON WHO is FREE.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "You shall produce any person who is free, the possession of whom you fraudulently hold."
(1) This interdict has been framed for the purpose of maintaining freedom; that is to say, to prevent any persons who are free from being restrained of their liberty by anyone.
2. Venuleius, Interdicts, Book IV.
For there is not much difference between slaves and persons who have not the power to depart at their pleasure.
3. Ulpianus, On the Edict, Book LXXI.
The Lex Favia also had reference to this, and the interdict does not prevent recourse to the Favian Law, for a person can institute proceedings under the interdict, and an accusation can still be brought under the Lex Favia,; and vice versa, anyone who institutes proceedings under this law can, nevertheless, avail himself of the benefit of the interdict, especially as one party can employ the interdict, and the other make use of the action authorized by the Favian Law.
(1) These words, "any person who is free," have reference to every one who is free whether he has reached the age of puberty or not; whether the individual is male or female; whether there is one, or there are several; and whether the party in question is his own master, or under the control of another; for we only consider whether he is free.
(2) He, however, who has another under his control, will not be liable under this interdict, as he is not considered to hold anyone fraudulently who avails himself of a right to which he is legally entitled.
(3) If anyone restrains of his liberty a person whom he has ransomed from the enemy, he will not be liable under the interdict, because he does not do so fraudulently. It is clear that if he tenders the amount of the ransom the interdict will apply. But, if he releases him without having received the money, it must be said that there will be ground for the interdict, if once having given him his liberty, he afterwards desires to hold him.
(4) If anyone retains his son, who is not under his control, he is usually considered to do so without being guilty of fraud; for genuine affection causes his retention to be made, without the presumption of fraud, unless the existence of bad faith is evident. Hence, the same rule will apply if a patron subjects to his authority his freedmen, his foster-child, or a slave still under the age of puberty, who has been surrendered by way of reparation for damage which he has caused. And, generally speaking, anyone who has a good reason for retaining control of a freeman is not considered to act in bad faith.
(5) If anyone continues to hold a free person with his own consent, he is not considered to do so in bad faith; but what if he holds him with his consent, but, after having deceived, seduced, or solicited him, without having good and sufficient reasons for doing so ? He is very properly held to retain him fraudulently.
(6) A man who does not know that a freeman is one of his family is not guilty of bad faith; but when he is aware of it, and still holds him, he is not free from fraud.
(7) It is clear that if he who holds possession of the freeman is in doubt as to whether he is free or a slave, or institutes proceedings to ascertain his condition, this interdict must not be employed, but proceedings to establish freedom should be instituted, for it has very properly been held that there will only be ground for this interdict where there is no doubt that the man is free. If, however, a question is raised as to his condition, the right to bring another action ought not to be prejudiced.
(8) The Praetor says, "You shall produce the person." To produce hin\ is to bring him to public notice, and afford an opportunity of seeing and touching him. The term "to produce" literally means not to keep him in secrecy.
(9) This interdict will lie in favor of every individual, for no one is forbidden to favor freedom.
(10) It is clear that all those who are liable to suspicion should be' excluded from the use of this interdict, if the character of the person
is such that he is presumably acting in collusion, or for the purpose of annoyance.
(11) If, however, a woman or a minor desires to make use of this interdict for the benefit of a blood-relative, a parent, or a connection, it must be said that the interdict should be granted; for they can prosecute others in criminal cases when they do so for injuries committed against themselves.
(12) But where there are several persons who wish to avail themselves of this interdict, the one who has the greatest interest in the matter, or who is best fitted for the purpose, should be selected by the PraBtor; and this choice should depend upon the relationship, the trustworthiness, or the rank of the individual selected.
(13) If, however, when proceedings have been instituted under this interdict, another person desires to proceed under it, it is evident that permission to make use of it cannot afterwards readily be granted to another, unless something can be proved with reference to the perfidy of the original prosecutor. Therefore, where proper cause is shown, this interdict can be employed more than once. For one person cannot be prosecuted more than once in criminal cases, unless the first accuser is convicted of prevarication. But the defendant, having been convicted, prefers to pay the damages assessed in court rather than produce the man, it will not be unjust to grant the same interdict against him repeatedly, or grant it to the same party who cannot be barred by an exception, or to someone else.
(14) Labeo says that this interdict may be granted against a person who is absent, and if no defence is made by him, his property can be taken in execution.
(15) This interdict is perpetual.
4. Venuleius, Interdicts, Book IV.
If anyone restrains of his liberty a freeman who is not aware of his own condition, he will still be required to reproduce him, if he fraudulently retains him under his control.
(1) Trebatius, also, says that anyone who in good faith purchases a freeman as a slave, and retains him under his control, is not liable.
(2) A man who is free should, at no time, be fraudulently restrained of his liberty, and this is so far true that some authorities hold that not even the least delay should be allowed the person required to produce him, as he is liable to the penalty for an act which has been committed.
(3) This interdict does not lie in favor of a creditor, for the purpose of producing his debtor in court; for no one is obliged to produce a debtor who conceals himself, but under the Edict of the Pra?tor his property may be taken in execution.
TITLE XXX.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF CHILDREN AND THEIR RECOVERY.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "You shall produce any male or female child who is subject to the authority of Lucius Titius, and who is in your hands, or whose possession you have fraudulently relinquished."
(1) This interdict is intended to be employed against one whom a parent desires shall produce a child that he alleges is subject to his authority. It is evident from the words of the Edict tha,t it will lie in favor of the person entitled to the control of the child.
(2) In this interdict, the Prsetor does not consider the reason why the child is in the possession of him who is required to produce it, as is the case in a former interdict; but holds that it should by all means be restored, if it is subject to the authority of the plaintiff.
(3) If, however, it is the mother of the child who retains it in her possession, and it appears to be better that it should remain under her care than to be placed under that of its father, that is to say, if the reason is perfectly just, the Divine Pius decided, and it was stated in a Rescript by Marcus Severus, that relief should be granted to the mother by means of an exception.
(4) In like manner, if it should be ascertained that the child was under no one's control, although this decision may be unjust, if anyone should attempt to proceed under this interdict, he can be barred by the exception of res judicata; so that the question is no longer whether the child is under the control of the plaintiff, but whether there has been a decision on this point.
(5) If a father wishes to take his daughter away, or to have her produced after she is married to me, cannot an exception be granted me against the interdict, if he, having, in the first place, agreed to the marriage, should afterwards desire to dissolve it, even if children have been born? Where a marriage has been properly solemnized, it certainly ought not, under our practice, to be interfered with on account of paternal control. Still, an attempt should be made to persuade the father not to exert his right of paternal authority with too much severity.
2. Hermogenianus, Epitomes of Law, Book VI.
On the other hand, the father can, with much more propriety, be compelled by the husband of his daughter to produce her, and permit him to recover her, even if she is under paternal control.
3. Ulpianus, On the Edict, Book LXXI.
The Prsetor next says: "If Lucius Titius is under the control of Lucius Titius, I forbid force to be employed to p'revent the latter from taking Lucius Titius with him."
(1) The interdicts previously mentioned are exhibitory, that is. to say, they have reference to the production of children and others of
whom we have spoken. This interdict also relates to the removal of such persons, and anyone who has the right to do so can take them away from him. Therefore, the first interdict, which relates to the production of children, is preparatory to this one, by which the plaintiff can remove the person who was produced.
(2) This interdict should be granted for the same reason for which we have stated children should be produced in court. Hence, whatever we have previously stated should also be understood to be applicable here.
(3) Moreover, this interdict is not granted against the child itself whom the plaintiff desires to take away, but someone must appear to defend it against the interdict. The interdict, however, will not lie, and the Praetor himself can at once proceed, and render a decision, if any controversy arises before him as to whether the child is, or is not, under paternal control.
(4) Julianus says that whenever an interdict is employed, or an investigation is instituted with reference to the removal of a child, and the latter is under the age of puberty, in some instances the inquiry should be deferred until the child reaches that age, and in others, it ought to be decided without delay. This is a matter which must be determined in accordance with the rank of the persons between whom the controversy has arisen, and the nature of the case. If the party who alleges that he is the father is one whose social position, wisdom, and integrity are established, he will be entitled to keep the minor in his care until the case has been disposed of; but if he who instituted proceedings is of inferior rank, a malicious person, or one of bad reputation, the investigation should take place at once.
Likewise, if he who denies that the minor is under the control of another is honorable in every respect, and is either a testamentary guardian, or one appointed by the Praetor, and has care of the ward, and charge of him during the trial of the case; and on the other hand, he who alleges that he is his father is a malicious person, the investigation should not be postponed.
Where, however, both parties are liable to suspicion, either on account of inferior rank, or bad character, Julianus says it will not be improper to appoint someone else by whom the child can be brought up in the meantime, and postpone the determination of the case until it reaches the age of puberty; in order that, through the collusion or ignorance of one or the other of the contending parties, a child who is independent may not be decided to be under the control of another, or one who is subject to the authority of another may be held to occupy the place of the head of a household.
(5) Even if it should be conclusively proved by the father that the child is under his control, still, if after investigation it is ascertained that the mother should have the preference, and retain possession of the child, she can do so; for it was established by several decrees of the Divine Pius that the mother can obtain permission for the child to remain with her on account of the bad character of the father, without any diminution of paternal authority.
(6) In this interdict, the Praetor orders that a girl or a boy seventeen years of age, or one who is near that age, shall, pending the hearing of the case, be left in the care of the mother of the family. We say that a child is near the age of seventeen, immediately after he has reached that of puberty. The mother of a family is understood to be a woman of acknowledged good repute.
4. Africanus, Questions, Book IV.
If I say that anyone who alleges that he is the head of a household is my son, and under my control, and that, by my order, he has entered upon an estate, I ought to assert my claim to it, and have recourse to the interdict under which I can take my son away with me.
5. Venuleius, Interdicts, Book IV.
If a son is in the possession of another with his own consent, this interdict cannot be employed, because he is rather in his own possession than in that of him against whom proceedings may be instituted under the interdict, as he has free power to depart or remain; unless there is a dispute between two persons, each of whom alleges that he is his father, and one of whom demands that the child shall be produced by the other.
TITLE XXXI.
CONCERNING THE INTERDICT UTRUBI. 1. Ulpianus, On the Edict, Book LXXII.
The Praetor says: "I forbid force to be employed to prevent anyone from removing a slave from the place where he is at present, if he has remained there the greater part of the year."
(1) This interdict has reference to the possession of movables; it, however, obtains its validity in the same way as the interdict Uti possidetis, which only applies to real property; so that he also will succeed under this interdict who has obtained possession of the slave without the employment of force, or clandestinely, or by a precarious title, if an adversary attempts to interfere with his possession.
TITLE XXXII.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE REMOVAL OF TENANTS.
1. Ulpianus, On the Edict, Book LXXIII.
The Praetor says: "I forbid force to be employed to prevent your tenant from leaving, and taking with him the slave in question, if the latter does not constitute a part of the property which, in accordance with the agreement between yourself and the plaintiff, should be held by way of pledge to secure the rent; whether the said property has been taken or brought inta your house, born there, or made there; but if he forms part of the same, I forbid you to prevent your tenant
from taking him away with him, when he departs; provided he has paid you the rent out of said property, or has furnished you security for it, or you are to blame for its not having been paid."
(1) This interdict was introduced for the benefit of a lessee who wishes to depart after having paid his rent. It does not lie in favor of a tenant on a farm.
(2) Relief can also be given to a lessee by extraordinary proceedings, and therefore this interdict is not frequently employed.
(3) Still, it will lie in favor of one who has a gratuitous lodging.
(4) If the rent is not yet due, Labeo says that this interdict cannot be employed, unless the tenant is ready to pay it. Hence, if he has paid it for half the year, and owes it for the other half, he cannot have recourse to the interdict unless he pays the rent for the remaining six months. This, however, is only the case where a special agreement was made when the house was rented, providing that the lessee should not be permitted to leave before the end of the year, or before a specified time has elapsed.
The same rule applies where anyone rents a house for several years, and the term has not yet expired; for where property is pledged for the entire amount of the rent, the result will be that the interdict will not be available, unless the articles pledged have been released.
(5) It must, however, be noted that the Praetor does not require the property to belong to the lessee, nor that it should have been expressly pledged, but that it must be brought into the house as pledged. Hence this interdict will apply, even if the property belongs to another, if it has been brought into the house for the purpose of being pledged, and is such as cannot be given in pledge. If it has not been brought in for that purpose it cannot be retained by the lessor.
(6) This interdict is perpetual, and is granted for and against heirs.
2. Gaius, On the Provincial Edict, Book XXVI.
There is no doubt that this interdict will lie in favor of a lessee, even with reference to property which does not belong to him, but which has been lent to, hired by, or deposited with him.
TITLE XXXIII.
CONCERNING THE SALVIAN INTERDICT. 1. Julianus, Digest, Book XLIX.
If a tenant on a farm brings a female slave on the land, for the purpose of pledging her, and afterwards sells her, an interdict should be granted in order to obtain possession of a child born to the said female slave while she was in the hands of the purchaser.
(1) If a tenant brings property on a farm, which is owned by two persons, for the purpose of pledging the same, with the understanding that it shall be jointly encumbered to both of them, each one can properly make use of the Salvian Interdict against a third party; but
if this interdict is granted with reference to them alone, the position of the possessor will be preferable.
If, however, it was agreed that the property should be equally encumbered to each of the joint-owners of the land, a praetorian action should be granted between them, and against other parties, by means of which each of the said joint-owners can obtain possession of half
the property.
(2) It is proper that the same rule should be observed where a tenant brings property held in common with another upon the land, for the purpose of pledging the same, so that pursuit of the pledge may only be made for half of the value of the property in question.
2. Ulpianus, On the Edict, Book LXX.
In the Salvian Interdict, if the property to be pledged is brought upon land belonging to two joint-owners, the party in possession will be preferred, and they must have recourse to the Servian Action.
THE DIGEST OR PANDECTS. BOOK XLIV.
TITLE I.
CONCERNING EXCEPTIONS, PRESCRIPTIONS, AND PRELIMINARY INQUIRIES.
1. Ulpianus, On the Edict, Book IV.
He is held to occupy the position of plaintiff who makes use of an exception, for where a defendant has recourse to an exception he becomes a plaintiff.
2. The Same, On the Edict, Book LXXIV.
An exception is so called for the reason that it operates as an exclusion, and is ordinarily opposed to proceedings to collect a claim, for the purpose of barring the statement of the same as well as judgment in favor of the party who brings the suit.
(1) Replications are nothing more than exceptions pleaded by the party plaintiff, which are necessary in order to bar exceptions; for a replication is always introduced for the purpose of opposing an exception.
(2) It must be remembered that every exception, or replication, is for the purpose of preventing the opposite party from proceeding further. An exception bars the plaintiff, and a replication bars the
defendant.
(3) It is customary for a triplication to be granted against the' replication, and other pleas to follow in order and, after this, the
names are multiplied, whether the defendant or the plaintiff interposes an objection.
(4) We usually say that some exceptions are dilatory, and others peremptory; as, for instance, a dilatory exception is one which postpones the action, thus one denying the authority of an agent is a dilatory exception. For he who alleges that anyone has not the power to act as an attorney does not deny that the action should be brought, but maintains that the person who brings it is not qualified to do so.
3. Gaius, On the Provincial Edict, Book I.
Exceptions are either perpetual and peremptory, or temporary and dilatory. Those are perpetual and peremptory which will always lie, and cannot be avoided; for example, those based on fraud and res judicata, and where anything is alleged to have been done against the laws or decrees of the Senate; also such as are applicable in the case of an informal agreement, that is to say, such as provide that the money due shall, under no circumstances, be collected.
Exceptions are temporary and dilatory which cannot be brought at any time, and can be avoided; and of this description is a temporary agreement between the parties under which an action cannot be brought for a specified period, for instance, within five years. Exceptions by which the action of an agent is barred, and which can be avoided, are also dilatory.
4. Paulus, On the Edict, Book XX.
If the question is asked whether a ward can be barred by an exception on the ground of fraud, where money which was due to him has been paid without the authority of his guardian, and he demands payment a second time, it must be ascertained whether, when he makes the demand, he still has the money, or has purchased something with it.
5. The Same, On the Edict, Book XVIII.
A defendant who alleges that he has already sworn in court that he does not owe the money for which he is sued, can avail himself of all other exceptions in addition to that based on taking the oath, or of the rest of them without it; for he is permitted to make use of several defences.
6. The Same, On the Edict, Book LXXI.
If a legatee brings an action to recover the property bequeathed, an exception based on the fraud of the testator can be pleaded against him; for, just as an heir who succeeds to the entire estate can be barred by an exception, so a legatee can also be barred as the successor of an individual part of the same.
7. The Same, On Plautius, Book III.
Exceptions to which certain persons are entitled do not pass to others; as, for instance, where a partner, a father, or a patron, can
plead an exception to have judgment rendered against him only for the amount which he is able to pay; this privilege is not granted to a surety. Hence the surety of a husband, who was given after the marriage has been dissolved, will have judgment rendered against him for the entire amount of the dowry.
(1) Exceptions which have reference to property can, however, also be pleaded by sureties; for example those based on res judicata, fraud, and where an oath has been exacted, if this was done under duress. Therefore, if the principal debtor entered into an agreement concerning the property, his surety will, by all means, be entitled to an exception.
An exception based upon the appearance of a surety, on the ground that the claim will prejudice the right of freedom, can also be employed by him. The same must be said where anyone has become surety for a son under paternal control in violation of the Decree of the Senate, or for a minor of twenty-five years of age, who has been defrauded. If, however, he has been deceived with reference to the property, he will not be entitled to relief before he obtains restitution, and an exception should not be granted the surety.
8. The Same, On Plautius, Book XIV.
No one is forbidden to avail himself of several exceptions, even though they may be different in their character.
9. Marcellus, Digest, Book HI.
An adversary is not considered to admit the claim of the other party, merely because he has recourse to an exception.
10. Modestinus, Opinions, Book XII.
Modestinus gave it as his opinion that a judgment obtained by others does not prejudice those who were not parties to the suit; and even if he, against whom judgment was rendered, should become the heir of the person who gained .the case, an exception, based on the fact that, under this judgment, he has failed to effect what he undertook in his own name before he became the heir, cannot be pleaded against him.
11. The Same, Opinions, Book XIII.
A man acknowledged as genuine certain notes which were, in fact, forged, and paid them after judgment was rendered against him. I ask, if the truth should subsequently be ascertained, and the notes found to be forged, and the defendant should desire to prove this in accordance with the order of the court, or an interlocutory decree; and, as he had admitted the genuineness of the said notes, whether he could be opposed by an exception, as it is clearly established by the Imperial Constitutions that although a judgment may be obtained by means of forged documents, and they are afterwards ascertained to be false, the fact that the matter has been decided cannot be pleaded in bar. Modestinus answered that, for the reason
that payment was made through mistake, or security was furnished in the case of these notes, which were afterwards alleged to be forged, there would be no ground for an exception.
12. Ulpianus, On the Edict, Book XXXVIII.
Generally speaking, in questions dependent on preliminary decisions, he sustains the part of a plaintiff whose claim is in accordance with what he demands.
, 13. Julianus, Digest, Book L.
If, after judgment has been pronounced in a case involving an entire estate, suit is brought to recover certain specified articles, it is settled that an exception on the ground that the estate will be prejudged cannot be pleaded in bar, for the reason that exceptions of this kind are introduced because they may affect a future decree, if not the one which has already been rendered.
14. Alfenus Varus, Digest, Book II.
A son under paternal control sold a slave forming part of his peculium, and a stipulation was made for the price. The slave was returned under a conditional clause of the contract and afterwards died, and the father demanded from the purchaser the money which the son had stipulated should be paid to him. It was decided to be just that an exception in factum should be pleaded against him, setting forth that the money had been promised for the slave who had afterwards been returned under a condition of the contract.
15. Julianus, On Urseius Ferox, Book IV.
A replication alleging bad faith should not be pleaded against an exception founded upon an oath taken in court, as the Praetor should see that no question is subsequently raised with reference to such an oath.
16. Africanus, Questions, Book IX.
You are in possession of the Titian Estate, and you and I have a lawsuit with reference to the ownership of the same. I allege that there is due to this estate a right of way through the Sempronian Estate, which belongs to you. If I bring suit to recover the right of way, it is held that you can avail yourself of an exception on the ground that the action pending for the ownership of the property ought not to be prejudged; that is to say, that I cannot show that I am entitled to the right of way before I have proved that the Titian Estate is mine.
17. Paulus, On the Edict, Book LXX.
If, however, I bring an action to recover the right of way, and afterwards one to recover the Titian Estate, as the objects of the litigation are distinct, and the reasons for restitution different, the exception will cause no injury.
18. Africanus, Questions, Book IX.
I bring an action against you for half of a tract of land which you say is yours, and I wish, at the same time, to bring one in partition against you before the same judge. Again, if I allege that a tract of land of which you are in possession is mine, and I wish to recover the crops from you, the question arises whether an exception based on the principle that I ought not to bring a suit, the decision of which will prejudge the case which involves the ownership of all, or a part of the land in question, will operate as a bar, or should be denied.
It is held that, in both instances, the Praetor should intervene, and not permit the plaintiff to institute proceedings of this kind, before the question of the ownership of the land has been determined.
19. Marcianus, Institutes, Book XIII.
All exceptions to which the principal debtor is entitled can also be employed by his surety, even against the consent of the former.
20. Paulus, On the Manner of Drawing up Formulas.
Exceptions are pleaded either because the party did what he should have done; or because he did what he ought not to have done; or because he did not do what he should have done. An exception on the ground of property sold and delivered, or on that of res judicata, is granted for the reason that something has been done which ought to have been done. An exception on the ground of fraud is granted, because something has been done which ought not to have been done. An exception on the ground that praetorian possession of property which has been given has not been permitted, is granted because something was not done which should be done.
21. Neratius, Parchments, Book IV.
One action is said to prejudge another, with reference to a larger sum of money, when a question arises in court which is connected either wholly, or in part, with a suit involving a larger amount of property.
• 22. Paulus, Various Passages.
An exception is a proceeding which sometimes relieves the defendant from the risk of having judgment rendered against him, and sometimes diminishes the amount of the judgment.
(1) A replication opposes an exception, and is, as it were, an exception to an exception.
23. Labeo, Epitomes of Probabilities by Paulus, Book HI.
Paulus: If anyone places a statue in a city with the intention that it shall belong to the city, and afterwards desires to claim it in court, he can be barred by an exception in factum.
24. Hermogenianus, Epitomes of Law, Book VII.
A son under paternal control can acquire for his father an exception on the ground of an oath having been taken, if he swears in court that his father does not owe anything.
TITLE II. CONCERNING THE EXCEPTION BASED ON RES JUDICATA.
1. Ulpianus, On the Edict, Book II.
As judgments rendered between litigants cannot prejudice others who are not parties to the suit, proceedings can be instituted under a will by which freedom is granted, or a legacy is bequeathed, although the will may have been broken, or may have been declared void, or may have been held not to have been drawn in accordance with the prescribed legal formalities; but, still, if the legatee should lose his case, the testamentary grant of freedom will not be affected.
2. The Same, On the Edict, Book XIII.
Where an action is brought against the heir of a testator who passed over his son in his will, and the plaintiff is barred by an exception on the ground that the will is in such a condition that possession of the estate can be granted by the Praetor contrary to its provisions, and the emancipated son has neglected to apply for possession of the estate, it is not unjust that he should be enabled again to institute proceedings against the heir. This was stated by Julianus in the Fourth Book of the Digest.
3. The Same, On the Edict, Book XV.
Julianus, in the Third Book of the Digest, states that an exception on the ground of res judicata can be opposed whenever the same question again arises in court between the same parties. Therefore, if anyone brings an action for the entire estate, after having lost one, brought to recover a portion of the same, or vice versa, he will be barred by an exception.
4. The Same, On the Edict, Book LXXII.
An exception on the ground of res judicata is tacitly understood to include all those persons who are interested in the case.
5. The Same, On the Edict, Book LXXIV.
Proceedings are considered to be instituted with reference to the same question, not only when a plaintiff does not make use of the same action which he brought in the first place, but when he brings another relating to the same matter. For instance, if anyone having brought an action on mandate should, after his adversary promised to appear in court, bring one on the ground of voluntary agency, or one for the recovery of the property, he institutes proceedings relating to the same matter. Hence, it is very properly said that he only does not institute proceedings with reference to the same matter who does not again attempt to accomplish the same result. For when anyone changes the action, he must also change the nature of his claim; as he is always considered to bring suit with reference to the same matter, even if he has recourse to a different kind of action from the one which he employed in the first place.
6. Paulus, On the Edict, Book LXX.
It has very reasonably been held that one action is sufficient for the settlement of a single controversy, and one judgment for the termination of a case; otherwise, litigation would be enormously increased, and would be productive of insurmountable difficulties, especially where conflicting decisions have been rendered. It is therefore very common to introduce an exception on the ground of res judicata.
1. Ulpianus, On the Edict, Book LXXV.
If anyone, after having brought an action for all of certain property and lost it, should then bring suit to recover a portion of the same, he will be barred by an exception on the ground of res judicata; for a part is included in the whole, and is considered the same thing where a portion of something is claimed and all of it had previously been demanded. Nor does it make any difference whether the claim is made for a certain article, or for a sum of money, or for a right. Hence, if anyone sues to recover a tract of land, and afterwards brings an action for a divided or an undivided portion of the same, it must be said that he will be barred by an exception. Or if you suggest, as an example, that I bring an action for a certain part of a tract of land, the whole of which I have previously sued for, I will be barred by an exception.
The same rule must be adopted where, in the first place, suit is brought for two different articles, and afterwards one is brought for either of them; as the exception will operate as a bar. Likewise, if anyone brings an action to recover a tract of land and, having lost it, he then brings one for the trees which have been cut on said land, or if he, in the first place, brings suit for a house, and subsequently brings one for the ground on which it stands, or the lumber or stone of which it is built, the same rule will apply. This is also the case if I, in the first place, bring suit for a ship, and then bring one to recover the individual parts of which it is composed.
(1) If I bring an action to recover a female slave who is pregnant, and who conceived and brought forth a child after issue was joined in the case, and I then bring an action to recover the child, whether I shall be decided to have asserted the same claim or a different one, is an important point. And, indeed, it may be held that an action is brought for the same thing, wherever what was demanded before the first judge is demanded before a second one. Therefore, in almost all these cases, an exception will operate as a bar.
(2) A difference, however, exists with reference to the stone and timbers of which a house is composed, for where anyone brings a suit for a house, and loses it, and afterwards brings one for the stone or the timbers, or anything else, as his property, he is in such a position that he will be considered to have asserted a different claim, for a house may belong to a person who does not own the stones of which it is constructed. Finally, where materials have been used for the erection of a house belonging to another, the owner can recover them after they have been separated from the building.
(3) The same question arises with reference to the crops, as where the child of a female slave is involved. For these things are not yet in existence, still they are derived from the property to recover which the action has been brought; and the better opinion is that this exception will not apply to them. It is, however, clear that if either the crops or the offspring of the slave have been included in the restitution of the property, and their value has been appraised, the result will be that an exception can be effectively interposed.
(4) And, generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover certain articles forming part of the estate; or if, after having brought an action to recover certain articles belonging to it, and failed, he then brings one to recover the entire estate, he will be barred by an exception.
(5) The same rule should be adopted where anyone, having brought an action to collect a claim from a debtor of an estate and lost it, brings one to recover the entire estate; or, on the other hand, if, in the first place, he brought an action to recover the estate, and afterwards brings one to collect a debt forming a part of the assets of the same, an exception, in this instance, will operate as a bar; for if I bring suit for an estate, all the property and rights of action appertaining to it are considered to be included in the claim.
9. Ulpianus, On the Edict, Book LXXV.
If I bring suit against you for an estate and I am defeated, because you are not in possession of any of it, and I again bring an action to recover it, after you have obtained a portion of the same, can this exception be properly pleaded against me? I think that the exception will not operate as a bar whether it was decided that the estate was mine, or whether my adversary was discharged from liability because he was not in possession of any part of it.
(1) If anyone, having defended his title to a tract of land of which he thought he was in possession, and judgment being rendered for the plaintiff, the defendant afterwards purchases the land, can the plaintiff be compelled to restore it to him? Neratius says that if an exception on the ground of res judicata is pleaded against him who brings suit for the land a second time, he can reply that judgment was rendered in his favor.
(2) Julianus says that an exception on the ground of res judicata passes from the original party in interest to the purchaser, but does not revert from the purchaser to the original party. Therefore, if you sell property belonging to an estate, and I bring an action to recover said property from the purchaser, and gain the case, I cannot plead the exception against you, if you bring suit against me. But if the judgment was not rendered between the person to whom you sold the property and myself.
10. Julianus, Digest, Book LI.
Or if I have lost my case, you will not be entitled to the exception against me.
11. Ulpianus, On the Edict, Book LXXV.
If a mother should, under the Decree of the Senate, bring suit to recover the estate of her minor son who is deceased, for the reason that she thought that, the will of his father having been broken, no pupillary substitution could have been made, and she should be defeated, because the will of the father had not been broken, and, after the will had been opened, where the pupillary substitution should appear, none was found to exist, and she again brings an action for the estate, she will be barred by an exception on the ground of res judicata; so Neratius says. I do not doubt that she will be barred by an exception on the ground of res judicata, but relief should be granted her, because she only advanced one point in her favor, namely, that the will of the father had been broken.
(1) Finally, Celsus says that if I bring an action to recover a slave whom I think is my property, because he was delivered to me by someone else, while, in fact, he is mine, because he belongs to an estate which I have inherited, and I bring a second action, after having lost the first, I can be barred by an exception.
(2) If, however, anyone brings suit for land on the ground that Titius had delivered it to him, and, having been defeated, afterwards sues for it on some other ground, he should not be barred by an exception.
(3) Julianus also says, if you and I are heirs of Titius, and you bring an action against Sempronius for part of a tract of land which you allege belongs to the estate, and you are defeated, and I afterwards purchase the same part of the land from Sempronius, I can interpose an exception against you by way of a bar, if you bring suit in partition against me, because the matter has been judicially decided between you and my vendor. For if, before I bring suit for the said part of the land, I should bring an action in partition, an exception can be interposed on the ground that the matter between you and myself has been disposed of in court.
(4) Where the origin of two claims is the same, it also makes a second demand the same. But if I bring an action for a tract of land, or a slave, and lose my case, and afterwards I should have a new cause of action from which I derive ownership, I will not be barred by this exception, unless my ownership, having been lost for the time being, is afterwards recovered by a certain species of postliminium. But what if the slave whom I claim should be taken by the enemy, and afterwards returns under the right of postliminium? In this instance I will be barred by the exception, because the matter is understood to be the same; but if I should have obtained the ownership for some other reason, the exception will not operate as a bar. Therefore, if property is bequeathed to me, under a condition, and while it is pending, having acquired the ownership of it, I bring suit, and
I am defeated, and then, the condition having been fulfilled, I again sue to recover the legacy, I think that an exception cannot be pleaded, because I formerly had a different title to ownership than I have at present.
(5) Hence, if ownership is acquired after the first claim has been made, it changes the nature of the case, but the change of the opinion of the plaintiff does not do so; as, for example, if anyone thinks that he has the ownership of property through inheritance, and changes his opinion, and believes that he is entitled to it on account of a donation. This does not give rise to a new claim, for no matter in what way, or where a person may have acquired the ownership of the property, his right to it has finally been disposed of in the first action.
(6) If anyone brings suit for the right to walk through the land of another, and afterwards brings one to drive through the same land, I think that it can be strongly maintained that one thing was asked for in the first place, and another in the second, and therefore that an exception on the ground of res judicata cannot be interposed.
(7) It is our practice, where an exception on the ground of res judicata is pleaded, to include all the parties who have a right to bring the matter into court with the plaintiff. Among these are the attorney who was directed to bring the action, a guardian, the curator of an insane person or a minor, and the officer who has charge of the business of a city.
On the side of the defendant, whoever undertakes the defence is included because he who institutes proceedings against him brings a suit in court.
(8) Where anyone brings an action against a son under paternal control for the recovery of a slave, and afterwards brings one against the father for the same slave, there will be ground for this exception.
(9) If I bring suit against my neighbor to compel him to take care of his. rain-water, and afterwards one of us should sell our land, and the purchaser brings the same action, or it is brought against him, this exception will operate as a bar, but only with reference to such work as has been performed after the decision was rendered.
(10) Likewise, if Titius should give to Seius, by way of pledge, property which he attempted to recover from you, and Seius afterwards should bring an action on pledge against you, it must be ascertained when Titius pledged the property. If he did so before bringing suit, the exception will not operate as a bar, because he should have presented the claim, and I retain my right of action on pledge unimpaired.
If, however, he pledged the property after he brought suit, the better opinion is that an exception on the ground of res judicata will operate as a bar.
12. Paulus, On the Edict, Book LXX.
When the question is asked whether or not this exception will operate as a bar, it should be ascertained whether the same property is involved;
13. Ulpianus, On the Edict, Book LXXV.
Either the same amount, or the same right which was the subject of the first action.
14. Paulus, On the Edict, Book LXX,
It should also be ascertained if the same cause of action exists, or the persons are of the same rank, and if these things do not coincide, the case is different. Where this exception is pleaded, the same property is understood to be that which was the subject of the first action, even though its quality or quantity may not have been absolutely preserved, and no addition to, or deduction from it has been made, as the term should be accepted in its broadest significance, on account of the welfare of the parties interested.
(1) Where anyone enjoys the usufruct of a portion of the property, and brings suit to recover the entire usufruct, and loses his case, 3nd he then brings an action for the other half of the usufruct, which has subsequently accrued to him, he will not be barred by an exception, for the reason that the usufruct does not accrue to a portion of the estate, but to the person himself x
(2) In cases of this kind, personal actions differ from real ones, for where the same property is due to me from the same individual, each cause of action is based on a separate obligation; and a judicial proceeding having reference to one of them is not annulled by a similar demand for another. But when I bring a real action without mentioning on what ground I allege the property to be mine, all titles to it are included in the claim for one portion, because, although the property cannot be mine more than once, it may be due to me several times.
(3) Where anyone institutes proceedings under the interdict to recover possession of property, and afterwards brings a real action, he will not be barred by an exception, because proceedings to obtain possession under an interdict, and a suit to determine the ownership of the property, are different.
15. Gaius, On the Provincial Edict, Book XXX.
Where a suit involving an estate is pending between you and myself, and you have in your possession some property belonging to said estate, and I also have some, there is nothing to prevent me from bringing an action against you to recover the estate, and, on the other hand, nothing to prevent you from bringing an action against me for the same purpose. If, however, after the case has been disposed of, you bring such an action against me, it will be necessary to ascertain whether the estate was adjudged to be mine or yours. If it was decided to be mine, the exception on the ground of res judicata will operate as a bar against you; because, for the very reason that judgment has been rendered in my favor, and the estate found to belong to me, it has been decided not to be yours. If, however, it has been found not to belong to me, nothing is understood to have been determined with reference to your title to it, because it may be that the estate does not belong to either of us.
16. Julianus, Digest, Book LI.
For it would be extremely unjust that an exception on the ground of res judicata should benefit the party against whom the judgment was rendered.
17. Gaius, On the Provincial Edict, Book XXX.
If I bring suit against you to recover property which belongs to me, and you are discharged from all liability because you proved that you have ceased to hold possession of said property, without any fraud on your part; and then, after you have obtained possession of said property a second time, I again bring an action against you, an exception on the ground of res judicata cannot effectually be interposed against me.
18. Ulpianus, On the Edict, Book LXXX.
Where anyone brings suit for the production of property and his adversary is discharged from liability because he was not in possession, and he having afterwards regained possession, the owner brings suit a second time, an exception on the ground of res judicata can not properly be pleaded, because the condition of the case is different.
19. Marcellus, Digest, Book XIX.
A certain man gave the same property in pledge at two different times, the second creditor brought an action on pledge against the first one, and gained the case, and the first afterwards brought a similar action against the second. The question arose whether an exception on the ground of res judicata would operate as a bar. If the second creditor had pleaded the exception before the property had been pledged to him, and he could advance nothing which was new and valid, the exception would undoubtedly be a bar, for it brings up the same point which had already been decided.
20. Pomponius, On Sabinus, Book XVI.
Where suit was brought under a will against the heir by a person to whom all the family silver had been bequeathed, and who thought that only certain tables had been left him, and brought into court solely the question of appraisement of said tables, and afterwards sued to recover the money which had been left to him, Trebatius says that he will not be barred by an exception, for the reason that he did not bring suit for this in the first place, and did not intend to do so, nor did the judge render any decision with reference to it.
21. The Same, On Sabinus, Book XXXI.
If silver plate has been bequeathed to me by will, and I bring an action against the heir to recover it, and it should afterwards be ascertained that the testator had also bequeathed to me his wardrobe by a codicil, the latter legacy will not be affected by the former decision, because neither the parties to the suit, nor the judge, understood that anything was in dispute except the silver plate.
(1) If I bring suit to recover a flock of sheep, and I am defeated, and the flock either increases or diminishes in number, and I again bring an action to recover the same flock, an exception can effectually be interposed against me. If I bring suit for any one of the animals composing the flock, and it is present as part of the same, I think that the exception will still operate as a bar.
(2) If you bring an action against anyone to recover Stichus and Pamphilus, whom you allege are your slaves, and your adversary is discharged from liability, and you again bring suit against him, claiming Stichus as your slave, it is established that you will be barred by an exception.
(3) If I bring an action for a tract of land which I allege to be mine, and afterwards bring one to recover the usufruct of the same, on the ground that, as the land belongs to me, its usufruct is also mine, I will be barred by an exception, because anyone who owns land cannot bring suit to recover the usufruct of it. If, however, I bring an action to recover the usufruct, as being mine, and afterwards, having obtained the ownership of the land, I again sue for the usufruct, it can be said that the case is different; as, after I obtained the land itself, the usufruct which I formerly enjoyed ceases to be mine as a servitude, and again becomes my property by the right of ownership, and, as it were, by a different title.
(4) If you become surety for my slave, and an action is brought against me on account of his peculium, and I gain the case, and afterwards an action is brought against you for the same cause, an exception on the ground of res judicata can be effectually pleaded.
22. Paulus, On the Edict, Book XXXI.
If an action on deposit is brought against an heir, and lost, the plaintiff can bring one against the other heirs who cannot avail themselves of an exception on the ground of res judicata. For although the same question is involved in different actions, still the change of the parties against whom suit is individually brought gives the case a different aspect. If a suit is brought against the heir on account of fraud committed by the deceased, and afterwards one is brought against him for some fraudulent act of his own, an exception on the ground of res judicata will not operate as a bar, because a different question is involved.
23. Ulpianus, Disputations, Book III.
When an action only for the recovery of interest lost is brought, there need be no apprehension that an exception on the ground of res judicata will operate as a bar in a suit for the principal, for, as it is rib advantage, neither, on the other hand, will it be any impediment.
The same rule will apply where, in a bona fide contract, the plaintiff wishes only to collect the interest, for the interest still continues to run, because as long as the contract in good faith stands it will. do so.
24. Julianus, Digest, Book IX.
Where anyone buys property from a person who is not its owner, and is afterwards discharged from liability when the owner himself brings suit to recover it, and the purchaser then loses possession of the property, and institutes proceedings to recover it from the owner who has obtained possession of the same, the latter can have recourse to an exception on the ground that the property belongs to him, and the other can reply that it has not been decided to be his.
25. The Same, Digest, Book LI.
If anyone who is not an heir should bring an action for the estate and, after having become an heir, should again sue for the same estate, he will not be barred by an exception on the ground of res judicata.
(1) It is in the power of a purchaser to bring an action to compel the property to be returned within six months, where the condition was that if a slave was worth less than he was sold for, the excess paid should be refunded; for this latter action also includes the clause for the return of the money, when the slave had such a defect that, on account of it, the purchaser would not have bought him if he had been aware of it. Wherefore, it is very properly said that if the purchaser who has made use of either one of these actions should afterwards employ the other, he can be barred by an exception on the ground of res judicata.
(2) If you interfere in my business, and bring an action for a tract of land in my name, and I afterwards do not ratify the claim which you have made but direct you to again bring an action to recover the same land, an exception on the ground of res judicata will not act as a bar when conditions have changed since the mandate was given.
The same rule will apply where a personal action, and not a real one, is brought.
26. Africanus, Questions, Book IX.
I brought an action against you alleging that I had a right to raise my house ten feet higher, and lost it. I now bring one against you alleging that I Have a right to raise my house twenty feet higher. An exception on the ground of res judicata can undoubtedly be pleaded. If I again bring suit alleging that I have the right to raise my house still ten feet higher, an exception will operate as a bar; for since I could not raise it to a lower height, I certainly would not be entitled to raise it to a still higher one.
(1) Likewise, if having brought an action to recover a tract of land, and lost it, the plaintiff brings suit for an island which was formed in a river opposite said land, he will be barred by an exception.
27. Neratius, Parchments, Book VII.
When, in a second action, the question arises whether the property is the same as that which was the object of the first one, the fol-
lowing things must be considered: first, the parties interested; second, the property for which suit was brought; and third, the immediate cause of action. For now it is of no consequence whether anyone believes that he has a good cause of action, any more than if, after judgment had been rendered against him, he should find new documents to strengthen his case.
28. Papinianus, Questions, Book XXVII.
An exception on the ground of res judicata will bar one who succeeds to the ownership of the party who lost the case.
29. The Same, Opinions, Book I.
An exception on the ground of res judicata will not operate as a bar against a co-heir who was not a party to the suit; and a slave, who has not yet been manumitted under the terms of a trust, cannot be. again claimed as a slave, after judgment has been rendered in favor of his freedom; but it is the duty of the Praetor to see that the judgment is complied with in this case, as he cannot decide in favor of the party who was defeated. For if suit to declare a will inofficious has been brought against one of the co-heirs, or two co-heirs have brought actions separately, and one of them gains his case, it has been established that the grants of freedom must take effect; still, it is the duty of the judge to provide for the indemnity of the party who is successful, and who is to manumit the slave.
(1) If a debtor brings suit to determine the ownership of property, which he pledged without notifying the creditor, and judgment is rendered against him, the creditor will not be considered to occupy the place of the defeated party, as the agreement with reference to the pledge preceded the decision.
30. Paulus, Questions, Book XIV.
A certain man who could succeed to it as heir at law, having been appointed heir to the sixth part of an estate, contested the legality of the will, and having demanded half of the estate from one of the appointed heirs, lost his case. He is held to have included the sixth part of the estate in his claim, and therefore, if he brought suit for the same share under the same will, an exception on the ground of res judicata will operate as a bar against him.
(1) Latinus Largus: A transaction took place with reference to an estate which belonged to Maevius, but whose right to it was disputed by Titius, and a transfer of the property of the estate was made by Titius to Mrevius, as the heir, in which transfer a certain tract of land which, several years before, had been hypothecated to the grandfather of Maevius, and afterwards to another person was delivered, in pursuance of the contract. These matters having been settled, the second creditor of Titius brought suit for his claim, and gained it. After this judgment, Msevius found among the papers of his grandfather the note executed by Titius, by which it appeared that the land which was included in the said transaction had also been encum-
bered by the said Titius to his grandfather. Therefore, as it was evident that the land formerly hypothecated to the grandfather of Msevius, the heir, was the same as that on account of which Msevius had a judgment rendered against him in favor of the second creditor, I ask whether the right of his grandfather, of which he was ignorant at the time that the action was brought to recover the land, could not be barred by pleading an exception. I answered that if the ownership of the land was in question, and a decision was rendered in favor of the said creditor, we should hold that an exception on the ground of res judicata would operate as a bar against the party who lost the former suit bringing another, because as the plaintiff had been successful, the question appears to be the same one previously involved.
If, however, the person in possession should be discharged from liability, and, having lost possession, should bring suit to recover it from the same party who was not successful in the first place, he will not be barred by an exception, for in the judgment rendered in his favor, nothing was decided with reference to his title. When, however, the action on pledge was brought against the first creditor, no question might happen to be raised as to the title of the party in possession, because in controversies having reference to ownership, what was decided to be mine is at the same time decided not to belong to another; but, in the case of an obligation, the result will be that, where property is encumbered in favor of one person, it does not follow that it is not encumbered to another, if the latter can prove that this is the fact.
It may be said, that it is probable that an exception will not operate as a bar, as there was no doubt as to the right of the possessor, but only as to the encumbrance. In the case stated, however, the point which presents the greatest difficulty to me is whether the right of pledge is extinguished, when the ownership of property is acquired; for the right of pledge cannot continue to exist where the creditor becomes the owner of the property. An action on pledge, however, will lie, because it is true that the property was pledged and the claim was not satisfied. For which reason I do not think that an exception on the ground of res judicata will operate as a bar.
31. The Same, Opinions, Book HI.
Paulus held that an exception on the ground of res judicata could not be effectually pleaded against anyone who brought a personal action for the recovery of property, who had previously brought an action for the same property and lost it.
TITLE III.
CONCERNING DIFFERENT TEMPORARY EXCEPTIONS AND THE UNION OF SEVERAL POSSESSIONS.
1. Ulpianus, On the Edict, Book LXXIV.
For the reason that a" discussion frequently arises with reference to available days, let us see in what the power to maintain one's
rights consists. In the first place, it is requisite for the plaintiff to have power to bring an action, for it is not sufficient for the defendant to be able to himself make a defence, or employ someone who can properly do so for him, but the plaintiff also must not be prevented by any lawful reason from instituting proceedings. Hence, if he is in the hands of the enemy, or absent on business for the State, or is in prison, or if he is detained somewhere by a storm so that he cannot bring the suit, or direct this to be done, he is held not to have the power to do so. It is clear that a person who is prevented by illness, but is able to direct suit to be brought, should be considered as having the power to do so. There is no one who is not aware that he who has not the opportunity of appearing before the Praetor has not the power to bring an action. Hence only those days are available on which the Praetor dispenses justice.
2. Marcellus, Digest, Book VI.
The question is asked whether or not the intercalary day should be counted in favor of the party against whom judgment was rendered, in the time prescribed for levying execution on the judgment. Should it also be included in the time fixed by law for the right of action to be extinguished ? It should undoubtedly be held that the time is prolonged by the intercalary day; for instance, where a question arises with reference to usucaption which is to be completed within a prescribed period, or to actions which must be brought within a certain time, as is the case with the greater portion of those which have reference to the acts of the Jildiles.
If, however, anyone should sell a tract of land under the condition that, unless the price was paid within thirty days, the sale should be void, will the purchaser be entitled to the benefit of the intercalary day? I hold that he will not.
3. Modestinus, Differences, Book VI.
It is clear that prescription based upon long possession applies to land as well as to slaves.
4. Javolenus, Epistles, Book VII.
If a slave belonging to an estate, or to anyone who is in the hands of the enemy, should receive security for the payment of a debt, the time prescribed for said security begins to run immediately; for we must ascertain not whether he who placed a lien on the property can bring an action, but whether the person in whose favor it was encumbered has a right to do so against the former. Otherwise, it would be extremely unjust if, on account of the rank of the plaintiffs, the obligations of the defendants should be prolonged, since nothing can be done by them to prevent suit from being brought against them.
5. Ulpianus, Disputations, Book III.
Let us see whether any defect in the title of the plaintiff, or of the donor, or the testator who bequeathed me property, will prejudice
my rights, if he did not have a good title to its possession in the first place. I think that it will neither be of any disadvantage nor of any benefit to me, for I can acquire by usucaption something which the party from whom I obtain the property cannot acquire in that manner. (1) The following case has been proposed. A certain woman sold an article after having pledged it, and her heir redeemed it. The question arises whether the heir can make use of an exception on the ground of long possession against the creditor attempting to obtain possession of the pledge. I held that this heir who redeemed the pledge from a third party can avail himself of the exception, because he succeeds to the place of the latter, and not to that of him who pledged the property. The case is the same as if he had redeemed the property and subsequently became the heir.
6. Africanus, Questions, Book IX.
If I sell the same property, separately, to two persons, the purchaser to whom it was first delivered will be the only one who will profit by the possession. For if I sell you anything, and afterwards purchase it from you, and then sell it to Titius, he will be entitled to the benefit of both your possession and mine, because you are obliged to give possession to me, and I am obliged to transfer it to him.
(1) I sold you a slave, and it was agreed between us that unless the price was paid by a certain date, the sale should be considered void. As this actually took place, the question arose what opinion should be given with reference to the additional time you held the slave. The answer was, that the same rule should be observed as in the case where the property is returned under a condition; for it is just as if you had sold me the slave a second time, and, when the vendor afterwards obtained possession of him, the time which preceded the sale was added to that during which the slave was held by the party by whom he was returned.
7. Marcianus, Institutes, Book HI.
Where anyone has fished for years in a certain place in a public river, he excludes another from enjoying the same right.
8. Ulpianus, Rules, Book I.
In computing the addition of the time of possession, it is true that the master is entitled to the benefit of the time during which the slave was in flight.
9. Marcianus, Rules, Book V.
It is provided by certain Rescripts of the Divine Antoninus that there is ground for prescription, where long-continued possession of movable property has existed.
10. Pomponius, Opinions, Book XIII.
An "informer, having notified the Treasury of certain property which had had no owner within the prescribed four years, desisted,
after having given notice. After the four years had elapsed, a second informer having appeared, the first notice will not be available to prevent possession from being barred by lapse of time, unless the collusion of the first informer can be established, and this having been done, the prescription, as well as everything else relating to the affair, will be annulled.
(1) The term of four years which is fixed for notifying the Treasury of the existence of property without ownership is not computed according to mere opinion, but with reference to the character of the unoccupied property. The four years are reckoned from the time when a will is decided to be of no effect; or the possession of an intestate estate has been rejected by all those who had the right to claim it, in the regular order of succession; or where the time prescribed for each of them to do so had expired.
11. The Same, Definitions, Book II.
Where an heir succeeds to all the rights of the deceased, his ignorance does not affect any defective title of the latter; for example, if the deceased knew that the property belonged to another, he held possession of it by a precarious title. For, although such a title does not bind the heir who was not aware of it, and proceedings under the interdict cannot properly be brought against him, still, he cannot acquire the property by usucaption, as the deceased was unable to do so.
The same rule of law applies where property is claimed on the ground of long-continued possession, for an action cannot legally be defended where, in the beginning, it was not founded on a bona fide title.
12. Paulus, Opinions, Book XVI.
A creditor, who could have been barred from the possession of his pledge by lapse of time, sold the pledge. I ask whether the possessor could legally avail himself of an exception against the purchaser. Paulus answered that this exception could also be pleaded against the purchaser.
13. Hermogenianus, Epitomes of Law, Book VI.
In all matters in which the Treasury is interested, prescription for twenty years is available, except in cases where a shorter time has been expressly provided by the Imperial Constitutions.
(1) Any accounts which have been duly assigned and cancelled cannot be produced against the person responsible for them, after twenty years, or against his heir after ten years have elapsed.
14. Scxvola, Questions Publicly Discussed, Book II.
We cannot lay down any rules of general or perpetual application with reference to the union of one possession to another, for this depends upon equity alone.
(1) It is clear that such a union is granted to those who succeed to us, even by virtue of a contract, or under a will. The addition of
the time when the property was possessed by a testator is granted to the heirs, and to those who occupy the place of his successors.
(2) Therefore, if you sell me a slave, I can add the time during which he was in your possession.
(3) If you have given me an article in pledge, and I myself pledge it to someone else, my creditor will be entitled to the addition of the time during which you had possession of it, not only against a third party, but also against you yourself, so long as you did not pay me; for when anyone has the preference over me, as I have over you, there is much more reason to hold that he should be preferred to you. If, however, you should pay me the money, he cannot, under such circumstances, benefit by the time that the property remained in your hands.
(4) Likewise, if, during your absence, someone who is considered to have charge of your business should sell me a slave, and you ratify his act after your return, I can certainly profit by the time during which he was in your possession.
Again, if you give me property in pledge, and it is agreed between us that, if you do not pay the money, I can sell the pledge under the contract, and I do sell it, the purchaser will be entitled to the addition of the time that the property was in your possession, even though the pledge was sold without your permission, for when you made the contract it is held that you consented to the sale, if you should not pay the money.
15. Venuleius, Interdicts, Book V.
In the case of usucaption, the rule is observed that if the property is in possession only for a moment during the last day, the usucaption is, nevertheless, completed; for the entire day is not required for the completion of the prescribed time.
(1) The addition of time of possession not only includes that during which the property remained in the hands of the vendor but also the time that the purchaser held it, where the latter also disposed of it. If, however, one of the vendors was not a bona fide possessor, the possession of those who preceded him will be of no advantage, because the possession is not continuous, just as the possession of a vendor cannot be added to that of someone who is not in possession.
(2) It must also be added that, if you purchased the property yourself, or ordered someone else to do so, and he also directed it to be sold to a third party, continuity of possession is necessary. If, however, he who is directed to sell the property, should direct another to sell it, Labeo says that the addition of possession of him who gave the second mandate should not be allowed, unless the owner consents for this to be done.
(3) But if I purchase property from a son under paternal control, or from a slave, the addition of the time during which it was in possession of the father, or the master, should be granted me, if the property was sold either with the consent of the father or the master,
or as part of the peculium of the slave who was entrusted with its administration.
(4) The time of possession by a ward is also added to that of a person who purchased the property from his guardian. The same rule should be observed in the case of anyone who buys property from the curator of a minor or an insane person. If the sale has been made in behalf of an unborn child, or because possession of the property has been obtained for the purpose of its preservation, or it is diminished on account of a dowry, this addition of the time of possession will also be permitted.
(5) These rules relating to additions of the time of possession are not understood to be as comprehensive as their language indicates; for, even if the property remains in the hands of the vendor after its sale and delivery, the purchaser will only be entitled to the benefit of the time which preceded the sale, even though the vendor did not have the property in his possession when it was sold.
(6) Where an heir sells to anyone property belonging to the estate, the latter will be entitled to the benefit of the time it remained in the hands of the heir, as well as to that during which it was in the possession of the deceased.
16. Paulus, On Sabinus, Book III.
Any period of possession to which our own possession can not be added will be of no benefit whatever to us.
TITLE IV.
CONCERNING THE EXCEPTION FOUNDED ON FRAUD AND FEAR.
1. Paulus, On the Edict, Book VII.
In order that this exception may be more clearly understood, let us first consider the reason why it was introduced, and afterwards ascertain how fraud can be committed. By this means we will learn when this exception operates as a bar, and also against what persons it can be employed. Finally, we shall examine within what time it must be pleaded.
(1) The Praetor introduced this exception in order that no one could, by means of the Civil Law, profit by his own fraud against the rules of natural equity.
(2) In order to ascertain whether a fraudulent act has been committed, the facts of the case must be taken into consideration.
(3) Fraud is committed in contracts, in wills, and in the execution, of the laws.
2. Ulpianus, On the Edict, Book LXXVI.
It is clear that this exception was formulated for the same reason that the action on the ground of bad faith was introduced.
(1) In the next place, let us see in what cases there is ground for this exception, and against whom it may be pleaded. And, indeed,
it must be noted, that he whose fraudulent act is complained of must be expressly mentioned, and that the formula in rem, "If any fraudulent act has been committed with reference to the matter," should not be employed, but the following one, namely, "If no fraud has been committed by you as plaintiff." Therefore, the party who pleads the exception must prove that the plaintiff has been guilty of fraud, and it will not be sufficient for him to show that fraud has merely been committed with reference to the case; or, if he alleges it has been committed by certain persons, he must specifically enumerate them; provided they are the parties responsible for the act by which he alleges that he has been injured.
(2) It is evident that the exception is employed in a proceeding in rem if we take into account the person who pleads it, for there is no doubt against whom the fraud was committed, but there is one as to whether or not the plaintiff committed it.
(3) The following matters may be discussed with reference to the First Section, where the causes giving rise to the exception are enumerated. If anyone stipulates with another without any consideration, and then institutes proceedings by virtue of this agreement, an exception on the ground of fraud can properly be pleaded against him; for although, at the time that the stipulation was entered into, he may not have been guilty of any fraudulent act, still it must be said that he committed fraud when he joined issue in the case, and persisted in asserting his claim under the said stipulation.
And even if, at the time that the stipulation was made, he had a just cause of action, still it is held that one did not exist at the time of the joinder of issue. Hence, if anyone about to lend money enters into a stipulation, and the money is not lent, although there was a good consideration for the contract, still, as it was not executed, or was terminated, it must be said that the exception can be properly pleaded.
(4) The question is also asked, if anyone should stipulate absolutely for the payment of a certain sum of money, for the reason that this was the intention of the parties; but, after the stipulation was entered into, it was agreed that the money should not be demanded until a certain time, will an exception on the ground of fraud operate as a bar. And, indeed, there is no doubt whatever that an exception can be pleaded on the ground of an informal contract, as anyone who wishes to make use of this exception can do so; for it cannot be denied that he who makes a demand in violation of a contract which he entered into is guilty of fraud.
(5) Generally speaking, it should be noted that, in all cases where exceptions in factum are available, an exception on the ground of fraud can be pleaded in bar, because anyone is guilty of fraud who makes a demand ,which can be successfully opposed by any exception whatever; for if he did not commit fraud in the beginning, still, by making- .the claim now he is acting fraudulently, unless he was so ignorant of the facts as not to be guilty of bad faith.
(6) It has not improperly been asked, if a creditor accepts interest in advance on a loan, and persists in demanding payment of the principal before the time has passed for which he has collected the interest, whether he can be barred by an exception on the ground of fraud. It may be said that he is guilty of fraud, for by accepting the interest he is understood to have deferred collection of the debt until the time had elapsed for which interest was paid, and that he tacitly agreed not to demand payment in the meantime.
(7) The question also arises, if anyone should buy a slave who was to be free on condition of paying ten aurei, and the purchaser, being ignorant of this fact, stipulated that, in case of the eviction of the slave, he should be entitled to double his price, and then received the ten aurei from the slave, and as the latter had been evicted, and had obtained his freedom, whether the purchaser could bring an action for double the amount by virtue of the stipulation. He would be barred by an exception, unless he deducted the ten aurei which he received for the purpose of complying with the condition. This was also stated by Julianus.
If, however, the slave had paid the money out of the property of the purchaser, or out of his peculium which belonged to the latter, it may be said that an exception could not properly be pleaded, because he was not guilty of fraud.
3. Paulus, On the Edict, Book LXXI.
But if, before the ownership of the slave was transferred to me, he should pay the ten aurei to the vendor, and I should bring an action on purchase in order to recover the ten aurei, I think that I would be entitled to this action, if I was ready to release him from the stipulation to pay double the amount of the price.
4. Ulpianus, On the Edict, Book LXXVI.
The question is asked by Celsus, if the creditors of an estate, with a single exception, should direct Titius to enter upon it, and this one did this for the purpose of deceiving him, but would also have directed him to accept if he had known that Titius would not have consented to do so, and he then brings an action, will he be barred by an exception? Celsus says that he will be barred.
(1) Julianus asks, if a man who is ill promises a hundred aurei to his wife's cousin, with the understanding that the money shall come into the hands of his wife, and he afterwards recovers, whether he can plead an exception on the ground of bad faith when suit is brought against him. Julianus says that it was held by Labeo that he could interpose an exception on the ground of fraud.
(2) If we should consent to a compromise, and appoint an arbiter, " and I do not appear at the appointed time, on account of bad health, and the penalty becomes due, can I avail myself of an exception on the ground of bad faith? Pomponius says that I will be entitled to the benefit of such an exception.
(3) It is also asked, what course must be pursued if you com--promise with a debtor who owes you the sum of sixty aurei, and
through mistake you stipulate for the penalty of a hundred? Labeo holds that it is the duty of the arbiter to order as much to be paid to you as is actually due, and if this is not done, there is no reason why the excess should not be collected. But he also says, that even if the arbiter failed to state the amount which should be collected, and the penalty should be demanded, an exception on the ground of fraud can be pleaded.
(4) If a debtor pays a ward what he owes him, without the authority of his guardian, and the ward becomes enriched to that extent by this payment, it is very properly held that if he attempts to collect the amount a second time, he will be barred by an exception. For if he was pecuniarily benefited by having loaned money, or by having obtained it by means of some other contract, an exception should be granted.
The same rule must be said to apply to all other cases in which payment is illegally made, for if the parties are pecuniarily benefited there will be ground for an exception.
(5) Labeo also says that if anyone should purchase a slave knowing that he had the habit of running away, and stipulated with the vendor that this was not the case, and he afterwards brings an action based on the stipulation, he cannot be barred by an exception, as this was the agreement, although he will not be entitled to an action on purchase. If, however, such an agreement was not made, he will be barred by an exception.
(6) A certain man to whom money was due settled the account with his debtor, and sold his claim to Seius, whom the debtor had directed to purchase it, and the purchaser entered into a stipulation with reference to the transaction, and the creditor then retains the money which he had obtained by a judgment. Can the purchaser bring an action under the stipulation? Ofilius holds that if the vendor of the claim was not ready to pay over the entire amount which he received from the purchaser, an exception on the ground of fraud cannot be properly pleaded against him. I think that the opinion of Ofilius is correct.
(7) Labeo says that where suit has been brought for a slave, and judgment rendered in favor of the plaintiff, and security given by order of court for the slave to be delivered within a certain time, and a penalty has been stipulated for if he should not be delivered, the plaintiff will be barred by an exception if he claims both the slave and the penalty; for to retain possession of the slave and also to exact the penalty would be unjust.
(8) If I give you valuable pearls in pledge, and it is agreed between us that they shall be returned when the debt is paid, and the pearls are lost through your negligence, the question arises whether you can collect the money. An opinion of Nerva and Atilicinus is extant, who hold that I am entitled to an exception, as follows, "If no agreement was made between you and myself that the pearls should be returned to me if the money was paid." The better opinion,
however, is that an exception on the ground of fraud can be pleaded in bar.
(9) If a minor should give me a young slave, and afterwards bring an action to recover him, he can be barred by an exception on the ground of fraud, unless he repays the amount furnished for his support, and any other reasonable expenses incurred on account of said slave.
(10) It should, moreover, be noted that if anyone brings suit under a will, against the wishes of the deceased, he can be barred by an exception on the ground of fraud. Hence, an heir can be barred by an exception of this kind, if he acts contrary to the wishes of the deceased.
(11) Where an heir was appointed to the twelfth of an estate, which might be worth two hundred aurei, but preferred to receive a legacy instead, which was only worth a hundred, and did this to avoid being annoyed by the settlement of the estate, and brings an action to recover the legacy, can he be barred by an exception on the ground of fraud? Julianus says that he cannot. But if he received the amount, or what might be considered equivalent to it, from a substituted heir, in order to avoid accepting the estate, and then brings an action to recover the legacy, Julianus says that he is considered to be guilty of fraud, and can be barred by an exception on this ground.
(12) Where I have the usufruct of a tract of land, arid you sell me the land with my consent, the question arises whether I can be opposed by an exception if I bring suit to recover the usufruct? It is our practice that this exception, which is based on bad faith, operates as a bar.
(13) Marcellus says that a replication on the ground of bad faith should not be granted against an exception on the same ground. Labeo concurs in this opinion, for he says that, as both parties are guilty of bad faith, it would be unjust for an advantage to be obtained by the plaintiff and a penalty imposed upon the defendant, for it is far more equitable that the plaintiff should not reap any benefit from a matter in which he has acted deceitfully.
(14) There is no doubt that a replication on the ground of bad faith can be granted against the exception of the Macedonian Decree of the Senate, and it is also provided by the Imperial Constitutions and set forth in the opinions of various authorities that such a replication has the effect of a plea in bar.
(15) Labeo says that, although an action based on a stipulation will lie by virtue of the clause relating to fraud which it contains, still an exception on the ground of fraud may be properly pleaded, if, as he says, anything has been done contrary to the terms of the agreement; for it might be that the plaintiff, before the stipulation was entered into, did not commit any fraudulent act, but did so at the time that he asserted the claim on account of which an exception was necessary.
(16) Neither an exception on the ground of fraud, nor any other which can unfavorably affect the reputation of a patron or a relative in the ascending line, can be pleaded against them. Still an exception in factum can be pleaded, for instance, if it is alleged that the money forming the basis of the claim was not paid, an exception on this ground may be interposed. It, however, makes no difference whether a patron is sued on his own contract, or on one made by another, for respect must always be shown to him living or dead. If, however, a patron brings an action against the heir of his freedman, I think that the latter can interpose an exception based on the bad faith of the patron.
The freedman himself, however, can, by no means, plead an exception based on the bad faith of his patron, even if he is sued by the heir of the latter, for it is proper that honor should be shown by a freedman to his patron not only while he is living, but also after his death.
It is clear that a clause relating to fraudulent conduct should not be omitted from the stipulation, because an action on fraud arising from such a clause is not brought, but one is brought by virtue of the stipulation.
(17) We can make use of this exception both on account of the fraudulent conduct of a slave, or of any other person subject to our authority, as well as of those by whose fraudulent acts we acquire anything. So far as the fraudulent conduct of slaves and children is concerned, if any action is brought having reference to their peculium, this exception should be pleaded in every instance. If, however, the peculium is not involved, an exception on the ground of bad faith should only be interposed with reference to the matter in question, and not where some fraud was committed afterwards; for it would not be just for the fraudulent acts of the slave to injure his master more than where he made use of his services.
(18) The question arose whether an exception on the ground of bad faith can be pleaded in the case of an agent who has only been appointed to bring the suit. I think that it can be properly maintained that if the said agent was appointed for the purpose of acting in his own behalf (that is to say, if he should commit any fraudulent act before issue was joined), an exception on this ground can be interposed.1 If, however, he was not acting in his own behalf, an excep-
1 It was a general rule of the Roman law that Cessio Nominum, or the assignment of obligations, was not valid without the consent of the debtor. As this was not always obtainable, the same result was accomplished by the transfer of the right of action accompanied by a mandate to the assignee, or agent, or collect the claim, and retain as his own whatever the court allowed him. For this reason he was called "Procurator in rem, suam," or "Agent for his own affairs." Alienation of claims, under these circumstances, could be made in any way that transferred the title, that is, by sale, gift, or exchange; and by any person in whom the right was vested either directly, or in a fiduciary capacity, the assignment in the latter instance not being optional, but compulsory.
In order to protect debtors from being harassed by persons buying up claims for speculative purposes, decrees were issued from time to time by the Emperors, prohibiting assignees from collecting any more than they had paid, together with
tion can be pleaded only with reference to the fraud committed since proceedings were begun. But when the agent is one to whom the administration of all the business of the principal has been entrusted, Neratius says that an exception can be pleaded on account of any fraudulent act which he may have committed.
(19) I directed Titius to enter into a stipulation for you, Titius afterwards directed Seius to do so, and Seius stipulated for you, and brought suit. Labeo says that you can effectually interpose an exception based on my fraudulent act as well as on that of Seius.
(20) It is also asked, if my debtor should swindle you, and appoint you in his place, and I having made a stipulation with you, bring an action to enforce it, will an exception on the ground of fraud operate as a bar? The better opinion is, that you will not be permitted to plead an exception against me on the ground of the bad faith of my debtor, as I did not swindle you, but you can bring an action on that ground against my debtor.
(21) If, however, a woman should delegate her debtor to her husband, for her dowry, after she had been guilty of fraud, the same rule should be adopted, and the debtor should not be permitted to plead an exception based on the fraudulent conduct of the woman, for fear that she might remain unendowed.
(22) In a case where the heir of a father-in-law is sued to recover a dowry, and pleads an exception based on the fraud of the husband and wife for whose benefit the money is claimed, the question was asked by Julianus whether the exception will operate as a bar, so far as the woman is personally concerned. Julianus says that if the husband sues the heir of his father-in-law for the dowry, and the latter pleads an exception on the ground of fraud committed by the daughter, by whom the money would be obtained, the exception will be effective as a bar; for he holds that the dowry which the husband demands from the heir of the father-in-law is understood to be acquired by the daughter who, by means of it, will obtain her dowry. He does not state whether the heir can also plead an exception based on the fraudulent conduct of the husband. I think, however, that he was also of the opinion that an exception based on the fraud of the husband would operate as a bar, although in this_ instance, as he says, it could not be held that a dowry was acquired by the daughter.
the legal interest, except in transactions between co-heirs, or members of the same family. The remedy for this abuse was first introduced during the reign of Anastasmus, about the beginning of the sixth century. .
The assignment of a claim included all rights attaching to, or growing out o± it, and made the assignee liable to all judicial proceedings available against the assignor, in addition to any which might be employed against himself individually. To establish the validity of the transfer, it was absolutely essential that the condition of the debtor should not thereby be rendered worse than it had previously been. No guarantee as to the solvency of the latter was required, or expected; but it was indispensable that the assignor should warrant that the claim was not fictitious. The assignment, of course, extinguished the obligation, as far as the' original debtor and creditor were concerned.—ED.
(23) The question whether an exception based on the fraud of a guardian can be effectually pleaded against a ward who brings an action has been discussed by several authorities. I think that even though the interest of wards is favored by such persons, it should still be held that, where anyone fraudulently purchases the property of a ward from his guardian, or makes a fraudulent contract with him concerning the property of his ward, or where the guardian is guilty of any other fraudulent conduct, and the ward is pecuniarily benefited thereby, the latter should be barred by an exception. Nor is it necessary to make any inquiry as to whether security has been given to the ward or not, or whether his guardian is solvent or insolvent, provided he is administering the affairs of the guardianship; for how can he who enters into a contract with a guardian divine these things? If you suggest that someone has entered into collusion with the guardian it is clear that he will be injured by his own act.
(24) If someone who was not the guardian, but acted as such, is guilty of fraud, let us see whether it will injure the ward. I do not think that it will do so, for when, a person who is transacting the business of a guardian sells any property belonging to the ward, and it is obtained by usucaption, the ward will not be prevented from following his own property by an exception, even if he was furnished security, because the administration of his affairs was not granted to this individual. According to this, I think that an exception based on the fraud of the guardian can be pleaded against the ward.
(25), What we have stated with reference to a guardian can also be said to apply to the curator of an insane person, as well as to the case of a spendthrift, and a minor under the age of twenty-five years.
(26) An exception based on fraud committed by a minor of twenty-five years of age can also be pleaded, for sometimes such an exception can undoubtedly be interposed if the minor is of an age when he can legally be guilty of a fraudulent act. Julianus very frequently stated that minors who are near the age of puberty are capable of committing fraud. But what if the debtor of a ward pays a creditor of the latter, to whom he had been delegated? He says that it must be supposed that the ward has arrived at puberty, to avoid the debtor being liable to pay the money twice, under the pretext that the ward does not know what fraud is.
The same rule should be observed in the case of an insane person, if, when he was presumed to be of sound mind, he should order his debtor to pay one of his creditors, or if he should have in his house the money for a debt which he has collected.
(27) An exception based on the fraud of the vendor cannot be pleaded against the purchaser. If, however, the latter should avail himself of the addition of the time that the property was in the possession of the vendor, it seems to be perfectly just that he should be responsible for the fraud of the vendor, as he profits by his possession in this way. And, likewise, it is held that an exception which
has reference to the property will bar the purchaser, but one which is based upon an offence committed by the person will not do so.
(28) If the estate of Gaius Seius should come into your hands as the heir at law, and I should be appointed heir, and you fraudulently persuade me not to accept the estate, and I afterwards reject it, and you assign your rights to Sempronius after having been paid by him, and he brings suit against me to recover the estate, an exception on the ground of fraud committed by the person who assigned him his rights cannot be pleaded by me against Sempronius.
(29) If, however, anyone claims an estate by virtue of a legacy, or he to whom property was given by way of donation does so, can an exception on the ground of fraud committed by the party whom he succeeded be pleaded against him? Pomponius thinks that he would be barred by such an exception. I also think that those should be barred who are pecuniarily benefited by obtaining such rights, for it is one thing to purchase them, and another to succeed to them.
(30) Pomponius discusses the same question with reference to anyone who receives property in pledge, where the Servian or Hy-pothecary Action is brought, for he holds that he should be barred because otherwise the property would revert to the person who was guilty of fraud.
(31) The bad faith of the vendor, however, as we have already stated, cannot be pleaded against the purchaser. We observe this rule only with reference to purchasers, and to those who have exchanged property, or received it in payment, as well as to such as occupy the position of purchasers. If, however, a slave has been surrendered by way of reparation for damage, Pomponius thinks that the person who demands the slave, as well as the one who gave him up can have the exception pleaded against him.
Hence, where anyone is pecuniarily benefited by acquiring property in any way whatever, an exception on the ground of fraud committed by the person to whose rights he succeeds can be pleaded against him. For it is sufficient if he who has paid the price, or something instead of it, and is a bona fide purchaser, should not suffer through the bad faith of the vendor, provided he himself is not guilty of fraud. If, however, he himself is not free from fraud, he will be liable to the exception on that ground, and must suffer for his own fraudulent act.
(32) If you purchase a tract of land from Titius, which belongs to Sempronius, and it is delivered to you when you pay the price, and Titius afterwards becomes the heir of Sempronius, and sells and delivers the same land to Msevius, Julianus says that the Prsetor must protect you in your rights* because if Titius himself should sue you to recover the land, he will be barred by an exception in factum, on the ground of fraud. If Titius himself should be in possession of the land, and you should sue him by the Publician Action, and he should plead an exception against you on the ground that the property is his, you can avail yourself of a replication, as from this it is evident-that he, a second time, sold land which did not belong to him.
(33) Cassius did not introduce an exception on the ground of fear, but was content with that based on fraud, which is one of general application. It, however, seems more proper to establish an exception on the ground of fear as a plea in bar; as this, in some respects, differs from one based on fraud, because the latter includes the person of the party who committed the fraud, for an exception on the ground of fraud is a proceeding in rem; as, for instance, "where no act has been committed through fear," so that we do not examine whether the party who brings the action did anything to cause fear, but whether anything was done in the transaction by any person whomsoever, and not merely by the plaintiff, for the purpose of intimidating the defendant. And, although an exception on the ground of the fraud of the vendor cannot be pleaded against the purchaser, still, it is our practice to hold that an exception can be pleaded in bar, where fear has been caused not only by the vendor, but by anyone whomsoever.
(34) It should be noted that this exception on the ground of fear ought not to be pleaded where a son has been intimidated by his father, while under his control. The father, however, is permitted to diminish the amount of the peculium of the son, but if the latter should reject the paternal estate, relief should be granted him, as is ordinarily done.
5. Paulus, On the Edict, Book XVII.
You owe me ten aurei unconditionally. I bequeath you that sum under a condition. If, in the meantime, my heir should bring an action to collect the amount you owe the estate, he cannot be barred by an exception on the ground of bad faith, as the condition may fail to be fulfilled, therefore he should stipulate for the payment of the legacy. If, however, the heir Joes not give security, he will be barred by an exception on the ground of bad faith; for it is to the interest of the legatee to retain the amount in his hands rather than to be placed in possession of the property of the estate.
(1) If a right of way is bequeathed to anyone, and the Falcidian Law being applicable, he should bring an action to recover the entire right of way, without tendering the appraised value of the fourth part of the same, Marcellus says that he can be barred by an exception on the ground of bad faith, as the heir must provide for his own interest.
(2) Where I gave a tract of land to anyone but did not deliver it, and the person to whom I gave it without delivery of possession should build upon said land with my knowledge, and after he has done so I should obtain possession, and he should bring an action against me for what I have given him; and I should interpose the exception that the donation exceeds the limit prescribed by law, can a replication on the ground of bad faith be pleaded? This can be done, for I acted in bad faith when I permitted him to build, and did not reimburse him for his expenses.
(3) Where a slave has been appointed for the collection of money which is due, any act of bad faith subsequently committed by him will prejudice his master.
(4) If a slave is sold by someone who was permitted by his master to dispose of him, and he is then returned to his master, an exception based on his return can be pleaded against the vendor, if he brings suit to recover the price of the slave, even though he who sold him has paid the purchase money to his master.
He also will be barred by an exception based on the non-delivery of merchandise who has already paid the money to the owner of the same, and therefore, he who sold the merchandise can bring an action against the owner.
Pedius says that the rule is the same where anyone who transacts our affairs makes a sale.
(5) If I delegate to my creditor someone who intends to donate property to me over and above the amount prescribed by law, he cannot make use of an exception against the creditor, if the latter brings suit, because he only claims what he is entitled to.
The same rule applies to a husband, for he should not be barred by an exception who acts in his own name. Therefore, can it not also be said that an exception on the ground of the fraud of a wife cannot be pleaded against her husband, when he sues for her dowry, .as he would not have married the woman without a dowry, unless a separation had already taken place? Hence the donor, or a woman who has delegated, or released a debtor, is liable to a personal action brought by the latter, either to obtain his release, or, if he has paid what was due, in order that the money may be refunded to him.
(6) The case is not the same where an exception on the ground of fraud is granted, as it is where a right of action is extinguished within a certain time; for the exception is perpetual, as the plaintiff has the power to avail himself of his privilege whenever he desires to do so, but the defendant can only plead the exception after he has been sued.
6. Gaius, On the Provincial Edict, Book XXX.
If, through the agency of a creditor, his debtor should happen to lose the money which he was about to pay him, the creditor will be barred by an exception on the ground of fraud.
The same rule will apply when the creditor does not ratify the payment of money by his debtor to his own creditor.
7. Ulpianus, On the Edict, Book LXXVI.
Julianus says that if I think that I owe you money, and by your order I promise to pay it to someone to whom you wish to donate it, I can protect myself by an exception on the ground of bad faith; and, in addition to this, I will be entitled to an action against the stipulator to compel him to release me.
(1) Julianus also says that, if you think that a certain person is your creditor, and by your direction I promise to pay him a sum of money which I believe that I owe you, and he brings suit to recover it, he should be barred by an exception on the ground of fraud; and further, if I institute proceedings against the stipulator, I can compel
him to release me from the agreement. This opinion of Julianus is equitable, so that I can make use of an exception, as well as bring a personal action against the person to whom I obligated myself.
8. Paulus, On Plautius, Book VI.
He is guilty of fraud who demands something which he should return.
(1) If an heir has been charged not to collect anything from a debtor of the estate, the latter can avail himself of an exception on the ground of fraud, and can also bring suit under the terms of the will.
9. The Same, On the Edict, Book XXXII.
If the agent for a defendant suffers judgment to be rendered against him, after the money has been paid, and proceedings to enforce the judgment have been instituted against his principal, the latter can protect himself by pleading an exception on the ground of fraud. Nor can he be compelled to give up what he entrusted to his agent, for it is more just to permit money which has been dishonorably obtained to remain in the hands of the person who was deceived than under the control of him who was responsible for the deceit.
10. Marcianus, Rules, Book III.
When either a husband or a wife builds upon land which one of them has given to the other, it is the opinion of several authorities that they can hold the property by means of an exception on the ground of fraud.
11. Neratius, Parchments, Book IV.
Where an agent brings an action, an exception based on his bad faith should not be interposed against him, because the suit is that of another, and he is a stranger to it, and the bad faith of one person should not injure another. If he commits a fraudulent act after issue has been joined, it may be doubted whether an exception on this ground can be pleaded; because, by the trial of the case, it becomes that of the agent, and he conducts it, to some extent, in his own name. It has been decided that an exception can be pleaded on account of fraud committed by the agent.
The same rule will apply to the case of a guardian who brings an action in the name of his ward.
(1) In general, however, the following rule should be observed in matters of this kind, that is to say, that fraud should always be punished, even if it will not injure anyone but the person who committed it.
12. Papinianus, Questions, Book HI.
Where the justice of the defence affords means for the dismissal of an action, the defendant can be protected by an exception on the ground of fraud.
13. Paulus, Questions, Book XIV.
When a will is broken, the rights of children who have been disinherited and who have received nothing from their father's will should be preserved, and an exception on the ground of bad faith cannot be pleaded against them. This not only applies to them personally, but also to their heirs and descendants.
14. The Same, Opinions, Book HI.
Paulus gave it as his opinion that where a man builds a house upon the land of another, he cannot recover the expenses he incurred unless he was in possession, and the owner brings an action against him to recover the land, in which case, he can oppose him by an exception on the ground of fraud.
15. Scsevola, Opinions, Book V.
A surety having had judgment rendered against him on account of eviction was ready to return the land from which the purchaser was evicted, and everything else which was included in the contract of sale. If the purchaser pleads the exception based on res judicata, I ask whether he can be barred by one on the ground of fraud. The answer was that the exception can be pleaded against him, but that the judge will see that he satisfied the purchaser for all the damage which the latter has sustained.
16. Hermogenianus, Epitomes of Law, Book VI.
If a debtor delegated by an insane person whom he supposed to be of sound mind should pay the creditor of the latter, and for this reason suit should be brought against him, he can protect himself by an exception based on fraud, on the ground that the insane person profited by the transaction.
17. Scsevola, Digest, Book XXVII.
A father promised a dowry for his daughter, and entered into an agreement that he would support her and all her family. This foolish man made a note payable to his son-in-law in lieu of the interest due on the promise to give a dowry. As he had supported his daughter, and her husband had been at no expense on this account, the question arose whether an exception on the ground of bad faith could be pleaded in bar against the son-in-law, if he brought suit under the stipulation for the purpose of collecting the note? The answer was, that if her father had supported her, as was stated, and had made the promise by mistake, then an exception on the ground of bad faith could be interposed.
(1) A grandfather bequeathed a-hundred sesterces to each one of his grandchildren by his daughter, and added the following words, "I ask you to pardon me, for I could have left you much more if your father Fronto had not treated me badly, for I lent him fifteen aurei-which I could not collect, and finally, the enemy deprived me of almost
all my property." If the heir of the grandfather should bring an action to collect the fifteen aurei from the said grandchildren, who were the heirs of their father, the question arose, would he be considered to have acted against the will of the deceased, and could he be barred by an exception on the ground of fraud? The answer was that the exception would operate as a bar.
(2) An heir who was appointed to the fourth of an estate purchased for a certain sum of money the share of his co-heir who had been appointed heir to three-fourths of it, executed promissory notes for the deferred payments, and bound himself by a stipulation. The vendor of the estate died; Septitius attacked the will as being forged, and having brought suit to recover the estate from the purchaser, obtained an order of court to prevent him from disposing of any part of it. The question arose whether the heirs who brought suit under the stipulation, while a case involving the genuineness of the will was pending, could be barred by an exception on the ground of fraud. The answer was that the heirs of the vendor could be barred by an exception on the ground of fraud if they persisted in demanding payment of the notes before the case relating to the will was decided.
(3) A woman, having appointed her husband and her son heirs to equal portions of her estate, also appointed a daughter whom she had had by a former marriage her heir, as follows: "Let my daughter, Ma?via, be the heir to six-twelfths of my estate, if she accounts to her co-heirs for what I shall owe her at the time of my death, growing out of the accounts of her guardianship, which my father, Titius, her grandfather, administered." As this daughter had been appointed under a condition, if she should reject the estate in order to preserve the right of action on guardianship, the question arose whether she could claim the legacy which had been bequeathed to her by her mother. The answer was that, in accordance with the facts stated, she made the claim in question contrary to the wishes of her mother, and therefore she would be barred by an exception on the ground of bad faith.
TITLE V.
UNDER WHAT CIRCUMSTANCES AN ACTION SHALL NOT BE GRANTED.
1. Ulpianus, On the Edict, Book LXXVI.
_ An oath taken in court has the same effect as a judgment, and this is not unreasonable, as where a party tenders an oath to his adversary, he appoints him judge in his own case.
(1) If a ward tenders an oath without the authority of his guardian, we hold that this exception will not operate as a bar, unless it was tendered in court by the authority of the guardian.
(2) If a litigant who claims a tract of land tenders the oath to his adversary, and says that if the person from whom he obtained the land is willing to swear that he delivered it to him, he will abandon
the case, an exception will be granted to the party in possession of the land.
(3) If a surety should make oath in court only with reference to himself personally, that is to say, that he is not liable, this will be of no advantage to the principal debtor; and if he should take the oath with reference to the property, an exception will be granted to the principal debtor.
(4) If I manumit a slave who, while in servitude, was accustomed to transact my business, and I afterwards stipulate with him for the payment of all that he would have been obliged to pay me, if he had been free at the time when he transacted my business, and I bring suit under the stipulation, I will not be barred by an exception, for a freedman cannot complain that he is oppressed, because he was not allowed to profit pecuniarily through the use of the property of his patron.
. (5) If I make a stipulation for the purpose of placing restrictions on freedom, I cannot enforce it against my freedman. Restrictions on freedom have very properly been defined to be such as are imposed in such a way that if a freedman should offend his patron, they can be exacted from him, so that he remains continually under the apprehension that they will be required, and, on account of this apprehension, he will submit to anything that his patron demands.
(6) In a word, if some obligation is imposed upon a freedman, to take effect the moment he obtains his liberty, it must be said that there will be ground for an exception. If, however, this is done after an interval, the question admits of doubt, for no one could force him to make such a promise. Still, in this instance, the same conclusion must be arrived at if, after an investigation has been made, it is apparent that the freedman subjected himself to his patron in such a manner as to be rendered liable to a penalty under the stipulation either through fear alone, or on account of excessive respect for him.
(7) If a freedman should form a partnership with his patron in consideration of obtaining his liberty, and his patron should bring an action on partnership against him, will this exception be necessary? I think that the freedman will be released from the exactions of his patron merely by operation of law.
(8) It must be remembered, that an exception allowed because of oppressive conditions imposed on freedom, just like other exceptions, should not be refused a surety, nor anyone who, at the request of a freedman, has rendered himself liable; nor will it be denied to the freedman himself if he should be appointed the attorney of the principal debtor in order to defend his case, or if he should become his heir.
For, as the intention of the Prsetor, in obligations of this kind, is to assist the principal debtor, his design would not be effected unless the freedman should defend the surety, or him who had become liable at the request of the freedman against his patron. For it makes little difference whether the freedman is obliged to pay the patron directly, or to do so through the intervention of the surety, or through someone who has become liable on his account.
(9) Whether the promise has been made for the benefit of the patron himself, or for that of another with the consent of the former, it will be considered to have been made with the design of placing restrictions upon freedom, and therefore there will be ground for this exception.
(10) If, however, a patron should delegate his freedman to his creditor, let us see whether the former can avail himself of this exception against the creditor to whom, having been delegated, he made a promise which had the effect of placing restrictions upon his freedom. Cassius says it was the opinion of Urseius that the creditor could, by no means, be barred by the exception, because he only received what he was entitled to; but that the freedman could recover from his patron what he had paid, if he had not done this for the purpose of settling the controversy which had arisen with reference to his manumission.
(11) Again, if a freedman should delegate his own debtor to his patron, the latter cannot be barred by an exception, but the freedman can recover the amount of the debt from his patron by means of a personal action.
(12) This exception should be granted not only to the freedman himself, but also to his successors; and, on the other hand, it should be noted that the heir of the patron can be barred if he attempts to collect the money.
2. Paulus, On the Edict, Book LXXI.
If the oath is tendered to a son under paternal control, and he swears that his father does not owe anything, the exception should be granted to the father.
(1) If, where a game of chance is being conducted, I sell something in order that I may play, and the property having been evicted, suit is brought against me, the purchaser will be barred by an exception.
(2) If a slave promises a sum of money to his master in order that he may be manumitted, and his master would not otherwise have manumitted him, and, having become free, he renews his promise, it is held that his patron will not be barred by an exception if he sues to recover the money, for this sum was not promised for the purpose of placing restrictions upon freedom; otherwise it would be unjust for the master to be deprived of the slave as well as of his price. Therefore, money is promised for the purpose of imposing restrictions upon freedom whenever a master voluntarily manumits his slave, and afterwards wishes him to promise a sum of money, not with the intention of exacting it from him, but in order that his freedmen may fear and obey him.
TITLE VI.
CONCERNING PROPERTY IN LITIGATION. 1. Ulpianus, On the Edict, Book LXXVI.
When notice is served for the purpose of preventing a sale, this does not render the property in question subject to litigation.
(1) Where the title to property is in controversy between two persons, and I purchase it from a third, whose claim is not liable to dispute, let us see whether there will be ground for an exception. I think that I will be entitled to relief, because he who sold me the property was not engaged in any lawsuit, and it might happen that two others had agreed with one another to dispute the title to the property for the purpose of injuring him, as they could not involve him in litigation. If, however, proceedings have been instituted against the agent, guardian, or curator of anyone, it can be said that they have been instituted against the principal, and therefore that he will be entitled to an exception.
2. The Same, Trusts, Book VI.
If, when a slave purchased property, he knew that it was in litigation, but his master was not aware of this, or vice versa, let us see whose knowledge of the fact should be taken into account. The better opinion is that the knowledge of him who purchased the property, and not that of him by whom it was acquired, should be considered. Hence, the penalty attaching to the purchase of the above-mentioned property, which is in litigation, can be collected, provided the slave did not buy it under the direction of his master, for if he did so, even if he knew that the title was in dispute, and his master was ignorant of the fact, the knowledge of the slave will not prejudice him.
This was also stated by Julianus with reference to property in litigation.
3. Gaius, On the Law of the Twelve Tables, Book VI.
We forbid property which is in litigation to be dedicated to sacred purposes, otherwise a double penalty will be incurred, and this is not unreasonable, as in this way the condition of an adversary is prevented from becoming more oppressive. It is, however, not 'stated whether the double penalty should be paid to the Treasury, or to the adverse party. Perhaps it should be paid to the latter, in order to console him for being delivered over to a more powerful opponent.
TITLE VII. CONCERNING OBLIGATIONS AND ACTIONS.
1. Gaius, Golden Matters, Book II.
Obligations arise whether from contract, from crime, or from various other causes by operation of law.
(1) Obligations arise from contracts either by words or by consent.
(2) In the case of a loan for consumption, the obligation is contracted with reference to the property lent. Such a loan consists of articles which can be weighed, counted, or measured; as, for instance, wine, oil, grain, and money; we also lend things in such a way that their ownership vests in the person who receives them with the expectation that other articles of the same kind and quality will be given us in return.
(3) He to whom we lend anything for use is liable to us on account of the transfer of the property, but he is also obliged to restore the very same thing which he received.
(4) He, however, who has received a loan for consumption, still remains liable if he loses what he receives by any accident whatsoever; but anyone who receives an article for use is released from liability if he loses what he received by an accident which human weakness could not provide against (as, for example, by fire, by the falling of a building, or by shipwreck). He is, nevertheless, held to the strictest diligence in taking care of the article loaned; nor will it be sufficient if he loses what he received by an accident which human weakness to his own property, provided another could have exercised greater vigilance in its preservation.
He is also liable for occurrences which could not be prevented when it was his fault that the property was lost; for instance, if anyone, having invited his friends to supper, should borrow silverware for that purpose and then, having gone on a journey and taken the silverware with him, should lose it, either by shipwreck or by an attack of robbers or enemies.
(5) He, also, with whom we deposit property is liable to us for it, and is obliged to return the same article which he himself received. If, however, he should, through negligence, lose what was entrusted to his care, he will be free from liability, as he did not receive it for his own benefit, but for that of the person from whom he obtained it, and he will only be responsible if any of it was lost through fraud. He, however, will not be liable on the ground of negligence, who entrusted his property to a friend of his, who was careless, for he has only himself to blame. Still, it has been decided that gross negligence is included in the offence of fraud.
(6) A creditor who has received property in pledge is also liable on this ground, and is obliged to return the very same article which he received.
(7) An obligation is verbally contracted by question and answer; as when we stipulate that something shall be paid to or done for us.
(8) Anyone can be bound either in his own name or in that of another. Where a person is bound in the name of another, he is called a surety, and we frequently bind a man in his own name, and receive others from him who are bound by the same obligation, in which way we provide for the better discharge of an obligation which is contracted for our benefit.
(9) If we stipulate for something to be given to us, which is of such a nature that this cannot be done, it is evident that such a stipulation is void by natural law; as, for example, if an agreement is entered into for the delivery of a freeman, or for that of a slave who is dead, or for a house which has been burned, and this is done between parties who did not know that the man in question was not free, or that the slave was dead, or that the house had been destroyed by fire.
The "rule is the same if anyone should stipulate for the transfer of a sacred or religious place to himself.
(10) A stipulation is also void if a person contracts for property which belongs to himself, not knowing that this is the case.
(11) It is also established that a stipulation made under an impossible condition is void.
(12) It is clear, by natural law, that the act of an insane person who makes either a stipulation or a promise is of no effect.
(13) He resembles a child who is of such a tender age that he does not yet comprehend what he is doing. The law, however, is more indulgent to him, for anyone who can speak is believed to be capable of making a valid stipulation or promise.
(14) It is perfectly clear that a mute cannot contract a verbal obligation.
(15) The same rule also applies to a person who is deaf, for, if he can speak or promise, he should hear the words of the stipulator; but if he stipulates, he should hear the words of the promisor. Hence it is apparent that we are not speaking of one who hears with difficulty, but of one who does not hear at all.
2. The Same, Institutes, Book III.
Obligations are contracted by consent in the case of purchases, sales, hirings, leases, partnerships, and mandates.
(1) We say that obligations are contracted by consent in these ways, because formality of words or writing is not essential; but it is sufficient for those who transact the business to consent.
(2) Hence such obligations may be contracted between parties who are absent, as, for instance, by letter or by messenger.
(3) Moreover, in contracts of this description each of the parties is bound to the others for whatever should be done, consistent with justice and good faith.
3. Paulus, Institutes, Book II.
The nature of obligations does not consist in the fact that they render some property or some servitude ours, but that they require us to give something, to do something, or to be responsible for something.
(1) In the case of a loan in order for the obligation to be contracted it is not sufficient for the money merely to be given and received, but it must be given and received with the understanding that this will be the case. Therefore, if anyone gives his money to me as a donation, although it belongs to the donor, and passes into my hands, still I am not liable to him for it, because this was not our intention.
(2) A verbal obligation is also contracted, if this was the intention of the parties; for instance, if I should say to you by way of jest, or for the purpose of explaining what a stipulation is, "Do you promise me So-and-So?" and you answer, "I do promise," an obligation will not arise.
4. Gaius, Diurnal or Golden Matters, Book HI. Obligations also arise from criminal acts, for example, from theft, damage, robbery, injuries, all of which offences are of the same kind,
for they are all derived from the matter itself, that is to say from the offence; while, on the other hand, obligations arising from contract are not only derived from the transfer of the property, but also from the words and the consent of the parties.
5. The Same, Golden Matters, Book III.
Where anyone who transacts the business of an absent person performs some act by virtue of a mandate, it is evident that, from the contract which is made, actions on mandate will lie between the parties, in which each of them can prove how one should act toward the other in compliance with the rules of good faith. If, however, the agent acts without a mandate, it has been decided that the parties will be mutually liable; and, on this account, proceedings have been introduced which we designate actions based on voluntary agency, by means of which we can compel one another to do whatever justice and good faith demand.
Actions of this kind, however, do not arise either from contracts or from crimes, for he who transacts the business of another during his absence is believed to have made an agreement with him previously ; and it is no breach of the law to undertake to transact the business of another without a mandate. Thus, it can still be said that he whose business has been transacted without his knowledge has either made a contract or committed a criminal offence; but through motives of convenience it has been established that the parties are liable to one another.
This rule has been adopted for the reason that men frequently depart for foreign countries with the intention of speedily returning, and, on this account, do not commit the care of their business to anyone; and afterwards, through the occurrence of unforeseen events, they are necessarily absent for a longer time than they expected to be, and it is unjust that their business should suffer which would, indeed, happen if the person who offered to attend to their affairs should not be entitled to an action to recover any expense which he had properly paid out of his own purse; or if he whose affairs had been transacted should have no right of action against him who took charge of his business without authority.
(1) Those who are liable to an action on guardianship are not, properly speaking, considered to be bound on account of contracts, as no agreement is entered into between guardian and ward. But, for the reason that they cannot be held responsible on account of a criminal offence, they are considered to be liable under a quasi contract. In this case, also, the actions are reciprocal. For not only can the ward bring suit against his guardian, but, on the other hand, the guardian is entitled to an action against his ward, if he has expended anything upon the property of the latter, or becomes responsible for him, or encumbered his own property to one of his creditors.
(2) An heir who owes a legacy is not understood to be liable either on account of a contract or a crime, for a legatee is not understood to have made any contract with the deceased, or with his heir,
and it is perfectly clear that no criminal offence has been committed in a case of this kind.
(3) He, also, who, through the mistake of the person who made the payment, received something to which he was not entitled, is bound as in the case of a loan, and is liable to the same action as that to which a debtor is liable to his creditor. It should not, however, be understood that he who is responsible in a case of this kind is bound by a contract; for anyone who pays money by a mistake does so rather with the intention of discharging an obligation than of contracting one.
(4) If a judge should render an improper decision, he is not, strictly speaking, considered to be liable on account of a crime, nor is he bound by virtue of a contract; still, as he has committed a fault, even if this was done through ignorance, he is considered to be liable on account of a quasi offence.
(5) He, also, is considered to be liable on account of a quasi offence, if, from an apartment which belongs to him, or which he has leased, or occupies gratuitously, he throws down, or pours out anything so that it injures a passer-by. Hence, he cannot properly be understood to be liable on account of having committed an offence, because very frequently he is responsible for the carelessness of another, for instance, for that of a slave, or a child. He resembles one who places or hangs something in a part of the house under which people are accustomed to pass, and which may injure someone, if it should fall. Therefore, if a son under paternal control, who lives separately from his father, should throw down or pour out anything from his apartment, or should place or hang anything above the street which threatens injury to the passers-by, it is the opinion of Julianus that an action should be granted against the son himself, and that neither an action De peculia nor a noxal action should be granted against the father.
(6) Likewise, the master of a ship, or the proprietor of a tavern or an inn, is held to be responsible for a quasi criminal offence for any damage or theft which may be committed on board the ship, or in the tavern or inn, provided he does not himself commit the offence, but someone does whom he employs on the ship, or in the tavern or inn; for as this action cannot be brought against him on account of a contract, and as he is, to a certain extent, guilty of neglfgence for making use of the services of bad men, he is considered to be liable on account of the quasi criminal offence.
6. Paulus, On Sabinus, Book IV.
In all temporary actions, my liability is not ended until the last day "has entirely expired.
7. Pomponius, On Sabinus, Book XV.
Actions cannot be granted to a son against his father as long as he remains under his control.
8. The Same, On Sabinus, Book XVI.
An obligation contracted under the following condition, "If I wish," is void; for when you cannot be compelled to give anything unless you desire to do so, it is just as if nothing had been said. The heir of anyone who makes a promise, and who never expects to perform it, is not liable, because this condition has never been complied with, so far as the promisor himself is concerned.
9. Paulus, On Sabinus, Book IX.
A son under paternal control is not entitled to an action in his own name, except for the reparation of injury sustained, and where he has been deprived of property by violence' or clandestinely, or to recover property which he has deposited or lent; which is the opinion of Julianus.
10. The Same, On Sabinus, Book XLVII.
Natural obligations should not be considered merely because no action can be brought on account of them, but also for the reason that where money has been paid which was not due it cannot be recovered.
11. The Same, On Sabinus, Book XII.
Whatever acts we perform which derive their origin from our contracts are void, unless the beginning of the obligation is ours personally ; and hence we can neither stipulate, purchase, sell, or contract in such a way that another can properly bring an action on this ground in his own name.
12. Pomponius, On Sabinus, Book XXIX.
An heir is liable in full where fraud has been committed by the deceased in contracts of deposit, loan for use, mandate, guardianship, and voluntary agency.
13. Ulpianus, Disputations, Book I.
Actions in factum can even be brought by a son who is under paternal control.
14. The Same, Disputations, Book VII.
Slaves are responsible for their crimes, and remain so even after their manumission; they are not, however, civilly liable for their contracts, still, they are bound, and they bind others in accordance with natural law. Finally, I shall be released from liability if, after a slave has been manumitted, I pay him a sum of money which he has lent me.
15. Julianus, Digest, Book IV.
A certain man who brought an action against an heir was barred by an exception on the ground that the will was about to be set aside for the reason that possession of the estate could be granted to an emancipated son. The said emancipated son having failed to demand possession of the estate, the creditor could very properly ask that his
right of action against the appointed heir should be restored to him,, for as long as the possession of the estate could be granted to the son contrary to the provisions of the will, the heir, to a certain extent, was not a debtor.
16. The Same, Digest, Book XIII.
A man borrowed a sum of money from a slave forming part of an estate, and gave him by way of pledge a tract of land or a slave, and having requested that the land or the slave be retained by him under a precarious title, he kept possession of it under such a title. He did this because a slave belonging to an estate acquired property for it by accepting delivery of the same; and by granting property under a precarious title, the result is that it cannot be acquired by usucaption. For if he had lent the property for use, or deposited it, and it had formed part of his peculium, he would have the right to bring an action on loan or deposit for the benefit of the estate. This occurs where the contract was made with reference to his peculium, for it should be understood that possession of property is acquired under such circumstances.
17. The Same, Digest, Book XLVII.
All debtors who owe property for a valid consideration are released where the property comes into the hands of creditors in some other way from which they obtain pecuniary benefit.
18. The Same, Digest, Book LIV.
If anyone, who has stipulated to give Stichus, becomes the heir of a person who is entitled to the said Stichus under the terms of a will, and he brings suit under the will to recover Stichus, he does not annul the stipulation. On the other Rand, if he brings an action to recover Stichus under the stipulation, he will still be entitled to one under the will; because in the beginning, these two obligations were contracted in such a way that if one of them was brought into court, the other would, nevertheless, remain unimpaired.
19. The Same, Digest, Book LXXIII.
A lucrative title is not considered to arise from the promise of a dowry, for the reason that he who claims the dowry is understood to be, to a certain extent, a creditor or a purchaser. However, when a creditor or a purchaser obtains property by some lucrative title, he still retains the right to the action to recover it;, just as, on the other hand, a person who does not obtain the property by a lucrative title is not prevented from bringing an action to recover it on this account.
20. Alfenus, Digest, Book II.
A slave should not, under all circumstances, go unpunished, where he has listened to the commands of his master; for instance, when the latter has ordered him to kill someone, or to commit a theft. Wherefore, although a slave may commit piracy by order of his master, he
^should be prosecuted for doing so after he has obtained his freedom; and any act of violence which he may have committed, which is criminal, will render him liable to punishment.
If, however, a quarrel arose on account of a controversy or a dispute, or force was employed for the purpose of maintaining a right to which his master was entitled, and no crime was perpetrated, then the Prsetor should not grant an action on this ground against a freedman, who, when a slave, had obeyed the commands of his master.
21. Julianus, On Minicius, Book V.
Everyone is considered to have made a contract in the place where he bound himself to pay.
22. Africanus, Questions, Book III.
When anyone stipulates for merchandise, and accepts a surety to be furnished on a certain day, the time must be computed from the day when he received the security.
23. The Same, Questions, Book VII.
A stipulation was entered into with reference to money to be employed in commerce, and as is customary, a penalty was inserted therein for the purpose of indemnifying the person who furnished the money, if it should not be paid by the specified time. The latter demanded the money, and a part of it having been paid, he neglected to demand the remainder then, but, after the lapse of some time, he did demand it. A jurist, having been consulted, gave it as his opinion that the penalty could be collected for the time during which the debtor had not been notified to pay, and that this could even be done if he had not been notified at all; and that the stipulation would become inoperative only where the debtor was responsible for payment not having been made.
Otherwise, it must be said that, if he who had begun to push the claim should cease to do so because he was prevented by illness, the penalty would not attach. Hence, a doubt may arise, if the debtor, having been notified to pay, should himself be in default, whether the penalty would not attach, even though he afterwards tendered the money. This may be said to be more equitable, for if an arbiter appointed to arrange a settlement should order the money to be paid by a certain time, and he whom he ordered to pay it is not in default, it is held that the penalty will not attach; and therefore, Servius very properly held, if the day when the money was to be paid was not included in the decision of the arbiter, a reasonable time should be held to have been granted.
The same rule will apply where anything has been sold under the condition that, unless the price is paid by a certain time, the transaction will be void.
24. Pomponius, Rules.
If I" borrow a sum of money from an insane person, believing that he is of sound mind, and I employ that money for my own benefit, the
insane person will be entitled to an action to recover it. For, as rights of action are acquired by us under certain circumstances, when we are not aware of the fact, so, under similar circumstances, actions can be brought in the name of insane persons; for example, if the slave of such a person enters into a stipulation, or property is stolen from him, or he is injured in such a way that suit can be brought under the Aquilian Law; or if he is a creditor, ;(and his debtor should convey property to someone with the intention of defrauding him.
The same rule is applicable where a legacy is bequeathed to an insane person, or property is left to him under the terms of a trust.
(1) Likewise, if anyone who has lent money to the slave of another afterwards becomes insane, and the slave employs the borrowed money for his master's benefit, the insane person will be entitled to an action to recover it.
(2) Again, if anyone who has lent money belonging to another should afterwards become insane, and the money be expended, an action to recover it will be acquired by the insane person.
(3) Anyone who transacts the business of an insane person is liable to him in an action on the ground of voluntary agency.
25. Ulpianus, Rules, Book V.
There are two kinds of actions, one a real one, which is styled vindictio, and the other a personal one, which is called condictio. The real action is that by which we sue for property belonging to us which is in the possession of another, and it is always brought against the party in possession. The personal action is one which we bring against a person who is bound to do something for, or give something to us, and it is always against him that it is brought.
(1) Some actions are based on contract, others on an act, and others still are in factum. An action is founded upon a contract whenever one person has entered into an agreement with another for his own advantage; as, for instance, by a purchase, a sale, a hiring, a lease, and other transactions of this kind. An action based on an act is where anyone is liable for some offence which he himself has committed; for instance, a theft or an injury, or for some damage which he has caused. An action in factum is, for example, one which is granted to a patron against his freedman, by whom he has been brought into court in violation of the Praetorian Edict.
(2) All actions are said to be either civil or praetorian.
26. The Same, On Taxes, Book V.
All penal actions pass to heirs, after judicial proceedings have been instituted.
27. Papinianus, Questions, Book XXVII.
Obligations which are not valid themselves cannot be rendered so either by the decision of the judge, the order of the Prsetor, or the power of the law.
28. The Same, Definitions, Book I.
The claim made against a person is designated an "action;" one made against a thing is called a "petition," the term "pursuit," instituted for the purpose of recovering the property, is employed both against things and persons.
29. Paulus, Opinions, Book IV.
A certain sum of money was due to Lucius Titius under a judgment. He lent the same debtor another sum of money, and in taking security for its payment, he did not mention that the amount due under the judgment should also be given to him. I ask whether Lucius Titius is entitled to both actions. Paulus answered that there is nothing in the case stated why both rights of action should not remain unimpaired.
30. Scaevola, Opinions, Book I.
Where a man has been reduced to slavery, and afterwards obtains his freedom through the indulgence of the Emperor, he cannot, for this reason, be said to assume his obligations to his creditors.
31. Msecianus, Trusts, Book II.
Not only stipulations, but also any other contracts which have been made under impossible conditions are considered to be of no force or effect; as, for instance, sales or leases, where they are dependent upon impossible events, are also void; because when an agreement is made between two or more persons the intention of all of them is taken in account, and there is no doubt that they think a contract of this kind cannot be executed, if a condition is imposed which they know to be impossible.
32. Hermogenianus, Epitomes of Law, Book II.
When several actions arise from one single crime, as happens when trees are said to be cut down by stealth, it was established, after many differences of opinion, that proceedings could be instituted against all the parties.
33. Paulus, Decrees, Book III.
While it has been set forth in certain Imperial Constitutions that heirs, generally speaking, are not liable to a penalty, it has, nevertheless, been decided that if the deceased had been sued during his lifetime, his heirs will be subject to the penalty, on the principle that issue had been joined with the deceased.
34. The Same, On Concurrent Actions.
Anyone who strikes the slave of another in such a way as to injure him becomes liable by his act to a suit under the Aquilian Law, as well as to one for the reparation of damage, for injury is intentionally-committed, and damage is caused by negligence; therefore both actions will lie. There are, however, certain authorities who
hold that when one of these actions is chosen, the other is lost; and others are of the opinion that if the action under the Aquilian Law is selected, the one for the reparation of damage will be lost; since it ceases to be proper and equitable for judgment to be rendered against him who has paid the amount of damages appraised.
If, however, the action for reparation of damage has already been brought, the party will still be liable under the Aquilian Law.
This opinion should be restricted by the Praetor, unless suit is brought for the excess that can be obtained under the Aquilian Law. Hence it is more reasonable to admit that the plaintiff can make his choice of the actions, and afterwards employ the other to collect anything more than he can obtain by the first one.
(1) If anyone steals an article which I have lent to him for his own use, he will be liable both to an action on loan, and to a personal action to recover the property, but either one of these proceedings annuls the other, either by operation of law, or by the pleading of an exception; which is the better opinion.
(2) Hence it was held with reference to the tenant who had stolen something belonging to the land, that he was liable both to an action for the recovery of the property, to one for theft, and to one on the lease. The penalty of theft is not merged, but the other two actions are. This is applicable to the proceeding under the Aquilian Law; for if I lend you clothing, and you tear it, both actions will lie to recover the property. After suit under the Aquilian Law has been brought, the right to sue on the loan is extinguished; and after the action on the loan is instituted, there is some doubt as to whether the one under the Aquilian Law cannot be brought within thirty days, for the reason that it is more advantageous.
The better opinion is, that the right to bring it is retained, because it adds to the simple value of the property, and if the simple value has been paid, there will be no ground for bringing it.
35. The Same, On the Principal Edict, Book I.
With reference to Praetorian actions, Cassius says that it must be held that such as permit the pursuit of the property may be granted after a year has expired, and the others within the year. Praetorian actions, however, which are not granted after the year has elapsed, are not available against an heir; still, any profit which he has acquired may be exacted from him, just as happens in an action on the ground of fraud, in the interdict Unde vi, and in other proceedings of this description. These include the pursuit of the property, by which we endeavor to recover anything which has been taken from our patrimony, and when we proceed against the possessor of the estate of our debtor. The Publician Action, which is granted for the purpose of recovering property, is also the same kind. Where, however, this action is granted on the ground that usucaption has been interrupted, the right is extinguished within a year, because it is granted contrary to the principles of the Civil Law.
(1) An action on a contract made by municipal magistrates is granted against the duumvirs and the municipality after a year has elapsed.
36. Ulpianus, On the Edict, Book II.
In personal suits for the recovery of property, a judgment does not always imply disgrace, even though it may be rendered in cases involving infamy.
37. The Same, On the Edict of the Prsetor, Book IV.
In the term "action" are included real, personal, direct, equitable, and prejudicial actions, as Pomponius says, and also Praetorian stipulations, because they take the place of actions, as well as proceedings to provide against threatened injury, to insure the payment of legacies, and others of this kind. Interdicts are also embraced in the term "action."
(1) Mixed actions are those in which both parties are plaintiffs; as, for example, such as are instituted for the settlement of boundaries, suits in partition, and for the division of property owned in common, and the interdicts Uti possidetis and Utrubi.
38. Paulus, On the Edict, Book III.
We are not bound by the form of the letters, but by the meaning which they express, as it has been decided that writing shall not have less validity than what is meant by words uttered by the tongue.
39. Gaius, On the Edict, Book HI.
A son under paternal control, like the head of a household, is bound by all kinds of titles, and suit can be brought against him on this ground, just as can be done against a person who is independent.
40. Paulus, On the Edict, Book XI.
Legacies are considered as claims against an estate, although they begin to be payable by the heir.
41. The Same, On the Edict, Book XXII.
Whenever the law introduces an obligation, unless it is especially provided that we shall only make use of one action, even ancient actions will lie for this purpose.
(1) If two actions for the same cause can be brought, and the plaintiff could have recovered a larger sum by making use of the other, which he did not bring, it will be the duty of the court to render a decision in his favor for that amount; but if he could only have recovered the same sum, or less, the second action will be of no advantage to him.
42. Ulpianus, On the Edict, Book XXI.
A person, to whom a legacy was bequeathed under a condition is not a creditor of the estate while the condition is pending, but only
after it has been fulfilled; although it is established that anyone who stipulated under a condition remains a creditor while that condition is in abeyance.
(1) We should understand creditors to be those who are entitled to a civil action (provided they cannot be barred by an exception), or a praetorian action, or an action in factum.
43. Paulus, On the Edict, Book LXXII.
The head of a household that has arrived at the age of puberty, who is his own master, and of sound mind, can obligate himself. A ward cannot become liable under the Civil Law without the authority of his guardian. A slave cannot be bound by a contract.
44. The Same, On the Edict of the Prsetor, Book LXXIV.
There are four different kinds of obligations, for they are contracted with reference to a certain time, or under a certain condition, or with reference to a certain measure, or dependent upon certain results.
(1) There are two things to be taken into consideration with reference to time, for the obligation either begins or terminates at a certain date. It begins at a certain date, for instance, as follows, "Do you promise to pay me such-and-such a sum on the Kalends of March?" The nature of this obligation is that the amount cannot be collected before the specified time. When it is made within a certain time, for example, as follows, "Do you promise to pay me between now and the Kalends of March?" it is established that neither an obligation nor a legacy can be contracted for a time, since when anything begins to be due to another, it ceases to be due under certain circumstances.
It is clear that a stipulator can be barred by an exception on the ground of his agreement, or on account of fraud, after the time has expired. Likewise, if anyone, while delivering a tract of land, should say that he conveys the soil without the building upon it, this will not prevent the building, which by nature is attached to the soil, from passing with it.
(2) A condition is effectual which was inserted in the obligation at the time when it was contracted, and not after it had been perfected; as, for instance, "Do you promise to pay me a hundred aurei if a ship does not arrive from Asia?" In this case, however, if the condition should be fulfilled, there would be ground for an exception based on an informal agreement, or on fraud.
(3) The measure of an obligation becomes apparent when we stipulate for ten aurei or a slave, as the delivery of either one of these disposes of the entire contract, and one of them cannot be demanded as long as both are in existence.
(4) The result of an obligation has reference to either a person or a thing; to a person where I stipulate that payment shall be made . either to me or to Titius; to a thing where I stipulate than ten aurei shall be paid to me, or a slave shall be delivered to Titius; and, in
this instance, the question arises whether, when the slave is delivered to Titius, he becomes free by operation of law.
(5) When I stipulate as follows, "If you do not give me such-and-such a tract of land, do you promise to pay me a hundred aurei ?" only the sum of a hundred aurei is the object of the stipulation, but the transfer of the land is one way of discharging the obligation.
(6) If I stipulate for the building of a ship, and if you do not build it that you should pay me a hundred aurei, let us see whether or not there are two stipulations, one absolute, and the other conditional; and if the condition of the second one is fulfilled, whether it will not annul the first; or whether it will not incorporate it into itself, and become, as it were, a renewal of the first. The last is the better opinion.
45. The Same, On Plautius, Book HI.
When a man, who owes Stichus under a stipulation, manumits him before being in default, and the slave dies before the promisor is sued for not delivering him, the latter will not be liable. For he is not considered to be to blame because he did not deliver the slave.
46. The Same, On Plautius, Book VII.
An insane person and a ward are liable without the authority of their curator or guardian, where the obligation arises from the property itself; as, for instance, if I hold a tract of land in common with one of them, and have incurred some expense with reference to it, or the ward has damaged it in some way, he will be liable to an action in partition.
47. The Same, On Plautius, Book XIV.
Arianus says that there is a great deal of difference between the question whether anyone is liable or has been released. When inquiry is made with reference to the existence of liability, we should be more inclined to deny that this is the case, if we have any occasion to do so. When, on the other hand, the question is with reference to being released, the tendency should be in favor of it.
48. The Same, On Plautius, Book XVI.
In any transactions in which speech is not necessary, consent will be sufficient; and in matters of this kind a deaf person can take part, for the reason that he can understand and give his consent, as in hiring, leases, purchases, and other similar contracts.
49. The Same, On Plautius, Book XVIII.
Actions arising from contracts are granted against heirs, even where some crime is involved; as, for example, where a guardian has been guilty of bad faith in administering his trust, or where someone with whom property was deposited has committed fraud. In this, instance, even if a son under paternal control or a slave has committed a fraudulent act of this kind, an action De peculio, and not a noxal action, will be granted.
50. Pomponius, On Plautius, Book VII.
When anyone promises to pay a sum of money within a year, or has judgment rendered against him requiring him to do so, he can pay it on any day during the year.
51. Celsus, Digest, Book III.
An action is nothing else but the right to recover what we are entitled to by means of a judicial proceeding.
52. Modestinus, Rules, Book II.
We contract an obligation either with reference to the property itself, or by words, or by both of these at the same time, or by consent, or by the Common Law, or by praetorian law, or by necessity, or by a criminal offence.
(1) We contract an obligation on account of the property, when it is delivered to us.
(2) We contract one by words, where a question is asked, and a proper answer is given.
(3) We contract an obligation on account of the property and by words, where the property is delivered, and answers to questions are given at the same time.
(4) When we consent to anything, we are necessarily liable on account of our voluntary acquiescence.
(5) We contract an obligation by the Common Law, when we obey the laws in accordance with what they prescribe, or we violate them.
(6) We contract an obligation by praetorian law when something is ordered to be done or prohibited by the Perpetual Edict, or by the magistrate.
(7) Those contract an obligation by necessity who cannot do anything else than what they are directed to do. This happens in the case of a necessary heir,
(8) We contract an obligation on account of a criminal offence, where the principal part of the inquiry has reference to the illegal act committed.
(9) Even simple consent will be sufficient to establish an obligation, although it may be expressed by words.
(10) Many obligations are contracted merely by signs of assent.
53. The Same, Rules, Book HI.
Several offences committed with reference to one and the same thing give rise to different actions; but it is established that all of them cannot be employed, and if several causes of action arise from one obligation, one alone, and not all, should be made use of.
(1) When we make the general statement in an obligation, "Or for the benefit of him to whom the property shall belong," we include not only persons who have been arrogated, but also others who may succeed to us by any other right.
54. The Same, Rules, Book V.
Fictitious contracts are not legally binding, even in the case of sales, for the reason that they are only simulated, and are not based on truth.
55. Javolenus, Epistles, Book XII.
In all matters having reference to the transfer of ownership, the concurrence and the intention of both contracting parties must exist; for in sales, donations, leases, or any other kind of contracts, unless both parties agree, anything which has been begun will have no effect.
56. Pomponius, On Quintus Mucius, Book XX.
Any actions to which I may be entitled through the agency of my slave, whether they are derived from the Law of the Twelve Tables, or from the Aquilian Law, or can be brought on account of injury or theft committed, will continue to exist, even if the slave should afterwards be either manumitted or alienated, or should die.
A personal action for the recovery of property which has been stolen by the said slave will also lie, unless I, having obtained possession of him, should either alienate or manumit him.
57. The Same, On Quintus Mucius, Book XXXVI.
In all agreements which have been made, whether they were entered into in good faith or not, if any mistake has arisen through a misunderstanding of the parties, that is, if he who purchased or leased the property differed in opinion from him with whom he made the contract, the transaction will be void.
The same rule should be adopted in the formation of a partnership, so that if the partners think differently, one holding one opinion and the other another, the partnership will not be valid, as it depends upon the consent of the parties.
58. Callistratus, The Minority Edict, Book I.
It must be remembered that where issue has been joined in a case, it passes against the heir and other persons of this kind.
59. Licinius Rufinus, Rules, Book Vill.
A ward, through borrowing money, does not render himself liable by natural law.
60. Ulpianus, On the Edict, Book XVII.
Where penal actions relating to the same sum of money are concurrent, one of them never annuls the other.
61. Scsevola, Digest, Book XXVIII.
The agent of Seius sent a note to a goldsmith, at the bottom of which were the following words: "I, Lucius Kalendius, have approved
what was written above, and a balance of so much is due from us to So-and-So." I ask whether this would bind Gaius Seius? The answer was that if Seius was not otherwise bound, he would not be liable for what was stated in this document.
(1) Seia, desiring to pay a salary to Lucius Titius, sent him the following letter: "To Lucius Titius, Greeting. If you are of the same mind, and entertain the affection for me which you have always done, sell your property and come to me as soon as you receive this letter. I will pay you ten aurei every year, as long as I live, for I know how much you love me." If Lucius Titius should sell his property and go to her, I ask whether the annual salary mentioned in the letter could be collected by him. The answer was, that an investigation must be made with reference to the rank of the persons, and their motives, in order to determine whether an action should be granted.
THE DIGEST OR PANDECTS.
SEVENTH PART.
BOOK XLV.
TITLE I. CONCERNING VERBAL OBLIGATIONS.
1. Ulpianus, On Sabinus, Book XLVIII.
A stipulation cannot be made except by the words of the two contracting parties, and hence neither anyone who is dumb or deaf, nor a child, can enter into a stipulation; nor can an absent person do so, because the parties must understand one another reciprocally. Therefore, if any one of these persons wishes to make a stipulation, let him do so by means of a slave who is present at the time, and the latter will acquire for him the action based on the stipulation. Likewise, if anyone desires to bind himself, let him order that this shall be done, and he will be bound by his order.
(1) Where one of the parties present asks a question, and departs before an answer is given him, he renders the stipulation void. If, however, he asks the question while present, and departs, and on his return is answered, he will bind himself, for the intermediate time did not vitiate the obligation.
(2) If anyone should ask a question as follows: "Will you pay?" and the other answers "Why not?" the latter binds himself. This will not be the case if he assents without speaking, for he who assents in this manner is bound not only civilly but naturally; and therefore it is very properly said that even his surety does not become liable for him.
(3) If anyone, having been simply interrogated, should answer, "If such-and-such a thing is done, I will pay," it is certain that he will not be bound. And if he should be asked, "Will you pay before the fifth kalendsT' and he answers, "I will pay on the ides," he will -also not be bound, for he did not answer with reference to what he was asked; and vice versa, if he should be asked under a condition and should answer absolutely, it must be said that he will not be liable. If anything is added or taken from the obligation, it must always be held that it was vitiated, unless the stipulator should immediately accept the difference in the answer; for then a new stipulation will be considered to have been made.
(4) If when I stipulate for ten aurei, and you answer twenty, it is certain that an obligation is only contracted for ten. On the other hand, if I ask for twenty, and you answer ten, the obligation will only be contracted for ten; for although the amounts must agree, still it is perfectly clear that twenty and ten are involved.
(5) If I stipulate for Pamphilus, and you promise both Pamphilus and Stichus, I think that the addition of Stichus should be considered superfluous. For when there are as many stipulations as objects, there are, as it were, two stipulations, one of which is useful and the other useless, and the useful one is not vitiated by that which is of no value.
(6) It makes no difference if the answer is given in a different language. Hence, if anyone interrogates in Latin and he is answered in Greek, the obligation is contracted, provided the reply is suitable. The same rule governs in an opposite case. But is there any doubt whether we shall apply this only to Greek, or also to other tongues; for example, to Punic, Assyrian, or any other language? Sabinus has written upon this point, but the truth is, that any kind of speech can give rise to an obligation, if, however, each of the parties understands the language of the other either himself, or through a faithful interpreter.
2. Paulus, On Sabinus, Book XII.
Some stipulations relate to giving, and others have reference to acts to be performed.
(1) Of all these examples, some admit of partial payment, as, for instance, where we stipulate to pay ten aurei. Others do not admit of this, and in their nature are not susceptible of division; for instance, when we stipulate for a right of way, a right of passage, or a right to drive. Some, by their nature, are susceptible of division, but, unless the entire thing is given, the stipulation is not carried out; for example, when I stipulate in general terms for a slave, a dish, or any kind of a vase. For if one part of Stichus is furnished, there is, as yet, no discharge of any part of the stipulation, and it may be immediately demanded, or remain in suspense until another slave is furnished. The stipulation of furnishing either Stichus or Pamphilus is of the same kind.
(2) Therefore, in stipulations of this description, heirs cannot be released by merely giving a part, so long as all of them do not
give, the same thing; for the condition of the obligation is not changed by the person of the heirs. Therefore, if what is promised is not susceptible of division, as, for example, a right of way, each of the heirs of the promisor will be liable for all of it. But in the case where one of the heirs has paid in full, he has recourse against his co-heir by an action in partition. Hence it happens, as Pomponius says, that each of the heirs of a person who has stipulated for a right of way, or a right of passage, is entitled to an action for the whole.
Some authorities, however, think that in this case the stipulation is extinguished, because a servitude cannot be acquired by each of them separately, but the difficulty of delivery does not render the agreement void.
(3) If, however, having stipulated for a slave, I bring an action against one of the heirs of the promisor, only the share of the others due under the obligation remains to be paid. • This is also the case when a release is granted to one of the heirs.
(4) The same rule which we have mentioned, as affecting the heirs, is applicable to the promisor himself and his sureties.
(5) Again, if the stipulation has reference to an act to be performed, for instance, if I stipulate that nothing shall be done either by yourself or by your heir to prevent me from passing or driving, and one of several heirs prevents me, his co"-heir will also be liable; but they can recover what they have given him by an action in partition. Julianus and Pomponius also adopt this opinion.
(6) On the other hand, if the stipulator should die after having provided that he and his heir should enjoy a right of way, and one of his heirs should be prevented from doing so, we say that it makes a difference whether the stipulation is entirely violated, or this is done only with reference to the share of him whose right was interfered with. For if a penalty is added to the stipulation, it will be incurred in full; but those • who have not been prevented will be barred by an exception on the ground of fraud. If, however, no penalty has been imposed, then the stipulation will only be violated so far as the share of him who was prevented is concerned.
3. Ulpianus, On Sabinus, Book XLIX.
The same rule applies to the stipulation, "Do you promise that myself and my heir can have so-and-so?"
(1) The reason for this difference is, that when one of the heirs is hindered, the co-heir, who has no interest in the matter, cannot bring suit under the stipulation, unless a penalty has been imposed which causes the stipulation to be violated by all; because, in this instance, we do not inquire who is interested. But when one of the heirs, interferes, all of them are liable, for it is to the interest of him who is prevented not to be hindered by anyone.
4. Paulus, On Sabinus, Book XII.
We say the same thing, if I have stipulated that no fraud should be committed by you, or by your heir; and either the promisor or stipulator should die, leaving several heirs.
(1) Cato says, in the Fifteenth Book, that where the penalty of a certain sum of money is promised, if something else should be done, and the promisor is dead, and one of several heirs should commit the act which is provided against, the penalty will be incurred by all the heirs, each in proportion to his share of the estate, or it will only be incurred by one according to the amount of his share.
If the act provided against was committed by all the heirs, and the object of the stipulation was indivisible, as, for example, where a right of way is granted for the reason that it cannot be divided, the act is considered, to a certain extent, to have been done by all.
But where provision is made for something which is susceptible of division, for instance, that legal proceedings cannot any longer be prosecuted, then the heir who violated the stipulation will alone incur the penalty in proportion to his share. The reason for this difference is because, in the first instance, all the heirs are considered to have committed the act, since the agreement that you shall do nothing by which I may be prevented from passing or driving cannot be violated except in its entirety.
But let us see if what appears in the following stipulation is not the same thing, but rather something that resembles it, namely: "Do you promise that Titius and his heir will ratify this?" For in this stipulation he alone will be liable who does not ratify the act, and can alone bring an action for what was demanded.
This opinion was also held by Marcellus, although the master himself cannot make a partial ratification.
(2) If he who stipulated for double the amount should die, leaving several heirs, each one of them can bring an action in proportion to his share of the estate, on account of the eviction of what he is entitled to.
The same rule will also apply to a stipulation relating to an usufruct, for the prevention of threatened injury, and notice to discontinue a new work. After notice to discontinue a new work, partial restitution to its former condition cannot be made.
This rule has been adopted by stipulators on account of its convenience. Partial restitution cannot be made by a promisor,, nor can a partial defence be instituted by him.
5. Pomponius, On Sabinus, Book XXVI.
Some stipulations are judicial, some are praetorian, some conventional, and others common, that is to say, both praetorian and judicial. Judicial stipulations are such as are prescribed officially by the court, as, for instance, the provision of security against fraud.
Praetorian stipulations are such as are prescribed officially by the Praetor, for example, those against threatened injury. Praetorian stipulations must be understood to also include those having reference to the duties of the ^Mile, for these also proceed from the authority of jurisdiction.
Conventional stipulations arise from the agreement of the parties, and I am tempted to say there are as many kinds of them as
there are of objects to be contracted for, since they are employed in the same verbal obligations, and depend upon the nature of the business to be transacted.
Stipulations are common, for instance, where it is agreed that the property of a ward shall be rendered secure; for the Praetor orders a bond to be given to protect the property of the ward, and sometimes the judge does this, if it cannot otherwise be accomplished. In like manner, the stipulation for double the amount proceeds either from the judge or from the Edict of the ^diles.
(1) A stipulation is a certain form of words by which the party who is questioned answers that he will give or do whatever is the subject of the interrogation.
(2) The agreement to satisfy is a stipulation which binds the promisor that sureties shall be furnished by him, that is to say, per-sons who will promise the same thing.
' (3) The agreement to satisfy is a term which is used in the same way as to secure. For where anyone is content with what is furnished him, this is called satisfaction; and, in like manner, where sureties are furnished who bind themselves verbally and he to whom they are offered is content with them, this is designated giving sufficient security.
(4) If you promise a certain sum of money as principal, and also a penalty if it is not paid, and one of your heirs pays a portion of the principal, he will, nevertheless, be liable to the penalty until what is due from his co-heir has been paid.
The same rule applies to a penalty in the case of a reference to arbitration, where one of the parties complies with the decision of the judge, and the other does not. The heir should be reimbursed by his co-heir, for in stipulations of this kind, no other decision can be made without injuring the stipulator.
6. Ulpianus, On Sabinus, Book I.
When anyone has been forbidden to manage his own property, he -is benefited by a stipulation, but he cannot deliver anything, or bind himself by making a promise. Hence a surety cannot intervene in his behalf, any more than in that of an insane person.
7. The Same, On Sabinus, Book VI.
Where an impossible condition has been prescribed, and it has reference to the performance of some act, it is an impediment to the stipulation. The case is otherwise, however, if a condition like the following one, namely, "If he does not ascend to heaven," is inserted into the stipulation; for it is available and effectual, and applies to money which has been loaned.
8. Paulus, On Sabinus, Book II.
In the following stipulation, "If you do not deliver Stichus on the kalends, do you promise to pay ten aurei"!" the slave having died, the question arises whether the action can be brought immediately be-
fore the kalends? Sabinus and Proculus hold that the plaintiff must wait until the day, which is the better opinion, for every obligation has reference to a condition and an appointed time, and although the condition seems to have been fulfilled, still the time for performance has not yet arrived.
But with reference to one who promises as follows, "If you do not touch the sky with your finger before the kalends," we can proceed immediately. This opinion was also adopted by Marcellus.
9. Pomponius, On Sabinus, Book II.
If Titius and Seius stipulate separately, as follows, "If you do not convey such-and-such a tract of land to So-and-So, do you promise to pay me?" the time for paying one of them will not terminate until judgment is rendered, and therefore the right of action will belong to him who manifests the greatest diligence.
10. The Same, On Sabinus, Book HI.
In a stipulation such as the following, "If Lucius Titius does not come into Italy before the Kalends of May, do you promise to pay ten aurei!" it is our practice that suit cannot be brought before it is ascertained that Titius cannot come into Italy before that date, and that he has not come, either living or dead.
11. Paulus, On Sabinus, Book II.
If a son, while at home, enters into a stipulation, he is considered to have acquired for the benefit of his father on the return of the latter from the hands of the enemy.
12. Pomponius, On Sabinus, Book V.
If I stipulate as follows, "Do you promise to pay ten, or five aurei?" five will be due. And also, "Do you promise to pay on the Kalends of January, or February?" this is the same as if I had stipulated for payment on the Kalends of February.
13. Ulpianus, On Sabinus, Book XIX.
He who enters into a stipulation for payment before the next kalends is in the same position as one who stipulates for payment on the kalends.
14. Pomponius, On Sabinus, Book V.
If I stipulate with you that a house shall be built, or if I have charged my heir to build a house, it is 'held by Celsus that an action cannot be brought in this case until the time has expired in which the house could have been built, nor will the sureties be liable before that time.
15. The Same, On Sabinus, Book XXVII.
Hence doubt arises, if a portion of the house having been built it should afterwards be destroyed by fire, whether the entire time for
rebuilding it should be computed, or whether only the remaining time should be taken into consideration. The better opinion is that the entire time for rebuilding it should be granted.
16. The Same, On Sabinus, Book VI.
If you owe me Stichus or Pamphilus, and one of them should become my property in some way, you will owe me the other.
(1) A stipulation of this kind, "For each year," is both uncertain and perpetual, and does not resemble a legacy, which is extinguished by the death of the legatee.
17. Ulpianus, On Sabinus, Book XXVIII.
A stipulation is not valid when the condition imposed depends upon the will of the person who makes the promise.
18. Pomponius, On Sabinus, Book X.
Anyone who promises the same thing twice is not legally liable for it more than once.
19. The Same, On Sabinus, Book XV.
Where a stipulation is made as follows, "If a divorce takes place through your fault, do you promise to pay?" the stipulation is void, because we should be content with the penalties imposed by the laws, unless the stipulation imposes the same penalty as that prescribed by law.
20. Ulpianus, On Sabinus, Book XXXIV.
Stipulations like the following are not void, namely, "Do you promise to pay what Titius owes you when he ceases to be your debtor?" for this stipulation is just as valid as if it had been made under any other condition.
21. Pomponius, On Sabinus, Book XV.
If, after a divorce has taken place, the woman who owes nothing as dowry stipulates that she should be paid a hundred aurei as her dowry, or one who is entitled to only a hundred aurei stipulates that two hundred shall be given her by way of dowry, Proculus says that if she who is entitled to a hundred stipulates for two hundred, there is no doubt that the stipulation will call for a hundred; and that the other hundred can be collected by an action on dowry. Therefore, it must be said that if there is nothing due as dowry, a hundred aurei can be collected under the stipulation; just as when a legacy is bequeathed by way of dowry to a daughter, a mother, a sister, or anyone else whomsoever, it will be valid.
22. Paulus, On Sabinus, Book IX.
If I stipulated with you for what I believed to be gold, when, in fact, it was brass, you will be liable to me for the brass, as we agreed upon the object; but I can bring an action against you on the ground of fraud, if you knowingly deceived me.
23. Pomponius, On Sabinus, Book IX.
If you owe me a certain slave on account of a legacy, or a stipulation, you will not be liable to me after his death; unless you were to blame for not delivering him to me while he was living. This would be the case, if, after having been notified to deliver him, you did not do so, or you killed him.
24. Paulus, On Sabinus, Book IX.
If a minor owes Stichus under a stipulation, he is not considered to be in default, and be liable, if Stichus should die, unless a demand was made upon him with the consent of his guardian, or it was made upon his guardian alone.
25. Pomponius, On Sabinus, Book XX.
If I stipulate for what is already due to me under a stipulation, and the promisor can protect himself against this stipulation by pleading an exception, he will be bound by the subsequent agreement, because the first one is rendered of no effect by pleading the exception.
26. Ulpianus, On Sabinus, Book XLII.
We know that, generally speaking, dishonorable stipulations are of no force or effect:
27. Pomponius, On Sabinus, Book XXII.
For instance, if anyone promises to commit homicide, or sacrilege. It is, however, the duty of the Prsetor to refuse an action in all obligations of this kind.
(1) If I should stipulate as follows, "Do you promise to pay if you do not ascend to the Capitol within two years?" I cannot lawfully bring an action against you until the term of two years has expired.
28. Paulus, On Sabinus, Book X.
If we stipulate for property to be delivered, we do not understand that its ownership shall be transferred to the stipulator, but merely that the article itself shall be delivered.
29. Ulpianus, On Sabinus, Book XLVI.
We must remember that, in stipulations, there are as many agreements as. there are sums of money, and as many stipulations as there are articles involved. The result of this is that where a sum of money or an article which was not included in the preceding stipulation is mixed with another, a renewal does not take place, but two stipulations are made. And although it has been decided that there are as many stipulations as there are sums of money, and as many stipulations as there are articles; still, if anyone stipulates for a certain sum or a pile of money which is in sight, there are not as many stipulations as there are separate pieces of money, but only a single stipula-
tion; as it is absurd that there should be a separate stipulation for every coin.
It is also certain that there is only one stipulation for a legacy, although several objects may be included in one legacy, or there may be several legacies. Moreover, there is but one stipulation, where it refers to the entire body of slaves, or all the slaves in a household. In like manner, a stipulation which has reference to a team of four horses, or to a number of litter-b'earers, is but one. If, however, anyone stipulates for "this article and that," there are as many stipulations as there are objects.
(1) If I stipulate with a thief for a slave, the question arises whether the stipulation will be valid. What causes the difficulty is, that having stipulated for a slave, I am generally held to have contracted for my own property, and a stipulation of this kind is not valid when anyone makes an agreement with reference to what is bis own. If I should stipulate as follows, "Do you promise to give what must be given under a personal action for recovery?" there is no doubt that the stipulation will be valid. If, however, I should merely stipulate for "a slave," the stipulation will be of no force or effect. If the slave should afterwards die, without the thief being in default, Marcellus says that the latter will not be liable to a personal action, for as long as the slave lived he could have been recovered by such a proceeding. But if we suppose that he died, he is placed in such a position that the right to bring a personal action for his recovery based on the stipulation will be extinguished.
30. The Same, On Sabinus, Book XLVII.
It must generally be understood that, if anyone should state in writing that he has become a surety, all legal formalities are considered to have been complied with.
31. Pomponius, On Sabinus, Book XXIV.
If I stipulate for my own property under a condition, the stipulation will be valid if the property should not belong to me at the time when the condition is fulfilled.
32. Ulpianus, On Sabinus, Book XLVII.
If we are mistaken in the name of the slave whom we stipulate shall be delivered to us, it has been decided that the stipulation will be valid so long as no mistake was made with reference to its object.
33. Pomponius, On Sabinus, Book XXV.
If Stichus is promised to be delivered on a certain day, and dies before that day arrives, the promisor will not be liable.
34. Ulpianus, On Sabinus, Book XLVIII.
It makes a great deal of difference whether I stipulate for property which I cannot make use of in commerce, or whether someone promises it to me. If I stipulate for something which I have not the
right to dispose of in commerce, it is settled that the stipulation is void. If anyone promises me something which he cannot dispose of commercially, he injures himself, and not me.
35. Paulus, On Sabinus, Book XII.
If I stipulate for an act to be performed which Nature does not permit to take place, the obligation _ does not become operative, any more than when I stipulate that something shall be given which is not possible, unless it is the fault of someone that this cannot be done.
(1) Again, an obligation does not arise, if the object of the stipulation is something which is forbidden by law, where the cause of the prohibition is perpetual; for instance, if anyone should stipulate to marry his own sister. And even if the cause should not be perpetual, as happens in the case of an adopted sister, the same rule applies, because an offense is immediately committed against good morals.
(2) If in hiring, leasing, sales, and purchases, the other party does not answer the interrogatory, but, nevertheless, consents to what has been answered, the agreement will be valid; for contracts of this kind are not confirmed by words as much as by consent.
36. Ulpianus, On Sabinus, Book XLVIII.
If anyone having agreed to bind himself in one way is fraudulently bound in another, he will be liable under the strict construction of the law; but he can have recourse to an exception on the ground of fraud, because anyone who has been rendered liable by fraud is entitled to an exception.
The same rule applies if no fraud has been committed by the stipulator, even if the thing itself is fraudulent, for anyone who brings an action under such a stipulation commits fraud by doing so.
37. Paulus, On Sabinus, Book XII.
If I stipulate for a certain sum of money, for instance, what is in a chest, and it is lost without the fault of the promisor, nothing will be due to us.
38. Ulpianus, On Sabinus, Book XLIX.
The following stipulation, "Do you promise that I can have such-and-such a thing?" contains the provision that I shall be permitted to have it, and that nothing shall be done by anybody to prevent us from having it. The effect of this is that the other contracting party is considered to agree that you shall be permitted by all persons in the future to have what you have been promised. Therefore he appears to have guaranteed the acts of others. No one, however, will be liable if he promises that others will do something, and this is our practice. But he binds himself not to do anything to prevent the other party from having the property, and he also binds himself that neither his heir, nor any of his other successors, will do anything to prevent the stipulator from having what he promised him.
(1) If, however, he promises that no interference will take place through the agency of anyone except his heir, it must be said that his promise of the act of another is void.
(2) If he should desire to guarantee the act of another, he can promise a penalty, or the value of the property. But to what extent will he be considered to guarantee possession of the property? This has reference to cases where no one raises a controversy, that is to say, neither the promisor himself, nor his heirs, nor their successors.
(3) If anyone should raise a question, not with regard to the ownership of the property, but merely to its possession, or to the usufruct or the use of the same, or to any right attaching to what has been sold, it is clear that the stipulation becomes operative, for he has not the unrestricted right to anything where what he has is diminished in any way.
(4) The question arose whether the promise to hold property only applies to what belongs to the person himself, or whether it also applies to property belonging to others. The better opinion is that a promise of this kind can be made with reference to the property of others, if it afterwards should come into the hands of the promisor. Hence, if it still continues to belong to someone else, it must be said that the stipulation does not become operative, unless a penalty was added, although nothing may have been done by the person himself or his successor.
(5) Just as he who makes the promise and his successors are liable, so, also, the stipulation becomes operative for the benefit of the stipulator himself and his successor, if he should not be allowed to have the property. If, however, another is not allowed to have it, it is certain that the stipulation does not become operative; and it makes no difference whether I stipulate "that he shall be permitted to have it," or "that I shall be permitted to have it."
(6) Those who are under the control of others can stipulate with the latter that they shall be permitted to hold the property, for the same reason that they can stipulate for other things for their benefit. If, however, a slave should stipulate that he himself shall be entitled to have the property, the question arises whether he must be considered to have entered into a legal stipulation? Julianus, in the Fifty-second Book of the Digest, says if a slave stipulates that he shall be permitted to have certain property, or promises that nothing will be done by him to prevent the stipulator from having it, the stipulation does not become operative, although he can be deprived of the property, and he himself can take it away; for in a stipulation of this kind not a fact, but a right, is involved. Therefore, if he stipulates that nothing shall be done by the promisor to prevent him from making use of a right of way, Julianus says that not the right of stipulation, but a fact, is involved. It seems to me, however, that although the stipulation that he should be permitted to have the property includes the statement of a right, still, in the case of a slave and a son under paternal control, it should be understood to apply to the retention,
and not to the deprivation of possession, and the stipulation will be valid.
(7) This stipulation also, "Do you promise that I shall have possession?" is valid. Let us see whether a slave can properly make use of such a stipulation for his personal advantage. But although a slave cannot hold possession under the Civil Law, still this has reference to natural possession, and therefore there can be no doubt that the slave has made a valid stipulation.
(8) It is definitely settled that if a .slave has stipulated that he shall be permitted to hold property, the stipulation is valid. For although slaves cannot hold possession civilly, still there is no doubt that they can hold it.
(9) The term "to have" is susceptible of two different meanings, for we say that a person who is the owner of property has it, and that he who is not the owner holds it. Finally, we are accustomed to say that we "have" property which has been deposited with us.
(10) If anyone should stipulate that he shall be permitted to enjoy anything, this agreement does not affect the heir.
(11) And if he did not add "For himself," I do not believe that this stipulation for the usufruct will pass to the heir. This is our practice.
(12) If anyone stipulates that he and his heir shall be permitted to enjoy some right, let us see whether the heir can bring an action under the stipulation. I think that he can do so, although usufructs are different; for if the stipulation was with reference to a right of way to be enjoyed by himself and his heir, we should adopt the same opinion.
(13) If anyone desires to provide against the fraud of a promisor and his heir, it will be sufficient for him to stipulate that there is no fraud, and that there will not be any. If, however, he desires to provide against the fraud of everyone else, it will be necessary for him to add: "If any fraud exists in this transaction, or should arise hereafter, do you promise to pay a sum equal to the value of the property?"
(14) Anyone can add to his own person that of his heir.
(15) The person of an adoptive father can also be added.
(16) A distinction exists between a day which is uncertain and one that is certain; and therefore it is evident that anything which is promised at a certain time may be paid immediately, for all the intermediate time is left to the promisor for payment. And where anyone promises that, "If anything should be done, or when anything shall be done," and he does not make payment when the thing is done, he will not be considered to have complied with his promise.
(17) No one can stipulate for another except a slave for his master, and a son for his father, as obligations of this description have been contrived in order that everyone may acquire for himself anything in which he may be interested, but I have no interest in what is given to another. It is clear that if I wish to do this, a penalty should be included in the stipulation, in order that, if what has been agreed
upon should not be done, the stipulation will become operative, even in favor of a person who has no interest in the transaction. For when anyone stipulates for a penalty, his interest is not taken into account, but only the quantity and difference of the stipulation, whatever that may be.
(18) When the intention of a stipulation is examined, the language should be interpreted against the stipulator.
(19) When anyone says, "Ten to me and ten to Titius," he is understood to mean the same ten, and not two tens.
(20) If I stipulate for another, when I am interested in doing so, let us see whether the stipulation becomes operative. Marcellus says that, in a case of this kind, the stipulation is valid. Where anyone undertakes the administration of the guardianship of a ward, and gives it up to his fellow-guardian, stipulating that the property of the ward shall be secured, Marcellus says, that the stipulation can be maintained to be valid, for it is to the interest of the stipulator that what he agreed to shall be done, as he would be liable to the ward if this were not the case.
(21) If anyone promises to build or lease a house, and then stipulates with another that a house shall be built for the stipulator; or if anyone promises that Ma3vius will convey a tract of land to Titius, and if he does not do so, that he will pay a penalty; or if he stipulates with Msevius to transfer a tract of land to Titius, just as if anyone should lease something to be done which he himself had undertaken ; it is certain that he will be entitled to an equitable action based on the lease.
(22) Hence, if anyone should stipulate when it is to his interest that something should be given, he is in such a position that the stipulation will be valid.
(23) Therefore, where I stipulate that something shall be given to my agent, and, likewise, if I stipulate that it shall be given to my creditors, the stipulation will be valid, because it is to my interest that no penalty should attach, nor any land be sold which has been hypothecated.
(24) If anyone stipulates as follows, "Do you promise to produce him in court?" there is no reason why this obligation should not be valid.
(25) We can stipulate for the building of a sacred or religious edifice, otherwise we cannot bring an action under a lease.
39. Paulus, On Sabinus, Book XII.
A master, by stipulating for his slave, acquires for himself, as a fath'er also does, if he stipulates for his son; so far as this is permitted by the laws.
40. Pomponius, On Sabinus, Book XXVII.
If my son stipulates for my slave, the acquisition is obtained for my benefit.
41. Ulpianus, On Sabinus, Book L.
It is clear that no doubt can arise where anyone stipulates for payment on the Kalends of January, and adds on "the first" or "the next." And, also, if he mentions the second or the third, or any other, he also fixes the date beyond dispute. If, however, he does not mention what January, he introduces a question of fact as to his intention; that is to say, what was agreed upon between the parties; for we examine what was the intention, and decide accordingly. Where the intention is not evident, we must adopt the opinion of Sabinus, and hold that the first Kalends of January were meant. But if anyone makes a stipulation on the very day of the kalends, what rule shall we follow? I think that the intention should be considered to refer to the following kalends.
(1) Whenever the day is not stated in an obligation, the money is considered to be due at once; unless a place is mentioned which requires a certain time to arrive there. Where, however, a day is fixed, the effect is that the money will not immediately be due, from which it is clear that the mention of the time is in favor of the promisor, and not of the stipulator.
(2) This rule also applies to the ides, and the nones, and, generally speaking, to all dates.
42. Pomponius, On Sabinus, Book XXVII.
Where anyone stipulates for payment this year, or this month, he cannot properly bring suit until all of the year, or all of the month, has expired.
43. Ulpianus, On Sabinus, Book L.
If anyone should stipulate that restitution shall be made to him, for instance, by the arbitration of Lucius Titius, and then the stipulator himself should cause Titius to delay in rendering his award, the promisor will not be liable for being in default. But what if he who is to decide the matter should cause delay? It will be better to hold that the case should not be withdrawn from the jurisdiction of him to whose arbitration it was submitted.
44. Paulus, On Sabinus, Book XII.
And, therefore, if nothing is decided, the stipulation will be void, so that if a penalty has been added it can not be enforced.
45. Ulpianus, On Sabinus, Book XL.
Whatever one person stipulates in favor of another who has control over him will be considered as if the latter himself had made the stipulation.
(1) Just as anyone can stipulate for something "when he dies," so, also, those who are subject to the authority of others can stipulate in such.a'way that what they provide will take effect at the time of their death.
(2) Where anyone stipulates as follows, "Do you promise to pay my daughter after my death?" or, "Do you promise to pay me after my daughter's death?" the stipulation will be valid; but, in the first case, the daughter will be entitled to an equitable action, although she may not be her father's heir.
(3) We can stipulate not only, "When you die," but also, "If you die," for as there is no difference between "When you come," or, "If you come," likewise there is no difference between, "If you die," and "When you die."
(4) A son is understood to stipulate for payment to his father, even if he does not say so.
46. Paulus, On Sabinus, Book XII.
We can legally stipulate for payment on the hundredth kalends, because the obligation is present, and payment is postponed until the prescribed time arrives.
(1) Anything which consists of an act cannot be deferred until the death of the person, as for instance, "Do you promise to come to Alexandria when you die?"
(2) If I should stipulate as follows, "When you please," some authorities say that the stipulation is void; others hold that it is void if you should die before you make up your mind; which is true.
(3) This stipulation, however, "If you are willing to pay," is held to be invalid.
47. Ulpianus, On Sabinus, Book XL.
Anyone who stipulates as follows, "Do you promise to pay what you ought to pay on these kalendsl" is understood to be stipulated not for to-day, but for the time agreed upon, that is to say, for the kalends.
PART II.
CONCERNING VERBAL OBLIGATIONS.
48. Ulpianus, On Sabinus, Book XXVI.
If I stipulate for the payment of ten aurei on demand, the stipulation contains a notice for the payment of the amount more quickly, and, as it were, without delay, rather than conditionally; and therefore, even if I should die before making the demand, the condition will not be considered to have failed.
49. Paulus, On the Edict, Book XXXVII.
When a son under paternal control promises to deliver Stichus, and it was his fault that he was not delivered, and Stichus should die, an action De peculia will be granted against the father for the amount for which the son was liable under the obligation. If, however, the father was in default, the son will not be liable, but a praetorian action should be granted against the father.
All these things are said to be applicable to a surety.
(1) If I stipulate that nothing shall be done by you to prevent me from enjoying a right of way, and I accept a surety from you, and it should be the fault of the surety that I do not enjoy the servitude, neither party will be liable; but if the promisor is to blame, both of them will be.
(2) In the following stipulation, "It shall be done neither by you nor by your heir," the act is considered to have been performed by the heir, even though he may have been absent, and ignorant of the fact, and hence did not do what was required by the terms of the stipulation. A minor, however, is not considered to be responsible for a stipulation of this kind, even if he is the heir.
(3) If the promisor of a slave is required to deliver him before the time agreed upon, and the slave should die, he will not be held responsible.
50. Ulpianus, On the Edict, Book L.
In the following stipulation the words, "Nothing will be done by you," do not mean that you will not do anything to prevent some act from being performed, but that you will use your utmost efforts to accomplish it.
(1) Again, in a stipulation having reference to the purchase of an estate, and which is in the following terms, "All the money which comes into your hands; or which you have prevented from coming into your hands; or which you may, in the future, prevent from doing so," there is no doubt that he who has prevented anything from coming into his hands will be liable.
51. The Same, On the Edict, Book LI.
A man who has promised a slave belonging to another will not be liable to an action under the stipulation, if the slave obtains his freedom; for it is sufficient for him not to be guilty of fraud or negligence.
52. The Same, Disputations, Book VII.
In conventional stipulations the contracting parties prescribe the form of the agreement; but praetorian stipulations are governed by the intention of the Praetor who introduced them. Finally, it is not permitted to change anything in praetorian stipulations, or to add to, or take anything from them.
(1) If anyone promises to deliver a vacant possession, this stipulation, does not include a bare fact, but also has reference to the condition of the property.
53. Julianus, Digest, Book LXII.
It is very convenient to draw up stipulations in such a way that they shall contain everything which can be expressly included in them, and so that also the clause having reference to fraud will apply to matters which cannot be recalled at the time, as well as to uncertain future events.
54. The Same, Digest, Book XXII.
In stipulations, species and genera are differently distributed. When we stipulate for species, it is necessary for the stipulation to be so divided between owners and their heirs that a part of each article will be due to each one. Whenever we stipulate for genera, the division is made between them by number. For instance, if anyone who stipulates for Stichus and Pamphilus leaves two heirs entitled to equal portions of his estate, it is necessary for half of both Stichus and Pamphilus to be due to each of them. If the same person has stipulated for two slaves, one slave will be due to each of his heirs.
(1) A stipulation for services resembles those in which genera are included, and therefore a stipulation of this description is made, not with reference to the parts of the services, but to the number of those entitled to them. If a slave held in common stipulates for one kind of service, it is necessary for each of his owners to demand a part of the service in proportion to his interest in the said slave. The discharge of an obligation of this kind is very easy, if the freedman prefers to offer the appraised value of his services, or his patrons consent that his labor shall be performed for their joint benefit.
55. The Same, Digest, Book XXXVI.
When anyone stipulates that payment should be made to himself for Titius, payment can be properly made to Titius, but not to his heirs.
56. The Same, Digest, Book LII.
Where anyone makes a stipulation as follows, "Do you promise to pay ten aurei to Titius and myself?" it is probable that he stipulated for only ten aurei to be paid to Titius and himself together; just as where anyone makes a bequest to Titius and Sempronius, he is only understood to have left ten aurei to them conjointly.
(1) "Do you promise that you and Titius, your heir, will pay ten aurei!" It was superfluous to include Titius, for, if he is the sole heir, he will be liable in full; and if he is the heir to only a part of the estate, he will be liable to the same extent as the remaining co-heirs; and although it seems to have been agreed that suit could be brought only against Titius, and not against his co-heirs, still, this informal agreement which has been entered into will be of no benefit to his co-heirs.
(2) Anyone who stipulates for payment to himself or to his son clearly includes his son in the stipulation, in order that he may legally be paid. Nor does it make any difference whether he stipulates for himself and a stranger, or for himself and his son. Therefore payment can properly be made to the son, either while he is under the control of his father, or after his emancipation; nor does it matter that a party who stipulates for payment to be made to his son acquires for himself, because the stipulator, when including
himself, causes it to be understood that his son is joined with him, not for the purpose of acquiring an obligation, but to render payment more easy.
(3) Where anyone has stipulated that payment shall be made to his son alone, who is under his control, it cannot legally be made to the latter; because his son is mentioned in the contract rather on account of the obligation than for the purpose of payment.
(4) Where a person stipulates as follows, "Do you promise to pay ten aurei as long as I live?" he can legally demand the ten aurei immediately, but his heir can be barred by an exception on the ground of an informal agreement; for it is clear that the stipulator did this to prevent his heir from making the claim; just as he who stipulates that money shall be paid to him "up to the time of the kalends," can, in fact, bring suit for it after the kalends have arrived, but he will be barred by an exception based on the contract. For the heir, also, of one to whom a servitude attaching to a tract of land has been granted for his lifetime, will be entitled to the right of way, but he can be barred by an exception based on the informal agreement.
(5) He who stipulates as follows, "Do you promise to pay before the next kalends?" does not differ from one who stipulates for payment on the kalends.
(6) A person who has the ownership of property without the usufruct can legally stipulate for the usufruct to be transferred to him; for he inserts in the obligation something which he has not at the time, but which he can have subsequently.
(7) If I stipulate with you for the Sempronian Estate, and afterwards I stipulate with another for the same estate, without its usufruct, the first stipulation will not be renewed because you will not be released by transferring to me the land without its usufruct; but I can still properly bring suit against you to recover the usufruct of the said land. What then should be done? When you transfer the land to me, he also with whom I stipulated for the land without the usufruct will be released from liability.
(8) If Seius promises me, under a condition, the same slave for whom I have absolutely stipulated with Titius, and while the condition is pending, and after Titius is in default, the slave should die, I can immediately bring an action against Titius, and the condition having been fulfilled, Seius will not be liable.
If, however, I should give Titius a release, Seius will be bound, if the condition should be complied with. There is, therefore, this difference, namely, after the slave dies, the property for which Seius was liable ceases to be in existence, but the release having been given, the slave whom Seius promised still remains.
57. The Same, Digest, Book LIII.
Where anyone promises to pay ten aurei if Titius should become Consul, even though the promisor should die while the condition is pending, he will leave his heir liable.
58. The Same, Digest, Book LIV.
He who stipulates for the usufruct of land, and afterwards for the land itself, resembles one who stipulates for a part, of the land and afterwards for the whole of it, because the land is not understood to be conveyed if the usufruct is reserved. And, on the other hand, where anyone stipulates for the land, and afterwards for the usufruct, he resembles one who stipulates for all of it, and afterwards for a part. When a person stipulates for a right of way to drive, and afterwards for a footpath, the subsequent stipulation is void, just as where the stipulation of anyone for ten aurei, and afterwards for five, is void. Likewise, if anyone stipulates for the crops, and afterwards for the use of the land, the stipulation is void; unless, in all these cases, he expressly states that he does this with the intention of making a new stipulation, for then the first obligation having been extinguished, a right of action will arise from the second, and the right of passage, and the use of the land, as well as the five aurei, can be exacted.
59. The Same, Digest, Book LXXXVIII.
Whenever anyone stipulates for oil to be delivered on a certain day, or under some condition, its value should be estimated on the day when the obligation becomes due, for then it can be demanded; otherwise, an advantage will be taken of the promisor.
60. Ulpianus, On the Edict, Book XX.
The same rule will apply if anyone stipulates for the delivery of a certain weight of oil at Capua, for an estimate should be made at the time when it can be claimed, which is as soon as a person can arrive at the place designated.
61. Julianus, On Urseius Per ox, Book II.
A stipulation formulated as follows, "Do you promise to pay me such-and-such a sum of money, if you do not appoint me your heir?" is void, as this stipulation is contrary to good morals.
62. The Same, On Minicius, Book II.
If a slave, after having been forbidden by his master, stipulates for the payment of money by another, he will still render the promisor liable to his master.
63. Africanus, Questions, Book VI.
Where anyone stipulates as follows, "If a ship should come from Asia, or Titius should be made Consul," no matter which condition is first fulfilled, the stipulation will become operative, but this will not be done a second time. For when one of two distinct conditions fails, the one which is fulfilled will necessarily render the stipulation operative.
64. The Same, Questions, Book VII.
The following stipulation was entered into: "If Titius should be made Consul, do you promise to pay ten sesterces annually, from
to-day?" The condition was fulfilled after three years; may it not reasonably be doubted whether proceedings could be instituted to compel payment for this time? The answer was that the stipulation was valid, and that payment should be understood to be due even for those years which had elapsed before the condition was fulfilled, as the meaning was, that if Titius should be made Consul, ten sesterces must be paid every year, and that even the time which had passed ought to be included.
65. Florentinus, Institutes, Book Vill.
Anything which you may add that is foreign to the stipulation and which has no reference to the present contract will be considered as superfluous, but will not vitiate the obligation; for instance, if you say, "I sing of arms and the man, I promise," the stipulation will be valid.
(1) When, however, any change is made in the designation of the property, or of the person concerned in the transaction, it is held that this will present no obstacle. For if he stipulates for denarii, you will be bound, if you promise aurei to the same amount. And where a slave stipulates for Lucius, his master, and you promise to pay Titius, who is the same person, you will be liable.
66. Paulus, On the Lex AZlia Sentia, Book III.
If a minor of twenty years of age stipulates with his debtor for the manumission of a slave, the execution of the stipulation should not be granted. If, however, the minor is twenty-five years of age, the manumission will not be prevented, because the law mentions a minor of that age.
67. Ulpianus, On the Edict, Book II.
The following stipulation, "Do you promise to guarantee the payment of ten thousand sesterces!" is valid.
(1) A person who stipulates that someone shall see that he is paid ten aurei cannot bring suit to recover that sum, as the promisor may be released by giving a solvent surety, as Labeo says, and Celsus also states in the Sixth Book of the Digest.
68. Paulus, On the Edict, Book II.
When I stipulate for a penalty if you do not lend me a sum of money, it is certain _ that the stipulation is valid. If, however, I should stipulate as follows, "Do you promise to lend me a certain sum of money?" the stipulation is vague, because what is to my interest is included therein,
69. Ulpianus, On the Edict, Book VII.
Where a man who is dead cannot be produced in court, the penalty for something which is impossible is not incurred; just as where someone, having stipulated to deliver Stichus, who is dead, provides for a penalty if he should not be delivered.
70. The Same, On the Edict, Book XI.
A woman who gave a dowry to my compatriot, Glabrio-Isidor, made him promise this dowry to a child if she should die during marriage, which she did. It was decided that an action under the stipulation would not lie, as a person unable to speak could not stipulate.
71. The Same, On the Edict, Book XIII.
Whenever we stipulate for a penalty in order that some act may be performed, we express ourselves properly as follows, "If it is not done in this way." If, however, the penalty is for some act not to be performed, we should express it as follows, "If anything contrary to this is done."
72. The Same, On the Edict, Book XX.
.Stipulations are not divided when they relate to things which are not susceptible of division; as, for example, rights of way of every description, the privilege of conducting water, and other servitudes. I think that the same rule will apply when anyone stipulates for the performance of some act, for instance, the delivery of land, the excavation of a ditch, the building of a house; or for certain services, or for anything else of this kind, as their division annuls the stipulation. Celsus, however, in the Thirty-Eighth Book of the Digest, says that it was the opinion of Tubero that where we stipulate for something to be done, and it is not done, a sum of money should be paid, and that even in this kind of a transaction the stipulation is divided; in accordance with which, Celsus says that it may be held that an action should be granted, dependent upon the circumstances of the case.
(1) When anyone stipulates as follows, "If the work is not completed before the Kalends of next March, do you promise to pay a sum of money equal to the value of the work?" the promise will not date from the day when the work was begun, but after the Kalends of March, because the person who makes the promise cannot be sued before the Kalends of March.
(2) It is clear that if anyone has stipulated to prop up a house, it will not be necessary to wait until the house falls down before bringing suit; nor, where a house is to be built, to wait until the time has passed in which it could be built; but as soon as the promisor is in default in building the house, then suit can be brought, as the time fixed for the performance of the obligation has elapsed.
73. Paulus, On the Edict, Book XXIV.
Sometimes the performance of an absolute stipulation is delayed by the nature of the thing itself; for instance, where someone has stipulated with reference to an unborn child, or future crops, or a house which is to be constructed, for then the right of action arises whenever delivery can be made, according to the nature of the property. Again, if anyone stipulates for payment to be made at Carthage,
while he is at Rome, the time is tacitly understood to be included which will be necessary to consume in order to go to Carthage. In like manner, if anyone stipulates with a freedman for his services, their time will not expire before they have been defined and not performed.
(1) When a slave belonging to an estate makes a stipulation it will have no force or effect, unless the estate has been entered upon, just as if it was made under a condition.
The same rule applies to a slave who is in the hands of the enemy.
(2) The promisor of Stichus, by tendering him after being in default, purges himself of the default. For it is certain that an exception on the ground of fraud will bar anyone who refuses to receive money tendered him.
74. Gaius, On the Provincial Edict, Book Vill.
Some stipulations are certain, and others are uncertain.
(1) A stipulation is certain when, by its mere mention, its nature and its amount are predisclosed, as for instance, ten aurei, the Tusculan Estate, the slave Stichus, a hundred measures of the best African wheat, a hundred jars of the best Campanian wine.
75. Ulpianus, On the Edict, Book XXII.
When, however, it is not apparent what the thing stipulated for is, and its nature or amount is undetermined, it must be said that the stipulation is uncertain.
(1) Therefore, when anyone stipulates for a tract of land without any specific designation, or for a slave in general terms, without mentioning his name, or for wine or wheat without stating its kind, he has included something uncertain in the obligation.
(2) This is so far true that if anyone stipulates as follows: "Do you promise to give me a hundred measures of good African wheat, and a hundred jars of good Companian wine?" he will be considered to have stipulated for articles which are uncertain, because something better than something good can be found, on which account the appellation "good" does not specify any certain article, as anything which is better than good is also itself good. But when anyone stipulates for "the best," he is understood to stipulate for an article whose excellence occupies the first rank, the result of which is that this designation refers to something which is certain.
(3) If anyone stipulates for the usufruct of a certain tract of land, he is understood to have inserted something vague into his obligation. This is the present practice.
(4) Where a person stipulates that any child which shall be born to the female slave, Arethusa, or any crops grown upon the Tusculan Estate shall be given to him, it is doubtful whether he shall be considered to have stipulated for some object which is-certain. It is, however, from the nature of the case, perfectly clear that this stipulation is for an uncertain object.
(5) But where anyone stipulates for the wine, the oil, or the wheat which is in a certain warehouse, he is understood to stipulate for something which is certain.
(6) When, however, someone stipulates with Titius as follows: "Do you promise to pay me what Seius owes me?" and also he who stipulates as follows, "Do you promise to pay me what you owe me, under your will?" he inserts something which is uncertain into his obligation, even if Seius owes a certain sum, or a certain sum is due him under the will, although these instances can hardly be distinguished from those which we have mentioned with reference to the wine, oil, or wheat stored in the warehouse.
On the other hand, the sureties are considered to have promised something certain, provided he for whom they bound themselves owes something that is certain; although they may also be asked, "Do you consider yourselves liable for this?"
(7) Any person who stipulates for something to be done, or not to be done, is considered to stipulate for what is uncertain: for something to be done, as, for instance, "the excavation of a ditch, the construction of a house, the delivery of free possession;" for something not to be done, for example, "that nothing shall be done by you to prevent me from walking and driving over your land, or that you will take no steps to prevent me from having the slave Eros."
(8) Where anyone stipulates for one thing or the other, for instance, for ten aurei or the slave Stichus, it is not unreasonable to ask whether he has included something which was certain or uncertain in his obligation. For these objects are specifically designated, and uncertainty only exists as to which of them should be delivered. Still he who has reserved the choice for himself, by adding the following words, "Whichever I may wish," may be considered to have stipulated for something which is certain, as he can maintain that he has the right to give only the slave, or the ten aurei. He, however, who does not reserve the choice for himself, stipulates for something which is uncertain.
(9) He who stipulates for the principal and any interest whatever is considered to have stipulated for something which is both certain and uncertain; and there are as many stipulations as there are things.
(10) The following stipulation, "Do you promise to transfer the Tusculan Estate?" shows that the object is certain, and contains the provision that the entire ownership of the property shall be conveyed to the stipulator in some way or other.
76. Paulus, On the Edict, Book XVIII.
When I stipulate for one thing or the other, whichever I may select, the choice is a personal one and therefore a selection of this kind attaches to a slave or a son under paternal control. If, however, the stipulator should die before making his choice, the obligation will pass-to the heirs.
(1) When we stipulate that you shall either give or do something, that which is owing at the present time is only included in the stipulation, and not what may be due hereafter, for instance, on judgments. Therefore, the words, "What you must pay," "either now, or within a certain time" are inserted into the stipulation. This is done because
a person who stipulates for you to pay something has reference to money which is already due. If, however, he wishes to designate the entire indebtedness, he says, "What you must pay either now or within a certain time."
77. The Same, On the Edict, Book LVIII.
Where money is promised upon a certain day, under a penalty, and the promisor dies before the day arrives, the penalty will be incurred, even though the estate may not have been accepted.
78. The Same, On the Edict, Book LXII.
If a son under paternal control, having stipulated under a condition, should be emancipated, and afterwards the condition should be fulfilled, his father will be entitled to the action; because, in stipulations, the time when we make the contract is considered.
(1) When we stipulate for a tract of land, the crops which are in existence at the time of the stipulation are not included.
79. Ulpianus, On the Edict, Book LXX.
If security is furnished to the agent of a person who was present, there is no doubt that an action on the stipulation will lie in favor of the principal.
80. The Same, On the Edict, Book LXXIV.
Whenever the language of a stipulation is ambiguous, it is most convenient to adopt the meaning which is favorable to the preservation of the property in question.
81. The Same, On the Edict, Book LXXVII.
Whenever anyone promises to produce another in court, and does not provide a penalty (for instance, if he promises to produce his slave, or a freeman), the question arises whether the stipulation becomes operative. Celsus says, that even when it was not stated in the stipulation that a penalty should be paid, if the person was not produced, it is understood that he who makes the promise will be liable for the interest of his adversary in having him produced. What Celsus says is true, for he who promises to produce another in court promises that he will take measures to do so.
(1) If an agent promises to produce anyone without a penalty, it can be maintained that he made the agreement, not for his own benefit, but for that of the person whom he represents; and it can be assured with still more reason that the stipulation of the agent includes the value of the property involved.
82. The Same, On the Edict, Book LXXVIII.
No one can make a valid stipulation for his own property, but he can make one for its price. I can legally stipulate that my own property shall be restored to me.
(1) If'the slave to be produced should die after the promisor is in default, the latter will still be liable, just as if the slave were
living. He is considered to be in default who prefers to go into court rather than to make restitution.
83. Paulus, On the Edict, Book LXXI1.
The contract is made between the stipulator and the promisor, and therefore where one of them promises for another that he will either pay something, or perform some act, he will not be liable, for each one must promise for himself. And he who asserts that there is no fraud connected with the transaction, and that there will be none, does not simply make a disavowal, but promises that he will see that no fraud is committed. The same rule applies to the following stipulations, namely, "that the party interested will be permitted to have the property," and that "Nothing will be done either by you or your heir to prevent this from taking place."
(1) If, when stipulating for Stichus, I have another slave in my mind, and you have still another, the transaction will be void. This was also the opinion of Aristo with reference to judgments. The better opinion, however, is that he shall be considered to be demanded whom the purchaser had in his mind; for while the validity of the stipulation depends upon the consent of both parties, a judgment is rendered against one of them without his consent, and therefore the plaintiff should rather be believed; otherwise the defendant will always deny that he consented.
(2) If, when I stipulate for either Stichus or Pamphilus, you promise to give me one of them, it is decided that you will not be liable, and that no answer was given to the interrogatory.
(3) The case of sums of money is different, as, for instance, "Do you promise to pay ten, or twenty aurei?" For, in this instance, although you promise ten, the answer was properly given, because a person is considered to have promised the smaller of two sums of
money.
(4) Again, if I stipulate for several things, for example, for Stichus and Pamphilus, although you may have promised one of them, you will be liable, for you are considered to have answered in one of these two stipulations.
(5) I cannot legally stipulate for anything which is sacred or religious, or which has been perpetually destined for the use of the public, as a market or a temple, or a man who is free; although what is sacred may become profane, and anything which has been destined for public service may revert to private uses, and a man who is free may become a slave. For when anyone promises that he will give something which is profane, or Stichus, he will be released from liability if the property becomes sacred, or Stichus obtains his freedom, without any act of his. Nor will these things again become the subject of the obligation, if by some law, the property should again become profane, and Stichus, from being free, should again be reduced to servitude; as what is the consideration of both the release and the obligation can neither be delivered nor not be delivered. For if the owner of a ship, who has promised it, takes it apart and rebuilds it
with the same materials, the obligation is renewed, because it is the same ship. Hence Pedius states that it can be said that if I stipulate for a hundred jars of wine, from a certain estate, I should wait until it is made, and if it was made and was then consumed without the fault of the promisor, I should again wait until more has been made, and can be delivered; and during these changes, the stipulation will either remain in abeyance or will become operative.
These cases, however, are dissimilar, for when a freeman is promised, it is not necessary to wait until tHe time of his servitude, as a stipulation of this kind with reference to a freeman should not be approved ; for example, "Do you promise to deliver So-and-So, when he becomes a slave?" and also, "Do you promise to transfer that ground when, from being sacred and religious, it becomes profane?" because such a stipulation does not include the obligation of the present time, and only such things as by their nature are possible can be introduced into an obligation. We are considered to stipulate not for a species but for a genus of wine; and, in this instance, the time is tacitly included.
A freeman belongs to a certain species, and it is not in accordance with either civil or natural law to expect an accident or adverse fortune to happen to a man who is free, for we very properly transact our affairs with reference to such property as can immediately be subjected to our use and ownership.
If a ship is taken apart with the intention of using its planks for some other purpose, although the owner may change his mind, it must be said that the original vessel has been destroyed, and that this is a different one. If, however, all of the planks have been removed for the purpose of repairing the ship, the original vessel is not considered to have been destroyed, and when the materials are put together again, it again becomes the same; just as where beams are taken from a house with the intention of being replaced, they continue to belong to the house. If, however, the house is taken down to the level of the ground, even though the same materials are replaced, it will be a different building.
This discussion has reference to praetorian stipulations by which provision is made for the restoration of property, and the question arises whether it is the same property.
(6) If I have stipulated for something under a lucrative title, and I obtain it by such a title, the stipulation is extinguished. Where I become the heir, the stipulation is extinguished by the ownership. If, however, I being the heir, the deceased charged me with a legacy of the property, an action can be brought under the stipulation.
The same rule applies if the legacy was bequeathed conditionally, because if the debtor himself should bequeath the property under a condition, he will not be released. If, however, the condition should not be complied with, and the property should remain in the possession of the heir, there would be no further ground for the claim.
(7) If I stipulate for Stichus, who is dead, even though this is the case, and a personal action for his recovery can be brought, just as
can be done from a thief, Sabinus says that I have made a valid stipulation. But where a stipulation is made under other circumstances, it will be void; for even though the slave may be due, the promisor is released from liability by his death. He would therefore hold the same opinion if I should stipulate for the dead slave, when the debtor was in default.
(8) Where anyone promises to produce a female slave, who is pregnant, in a certain place, although he may produce her without her child, he is understood to produce her in the same condition.
84. The Same, On the Edict, Book LXXIV.
If I stipulate for the construction of a house, and the time in which
you could build it should elapse, so long as I do not bring the case
into court, it is established that you will be released if you build the
house. If, however, I have already brought suit, it will be of no
• advantage to you if you build it.
85. The Same, On the Edict, Book LXXV.
In the discharge of an obligation, it must be remembered that there are four things to be considered: for sometimes we can recover something from each individual heir; and sometimes it is necessary to bring suit for the whole property, which cannot be divided; and again, an action can be brought for a part of the property, while the debt cannot be paid unless in its entirety; and there are instances where an action must be brought for all the property although the claim may admit of a division of payment.
(1) The first case has reference to the promisor of a certain sum of money, for both the demand and the payment depend upon the hereditary shares of the estate.
(2) The second case applies to some work which the testator ordered to be done. All the heirs are liable conjointly, because the effect of the work cannot be divided into separate parts.
(3) If I should stipulate that nothing shall be done either by you or your heir to prevent me from using a right of way, and that, if you should do so, you shall pay a specified sum of money, and one of several heirs of the promisor prevents me from using the right of way, the opinion of the best authorities is that all the heirs will be bound by the act of one of them, because, although I am prevented by one alone, I am still not partially prevented, but the others can be indemnified by an action in partition.
(4) The claim can be demanded in part, where all must be paid, as, for instance, where I stipulate for a slave who is not specifically designated, for the claim is divided, but it cannot be discharged except in full; otherwise this might be effected by the transfer of parts of different slaves, which the deceased could not have done, to prevent me from obtaining what I stipulated for.
The same rule will apply, if anyone should promise ten thousand sesterces or a slave.
(5) An action can be brought for the entire amount, and payment of a part will bring about a release, when we institute proceedings on account of eviction; for the heirs of the vendor should all be notified together, and all of them must defend the case, and if one of them does not do so, all will be liable, but each one will only be required to pay in proportion to his share of the estate.
(6) Likewise, if a stipulation was made as follows, "If the Titian Estate is not transferred, do you promise to pay a hundred aurei?" the penalty of a hundred aurei will not be incurred, unless the entire estate is transferred, and it is of no advantage to convey the remaining shares of the land, if one of the parties refuses to convey his share; just as the payment of a part of a debt to a creditor is not sufficient to release the property pledged.
(7) If anyone, who will become liable under a certain condition, prevents the condition from being fulfilled, he will, nevertheless, be liable.
86. Ulpianus, On the Edict, Book LXXIX.
When it is said that there are as many stipulations as there are things, this only applies where the things are mentioned in the stipulation, but if they are not enumerated, there is but one stipulation.
87. Paulus, On the Edict, Book LXXV.
No one can legally stipulate for something which is his, in the event that it will belong to him.
, 88. The Same, On Plautius, Book VI.
The default of the principal debtor also injures the surety, but if the surety should offer a slave, and the principal debtor is in default, and the slave should die, relief must be granted the surety. If, however, the surety should kill the slave, the principal debtor will be released, but an action based on the stipulation can be brought against the surety.
89. The Same, On Plautius, Book IX.
If I rent land to a tenant for five years, and, after three years have elapsed I stipulate as follows, "Do you promise all that you are obliged to pay, or do?" nothing more is embraced in this stipulation than what should be done at that time; for in making a stipulation nothing is included but what is already due. If, however, it should be added, "What you will be obliged to pay, or do," the obligation will have reference to the future.
90. Pomponius, On Plautius, Book III.
When we stipulate that if the principal is not paid, a penalty shall be due every month, instead of the legal interest, even though a judgment may -be obtained for the principal, the penalty will still continue to increase, because it is certain that the principal has not been paid.
91. Paulus, On Plautius, Book XVII.
If I stipulate for a slave, and he should die without anyone being in default, even if the promisor should kill him, legal proceedings may be instituted. Where, however, the promisor neglects him when he is ill, will he be liable? When we consider whether this is the case, where an action is brought to recover a slave, and he has been neglected by the person who has possession of him, the latter will be liable on the ground of negligence; just as where anyone who has promised to deliver the slave to whom the stipulation has reference is presumed to be negligent in doing something, and not for refraining from doing something.
The latter opinion should be approved, because he who promises to pay is responsible for payment, and not for the performance of some specific act.
(1) If, however, the property is in existence, but cannot be delivered, as, for instance, a tract of land which has become religious, or sacred, or a slave who has been manumitted, or even captured by the enemy, negligence is determined as follows: if the property belonged to the promisor at the time of the stipulation, or became his afterwards, and any of the occurrences above mentioned took place, he will still be liable. The same thing will occur if this happened through the agency of another, after the slave had been alienated by the promisor. Where, however, the slave belonged to someone else, and something of this kind occurred through the agency of another, the promisor will not be liable, because he did nothing, unless something of this kind took place after he delayed making payment. Julianus accepts this distinction.
Again, if a slave who belonged to the promisor was taken from him for the reason that he was to be free under a certain condition, he should be considered to be in the same position as if he had promised the slave of another, because the slave ceased to belong to him without any act on his part.
(2) The question is asked if, not being aware that he owed the slave, he should kill him, will he be liable? Julianus thinks that this is the case where one, not knowing that he was charged by a codicil to deliver a slave, manumits him.
(3) In the next place, let us consider the rule established by the ancients, that is to say, whenever the debtor is guilty of negligence, the obligation will continue to exist. How should this be understood? And, indeed, if the promisor acts in such a manner as to render himself unable to pay, the constitution becomes easy of comprehension. Where, however, he is only in default, a doubt may arise whether, if he should not afterwards delay, the former default will be disposed of. Celsus says, that he who is in default in delivering Stichus, whom he promised, can clear himself of the default by subsequently tendering the slave; for this is a question having reference to what is proper and equitable, and, in a case of this kind, pernicious errors are frequently, committed in relying too much on the authority of the science of the law. This opinion is probably correct, and is adopted by Julianus.
For when the question of damages arises, and the case of both parties is the same, why should not the position of him who holds the property be preferable to that of him who attempts to obtain it?
(4) Now let us see to what persons this constitution applies. There are two things to take into account: first, we must inquire what persons are responsible for the continuance of the obligation; and second, for whom they cause it to be continued. The principal debtor certainly perpetuates the obligation, but is there any doubt that the other debtors also perpetuate it? It is the opinion of Pomponius that they do, for why should a surety extinguish his obligation by his own act? This opinion is correct, therefore the obligation is perpetuated both in their persons and in those of their successors, as well as in those of their accessories, that is to say, their sureties; for the reason that they have given their promise with reference to it under all circumstances.
(5) Let us see whether a son under paternal control, who made a promise by the order of his father, can prolong the obligation of the latter by killing the slave. Pomponius thinks that he can do so, because we understand the person who gives the order to be an accessory.
(6) The effect of this regulation is, that the slave can still be claimed, but it is held that a release may be granted, or a surety be accepted on account of the obligation. There is some doubt as to whether this obligation can be renewed, for the reason that we cannot stipulate for a slave who is not in existence, or for money which is not due. I think that a renewal can be made if it is agreed upon between the parties; which is also the opinion of Julianus.
92. The Same, On Plautius, Book XVIII.
If I stipulate as follows, "Do you promise that nothing will be done by you to prevent me, or my heir, from removing my vintage?" the action will also be granted to my heir.
93. The Same, On Vitellius, Book III.
If I stipulate as follows: "Do you promise that you will do nothing to prevent me from taking one of the slaves which you have?" I will be entitled to the choice.
94. Marcellus, Digest, Book III.
A man stipulated for wheat to be delivered to him. This is a question of fact, and not of law. Therefore, if he had a certain kind of wheat in his mind, that is to say, wheat of a certain quality, or of a certain quantity, this is considered to have been stated. Otherwise, if he intended to designate the kind of wheat and the amount, and did not do so, he is considered not to have stipulated for anything-, and hence the other party is not bound to deliver a single measure of wheat.
95. The Same, Digest, Book V.
Where anyone stipulates for the construction of a house, he only acquires the obligation when it is evident in what place he desired the house to be built, and if he is interested in having it built there.
96. The Same, Digest, Book XII.
Where anyone owes me a slave under the terms of a stipulation and he surprises him in the act of committing a crime, and kills him with impunity, a praetorian action cannot be brought against him.
97. Celsus, Digest, Book XXVI.
If I stipulate as follows, "Will you appear in court? And if you do not do so, will you deliver a centaur?" the stipulation will be the same as if I had merely promised to appear in court.
(1) I can legally stipulate with you as follows: "Do you promise that you will pay in the name of Titius?" For this is not similar to the stipulation that "Titius will give something," but under it I can bring an action, if I have any interest; and therefore if Titius is solvent, I can recover nothing under this stipulation, for what interest have I in inducing you to do something, while if you do not do it, I shall be equally sure of my money?
(2) "Do you promise to pay me ten aurei, if I marry you?" I think that, in this case, after proper cause has been shown, the action can be refused; still, there is not infrequently ground for a stipulation
of this kind.
The same rule applies where a husband stipulates with his wife in this way, when there is no reference to a dowry.
98. Marcellus, Digest, Book XX.
I think that property which belongs to me can be stipulated for under a condition, as I can stipulate for a right of way to a tract of land, although the land may not belong to me at the time. If, however, this should not be the case, and I stipulate for land belonging to another, under a condition, and the land afterwards becomes mine by a lucrative title, the stipulation is immediately annulled. If the owner of the land stipulates for a right of way under a condition, the stipulation will be annulled as soon as the land is alienated; and this is certainly the case in the opinion of those authorities who hold that obligations which have been legally contracted are extinguished, when the conditions under which they exist become such that they could not have been established under them.
.(1) The question arises when suit can be brought under the following stipulation: "Do you promise to prop up such-and-such a house?" It is not necessary to wait until the house falls down, for it is to the interest of the stipulator that it should be propped up, rather than that it should not be; still proceedings cannot properly be instituted, if sufficient time has not elapsed for the person to prop' it up who intends to do so.
99. Celsus, Digest, Book XXXVIII.
Whatever is required to render an obligation binding is understood to have been omitted, if it is not plainly expressed in words; and we almost always interpret it in favor of the promisor, because the stipulator was free to give a broader meaning to the terms; but, on the other hand, the promisor should not be heard if it is to his interest that the agreement should be considered to have reference to certain vessels, or to certain slaves.
(1) If I stipulate as follows, "Do you promise to pay if you do not ascend to the Capitol within two years?" I cannot legally bring suit before the expiration of the two years; for although these words are ambiguous, still they are understood to have this meaning, "If it is absolutely true that you did not ascend to the Capitol."
100. Modestinus, Rules, Book Vill.
A condition which has reference to the past, as well as to the present time, either annuls the obligation immediately, or does not, under any circumstances, defer its performance.
101. The Same, On Prescriptions, Book IV.
Persons who have arrived at the age of puberty can bind themselves under a stipulation without their curators.
102. The Same, Opinions, Book V.
Vendors furnished security against eviction to a purchaser to the extent of his interest, and they also specially promised that they would be responsible for all expenses which might be incurred by the purchaser, who was the stipulator, if the matter should come into court. After the death of the purchaser, one of the vendors brought suit, alleging that the price was due to him; and the heirs of the purchaser, who proved that the price had been paid, demanded, under the terms of the stipulation, that they should be reimbursed for the expenses incurred in defending the case. Modestinus gave it as his opinion that if the vendors promised to pay the expenses incurred in an action brought to determine the ownership of the property, such expenses could, by no means, be collected under the stipulation where one of the vendors sued to recover the price which had already been paid.
103. The Same, Pandects, Book V.
A freeman cannot be the object of a stipulation, for demand cannot be made for his delivery, nor can his appraised value be paid, any more than if a person should stipulate for a dead slave, or for land in the hands of the enemy.
104. Javolenus, On Cassius, Book XL
Where a slave has agreed to pay a sum of money for his freedom, and has given a surety for that purpose, even though he may be manumitted by another person, the surety will, nevertheless, legally
be bound, for the reason that the inquiry was not made to ascertain by whom he was manumitted, but merely to learn whether he has been manumitted.
105. The Same, Epistles, Book II.
I stipulated that either Damas or Eros should be given to me. When you gave me Damas, I was in default in receiving him. Damas is dead. Do you think that I am entitled to an action under the stipulation? The answer was, that according to the opinion of Mas-surius Sabinus, I think that you cannot bring suit under the stipulation; for he very properly held that if the debtor was not in default in paying what he owed, he would immediately be released from liability.
106. The Same, Epistles, Book VI.
When anyone stipulates for one of several tracts of land, which bear the same name, and the said tract has no specified designation, he stipulates for something which is uncertain; that is to say, he stipulates for the tract of land which the promisor may choose to give him. The will of the promisor, however, is in abeyance, .until what has been promised is delivered.
107. The Same, Epistles, Book Vill.
I ask whether you think the following stipulation is dishonorable, or not. A natural father appointed, as his heir, his son, whom Titius had adopted under the condition that he should be released from paternal control. His adoptive father refused to emancipate him, unless he was willing to stipulate for the payment of a sum of money by a third party in consideration of his manumission. After his emanici-pation, the son entered upon the estate, and then the father, under the terms of the stipulation above mentioned, demanded the money. The answer was, I do not think that the ground of this stipulation is dishonorable, as otherwise he would not have emancipated his son. Nor can the terms of the stipulation be considered unjust, if the adoptive father desired to obtain some advantage, on account of which his son would have more esteem for him after his emancipation.
108. The Same, Epistles, Book X.
I stipulated with Titius as follows, "If some woman marries me, do you promise to give me ten aurei by way of dowry?" The question arose whether such a stipulation was valid. The answer was that if the dowry was promised to me, stipulating as follows: "Do you promise to pay me ten aurei by way of dowry, no matter what woman I marry?" there is no reason why the money should not be due, if the condition was complied with. For when a condition dependent upon the act of some person who is uncertain can create an obligation, as, for instance, "Do you promise to pay ten aurei if anyone ascends to the Capitol?" or, "If anyone demands ten aurei of me, do you promise to pay as many?" there is no reason why the same answer should not be given as in the case where a dowry was promised.
(1) No promise is valid which depends upon the will of the person who makes it.
109. Pomponius, On Quintus Mucius, Book III.
If I stipulate as follows, "Will you pay me ten, or fifteen aurei?" ten will be due. Again if I stipulate as follows, "Will you pay after one, or two years?" the money will be due after two years; because in stipulations, the smallest amount of money, and the longest period of time are considered to be inserted in the obligation.
110. The Same, On Quintus Mucius, Book IV.
If I stipulate for ten aurei for myself and Titius, when I am not under his control, ten aurei will not be due to me, but only five, as the other half will be deducted; for when I have improperly stipulated for the benefit of a stranger my share will not be increased to that extent.
(1) If I stipulate with you as follows, "Do you promise to give me any women's clothing which belongs to you ?" the intention of the stipulator rather than that of the promisor should be taken into account, and attention should be paid to whatever was in existence, and not to what the promisor had in his mind at the time. Therefore, if the promisor was accustomed to wear a woman's garment, it will still be due.
111. The Same, On Quintus Mucius, Book V.
If I stipulate that you shall do nothing to prevent me from making use of a certain house, and you do not prevent me, but prevent my wife from doing so; or, on the other hand, if my wife should make the stipulation, and you should prevent me from making use of the house, does the stipulation become operative? These words should be understood in their broadest signification; for even if I stipulate that you shall do nothing to prevent me from making use of any kind of a right of way, and you do not prevent me from doing so, but interfere with another who enters in my name, it must be held that the stipulation becomes operative.
112. The Same, On Quintus Mucius, Book XV.
If anyone stipulates for "Stichus or Pamphilus, whichever one he pleases," he can demand either one that he selects, and he alone will be included in the obligation. If, however, it is asked whether he can change his mind, and demand the other, the terms of the stipulation must be examined in order to ascertain whether its terms are expressed as follows: "The one whom I would have chosen," or "The one whom I may choose." If the first of these was employed, the stipulator cannot change his mind after he has once made his selection ; but if the words admit of discussion, and are, "The one whom I may choose," he is at liberty to change his mind until he has made his final decision.
(1) If anyone stipulates as follows, "Will you give me security for a hundred aurei?" and he gives a surety for this amount; Proculus
says that the interest of the stipulator is always considered in the agreement for security, as sometimes this extends to the entire principal, as, for instance, where the promisor is not solvent, and sometimes to less, where the debtor is only partly solvent; and again it amounts to nothing, if the debtor is so wealthy that we have no interest in requiring security from him; but in estimating the solvency of the persons, their integrity, rather than the value of their property, should be taken into consideration.
113. Proculus, Epistles, Book II.
When I stipulate for myself as follows: "Proculus, if the work is not completed, as I desire it to be, before the Kalends of June, do you promise to pay such-and-such a sum by way of penalty?" and I extend the time; do you think that it may be said that the work has not been done, as I wished it to be, before the Kalends of June, when I, myself, voluntarily gave more time for its completion?
Proculus replied that it is not without reason that a distinction should be made whether the promisor was in default in not finishing ' the work before the Kalends of June, as was agreed upon in the stipulation; or, whether, as the work could not be completed before that date, the stipulator extended the time to the Kalends of August. For if the stipulator extended the time when the work could not be completed before the Kalends of June, I think that the penalty would attach; for it makes no difference if some time had passed before the Kalends of June, during which the stipulator did not desire that the work should be finished before that date; that is to say, that he did not expect something to be done which could not be done.
Or, if this opinion is incorrect, even if the stipulator should die before the Kalends of June, the penalty will not be incurred; as being dead, he could not signify his wishes, and some time would remain after his death for the completion of the work. And I am almost inclined to believe that the penalty would be incurred, even if enough time to complete the work was not left before the Kalends of June.
(1) When anyone sells something, and promises to furnish sureties to the purchaser, and guarantees the property sold to be free from encumbrance, and the purchaser desires the property to be free from all liens, and he who promised that it should be under the stipulation is in default; I ask, what is the law? Proculus answered that the vendor will be responsible to the extent of the plaintiff's interest, in accordance with the amount of damages assessed in court.
114. Ulpianus, On Sabinus, Book XVII.
If I stipulate for the transfer of a specified tract of land, upon a certain day, and the promisor is responsible for it not having been transferred on that day, I can recover damages to the amount of my interest in not having the delay take place.
115. Papinianus, Questions, Book II.
I stipulated as follows: "Do you promise to appear in a certain place, and if you do not do so, to pay fifty aurei?" If, through mis-
take, the time was omitted in the stipulation, when it was agreed that you should appear on a certain day, the stipulation will be imperfect. It is just the same as if something which could be weighed, counted, or measured had been stipulated for by me, without adding the weight, amount, or measure; or where a house was to be built, and the place was not mentioned; or a tract of land was conveyed, without giving its description.
If, however, it was understood from the beginning that you might appear on any day whatsoever, and, if you did not do so, that you should pay a specified sum of money, this stipulation would be valid, just as any other made under a condition, and it would not become operative before it was established that the person who made the promise could not appear.
(1) If, however, I should stipulate as follows, "Do you promise to pay a hundred aurei, if you do not ascend to the Capitol, or go to Alexandria?" the stipulation does not immediately become operative, even though you may be able to ascend to the Capitol, or to go to Alexandria; but only when it becomes certain that you can neither ascend to the Capitol, or go to Alexandria.
(2) Again, if anyone stipulates as follows, "Do you promise to pay a hundred aurei if you do not deliver Pamphilus?" Pegasus says that the stipulation does not take effect before it becomes impossible for Pamphilus to be delivered. Sabinus, however, thinks that, according to the intention of the contracting parties, an action can be brought after the slave could have been delivered; but that proceedings cannot be begun under the stipulation, as long as it was not the fault of the promisor that he was not delivered. He sustains this opinion by giving the example of a legacy left for maintenance. For Mucius stated that if an heir was able to furnish maintenance, and did not do so, he would immediately become liable for the money bequeathed. This rule was adopted because of its utility, as well as on account of the wishes of the deceased, and the nature of the thing itself.
Hence the opinion of Sabinus may be adopted, if the stipulation does not begin with a condition, for instance, "Do you promise to pay such-and-such a sum, if you do not deliver Pamphilus?" But what if the stipulation was expressed as follows, "Do you promise to deliver Pamphilus, and if you do not do so, do you promise to pay such-and-such a sum?" This undoubtedly would be true, if it was proved to be the intention that if the slave was not delivered, both the slave and the money would be due. If, however, it was promised that the money alone would be due if the slave was not delivered, the same opinion could be maintained; since it was established that the intention of the parties was that the slave should be delivered, or the money paid.
116. The Same, Questions, Book IV.
If, after having stipulated for ten aurei from Titius, you stipulate with Msevius for all that you cannot obtain from Titius, there is no
doubt that Msevius can be compelled to assume responsibility for the payment of the entire amount. If, however, you bring an action against Titius for the ten aurei, Msevius will not be released from liability until Titius has paid the judgment.
Paulus says that Maevius and Titius are not liable under the same obligation, but that Msevius is liable on condition that you cannot collect the amount from Titius. Therefore, after Titius has been sued, Msevius will not be discharged from liability, because it is uncertain whether he will owe the money or not; and if Titius should pay, Msevius will not be released, as he was not liable; for the condition upon which the stipulation was dependent has failed; and Msevius cannot properly be sued, while the condition of the stipulation is still pending, for nothing legally can be demanded of him until Titius has been exhausted.
117. The Same, Questions, Book XII.
If, after having stipulated for a hundred slaves to be chosen by myself and my heir, I leave two heirs before I make my choice, the stipulation will be divided by the number. It will, however, be different if the heir should succeed after the slaves have been chosen.
118. The Same, Questions, Book XXVII.
A man who is free and who is serving me in good faith as a slave makes a promise to me as stipulator; and this stipulation is almost entirely valid in every respect, even though he may promise me something which is my own property. For what else can be said to show that a freeman is not liable? And still, if I promise the same person as a stipulator, under similar circumstances, I will be liable. For how will he be entitled to an action against me which he would have acquired for my benefit, if he had stipulated with a third party? Therefore, in this respect, he should be compared to a slave in whom someone enjoys the usufruct, or to the slave of another who is serving in good faith. But when a slave promises the usufructuary, or the slave of another who is serving a bona fide purchaser in good faith, with reference to property which belongs to either of them, an action De peculia will not be granted against the master; because, in cases of this kind, such persons are considered as masters.
(1) "Do you promise to pay ten aurei to-day?" I said that the money could be demanded on this very day, and that the claimant could not be held to have proceeded too soon, even if the day of the stipulation had not ended, which would be the law under other circumstances. For what ought not to be demanded within a certain time cannot be paid within that time; and in the case stated the day is considered to be inserted, not for the purpose of deferring the action, but in order to show that it can be begun at once.
(2) "Do you promise to pay ten aurei to me, or to Titius, whichever one I may choose?" So far as payment to me is concerned, the. stipulation is certain, but with reference to payment to him it is uncertain. For suppose that it is to my interest that payment should
be made to Titius, rather than to myself, as I promised a penalty if payment is not made to Titius?
119. The Same, Questions, Book XXXVI.
The clause for the prevention of fraud which is placed at the end of a stipulation does not relate to those parts of the agreement concerning which provision is expressly made.
120. The Same, Questions, Book XXXVII.
If I stipulate as follows, "Do you promise to pay this sum of a hundred aurei?" although the clause, "Provided there are a hundred aurei," is understood, this addition does not establish a condition, for if there are not a hundred aurei, the stipulation is void; and it has been decided that a clause which does not refer to the future, but to the present time, is not conditional, even though the contracting parties may be ignorant of the truth of the matter.
121. The Same, Opinions, Book XL
Where both parties to the stipulation agree to the provision that no fraud has been, or shall be committed in the transaction, suit for an uncertain amount can be brought, in order that the stipulation may be expressed in a more proper manner.
(1) A woman who was living in the same house with a man with the intention of marrying him stipulated with him for the payment of two hundred aurei, if, during the time of the marriage, he resumed his custom of keeping a concubine. I gave it as my opinion that there was no reason why the woman could not recover the money under the stipulation, if the condition was fulfilled, as the agreement was in accordance with good morals.
(2) A man, having been banished to an island, made a promise, the stipulation being expressed as follows, "Do you promise to pay when you die?" the stipulation will not become operative unless the promisor should die.
(3) A stipulation with reference to fraud will bind the heir of him who makes the promise by the mere act of the latter; just as is the case in other contracts, for instance, those of mandate and deposit.
122. Scstvola, Digest, Book XXVIII.
A man who borrowed money at Rome which was to be paid within three months in a distant province promised the stipulator to pay it there; and, a few days afterwards, told his creditor in the presence of witnesses that he was ready to pay the money at Rome, if the amount which he had paid to him as interest was deducted. The question arose if, after having tendered the entire amount to which he was liable under the stipulation, it could be demanded of him, when it became due, in the place in which he promised to pay it. The answer was that the stipulator could demand it on the day when it became due, and at the place where he agreed it should be paid.
(1) Callimachus borrowed money from Stichus, the slave of Seius, in the province of Syria, for the purpose of being used in
maritime trade from the city of Berytus to Brindisi. The loan was for the two hundred days required for the voyage, was secured by the pledge and hypothecation of merchandise purchased at Berytus, to be taken to Brindisi, and also included that which was to be purchased at Brindisi, and conveyed to Berytus; and it was agreed between the parties that when Callimachus arrived at Brindisi, he should depart from there by sea, before the next Ides of September, with the other merchandise which he had purchased and placed on board the ship; or if, before the time above mentioned, he did not purchase the merchandise or leave the said city, that he would immediately repay the entire amount, just as if the voyage had been completed; and that he would pay to those demanding the money all the expenses incurred in taking it to Rome; and Callimachus promised Stichus, the slave of Lucius Titius, as stipulator, to pay and perform all this faithfully. And when, in accordance with the •agreement, before the above-mentioned ides, the merchandise had been placed on board the ship, Callimachus embarked with Eros, the fellow-slave of Stichus, with the intention of returning to the province of Syria; and the ship having been lost, and Callimachus, as had been agreed, having placed the merchandise on the ship leaving Berytus at the time when he ought to have repaid the money to be taken to Rome, the question arose whether he could profit by the consent of Eros, who had been with him, and to whom his master had neither permitted, nor ordered anything more to be done with reference to the money, after the day which was agreed upon for its payment, than to take it to Rome as soon as he had received it; and whether Callimachus would still be liable in an action on the stipulation for the delivery of the money to the master of Stichus. The answer was that, according to the facts stated, he would be liable.
I also ask, as Callimachus had sailed after the day above mentioned, with the consent of Eros, the said slave, whether the latter could deprive his master of the right of action after it once had been acquired by him. The answer was that he could not do so, but that there would be ground for an exception, if it had been left to the judgment of the slave whether the money should be paid at any time, and at any place that he might select.
(2) Flavius Hermes donated the slave Stichus, in order that he might be manumitted, and made the following stipulation with reference to him: "If the said slave, Stichus, whom I have this day delivered to you as a donation for the purpose of his manumission, should not be manumitted, and set free in proper form by you and your heir (provided this is not prevented by some fraud on my part), Flavius Hermes has stipulated for fifty aurei to be paid by way of penalty, and Claudius has promised to pay this sum." I asked whether Flavius Hermes can bring an action against Claudius for the freedom of Stichus. The answer was that there is nothing in the facts stated to prevent him from doing so.
I also ask, if the heir of Flavius Hermes wished to collect the penalty from the heir of Claudius, whether the latter could give
Stichus his freedom, in order to be released from the penalty. The answer was that he could. I also ask, if the heir of Flavius Hermes did not wish to bring suit against the heir of Claudius for the reason above stated, whether the freedom to which Stichus was entitled in accordance with the agreement entered into by Hermes and Claudius, as evidenced by the above-mentioned stipulation, should still be granted by the heir of Claudius. The answer was that it ought to be done.
(3) Certain co-heirs, having divided the lands of an estate, left one tract to be held in common, under the condition that if anyone wished to alienate his share of the same he should sell it either to his co-heirs or the successor of the latter, for the sum of a hundred and twenty-five aurei. The parties mutually stipulated for the payment of a hundred aurei by way of penalty, if any of them should violate this contract. A woman who was one of the co-heirs, having frequently notified the guardians of the children of her co-heir, in the presence of witnesses, and requested them to either purchase or sell the said tract of land, in accordance with the agreement, and the guardians having done nothing, I ask whether, if the woman should sell the land to a stranger, the penalty of a hundred aurei could be collected from her. The answer was that, in accordance with the facts stated, she could, under such circumstances, interpose an exception on the ground of bad faith.
(4) Agerius, a son under paternal control, promised the slave of Publius Msevius, as the stipulator, that he would pay him whatever it might be decided that his father owed Publius Msevius. The question arose how much he would owe, his father having died before the amount was ascertained; and, if suit was brought against his heir, or some other successor, and a decision rendered with respect to the indebtedness, whether Agerius would be liable. The answer was, that if the condition was not fulfilled, the stipulation would not become operative.
(5) Seia, the heir of a single guardian, having made an agreement based on a settlement with the heir of a female ward, paid the greater part of the debt, and gave security for the remainder; the said heir, however, immediately refused to abide by the agreement, brought an action on guardianship, and, having lost his case, appealed to a competent judge, and afterwards from him to the Emperor; and this appeal was decided to have been taken on insufficient grounds. As the heir of the ward was in default in receiving the money mentioned in the stipulation from the heir of the guardian, having never even demanded it, the question arose whether interest would now be due from the heir of the guardian. The answer was, that if Seia had not been in default in tendering the money provided for by the stipulation, interest would not legally be due.
(6) Two brothers divided an estate between them, and mutually obligated-themselves to do nothing against the division, and if either of them violated the agreement, that he would pay a penalty to the
other. After the death of one of them, the survivor brought an action for the estate against his heirs, alleging that it was due to him under the terms of a trust bequeathed by his father; and judgment was rendered against him on the ground that he had made a compromise with reference to the matter. The question arose whether the penalty was incurred. The answer was that, in accordance with the facts stated, the penalty would be due.
PART III. CONCERNING VERBAL OBLIGATIONS.
123. Papinianus, Definitions, Book I.
A stipulation entered into concerning a crime which has been Or is to be committed, is void from the beginning.
124. The Same, Definitions, Book II.
"Do you promise to build a house in such-and-such a place within two years?" The stipulation will not become operative before the end of two years, even though the person making the promise should not build it, and sufficient time does not remain in which it can be completed; for the provisions of the stipulation, the time of which was fixed in the beginning, cannot be changed by something which may afterwards occur, and this was inserted in the agreement for the purpose of compelling someone to appear in court; that is to say, the stipulation will not become operative before the prescribed date, even if it is certain that there is not sufficient time remaining to comply with the contract.
125. Paulus, Questions, Book II.
When we stipulate as follows, "Whatever you must give, or pay, or do," nothing more is included in such a stipulation than what is due at the present time, for it does not provide for anything else.
126. The Same, Questions, Book HI.
Where I stipulate as follows, "If Titius should become Consul, do you then promise from that day to pay ten aurei every year?" If the condition is fulfilled after three years, thirty aurei can be demanded.
(1) Titius stipulated with Msevius for a tract of land, with the reservation of its usufruct, and also for the usufruct of the same land. There are two stipulations, and there is less in the usufruct which anyone promises by itself than there is in that which accompanies the ownership. Finally, if the promisor should give the usufruct, and the stipulator should lose it by non-user, and afterwards convey the land with the reservation of the usufruct, he will be released from liability.
The same thing, however, does not happen in the case of one who promises the land without any reservation, and conveys the usufruct, and afterwards, having lost the usufruct, conveys the ownership of the land without it; for, in the first instance, he will be released by the transfer of the usufruct, but, in the second, he will be discharged from no part of the obligation, unless he conveys the land, with all the rights attaching thereto, to the stipulator.
(2) "I, Chrysogonus, the slave of Flavius Candidus, and his agent, have stated in writing, in the presence of my master, who has also subscribed and sealed this instrument, that, having received a thousand denarii as a loan from Julius Zosa, the agent of Julius Quin-tillianus, who is absent, the said Zosa, freedman and agent of the said Quintillianus has stipulated that the said money shall be paid to Quintillianus, or his heir, entitled to the same, upon the next Kalends of November; and my master, Candidus, has promised, and Julius Zosa has stipulated, that if the money is not paid on the day aforesaid, interest shall be due at the rate of eight denarii for the time during which the sum remains unpaid. Flavius Candidus, my master, has given this promise, and has signed this instrument."
I gave it as my opinion that we cannot acquire any obligation by means of any free person who is not subject to our authority, or does not serve us in good faith as a slave. It is clear that if a freeman pays a sum of money in our name, which either belongs to him, or to us, in order that it may be paid to us, he acquires for us the obligation of a loan; but what a freedman stipulates to be paid to his patron is void, so that he does not benefit a person who is absent and is intended to be made the principal creditor, even to the extent of receiving payment.
It remains to be ascertained whether, after the money has been counted, the contracting party can collect the sum which was lent; for whenever we loan money, and stipulate for the same money, two obligations are not created, but only a single verbal one. It is clear that if the coins were counted first, and the stipulation followed, it cannot be said that the natural obligation was departed from. .Where the stipulation follows, and interest is agreed upon without mentioning the name of the person entitled to it, this has not the same defect; but it must not be considered to the detriment of the patron to hold that the freedman has stipulated for interest for the benefit of him who is entitled to the principal; and hence the stipulation for interest will profit the freedman, but he will be compelled to surrender it to his patron; for, as a rule, in stipulations the words from which the obligation arises should be considered. Rarely does the intention appear to include a time or condition, and it never includes a person, unless this is expressly stated.
(3) If I stipulate for you to appear in court, and, if you do not do so, that you shall give something which is impossible for the promisor-to furnish; the second stipulation is omitted, and the first one remains valid, and it will be just the same as if I had merely stipulated for you to appear in court.
127. Scsevola, Questions, Book V.
If a ward, without the authority of his guardian, promises Stichus to give a surety, and the slave dies after the ward has been in default, the surety will not be liable on this account; for no default can be understood to take place where no right to make a demand exists. The surety, however, will be liable to the extent that he can be sued during the lifetime of the slave, or afterwards, if he himself should be in default.
128. Paulus, Questions, Book X.
When there are two contracting parties, and one of them stipulates for something that is valid, and the other for something that is void, payment cannot properly be made to him to whom the promisor is not liable; because payment is not made to him in the name of another, but on account of an obligation of his own which is of no force or effect. For the same reason, where anyone stipulates for Stichus or Pamphilus, and the obligation is only valid with reference to one of them, because the other belongs to the stipulator, and even if he should cease to belong to him, delivery cannot legally be made, because both the objects of the stipulation have reference to the obligation and not to payment.
129. Scsevola, Questions, Book XII.
Where anyone stipulates as follows, "Will you pay ten aurei if a ship arrives, and Titius becomes Consul?" the money will not be due unless both of these events take place. The same rule applies to the opposite case, "Do you promise if a ship does not arrive, and Titius does not become Consul," for it is essential that neither of these things should occur. The following written agreement resembles this, namely, "If a vessel does not arrive, and Titius is not made Consul." When, however, the stipulation is in the following terms, "Will you pay if a ship arrives, or Titius becomes Consul?" it is sufficient for one of these events to take place. On the other hand, if it is expressed as follows, "Will you pay if a ship does not arrive, or Titius does not become Consul?" it will be sufficient if only one of these things does not occur.
130. Paulus, Questions, Book XV.
When it is said that a father legally stipulates for his son just as he stipulates for himself, this is true so far as matters which can be acquired by the father under his right of paternal authority are concerned. Otherwise, the stipulation will be yoid if the act has reference to the son personally; as, for instance, if it provided that he should be permitted to hold property, or to enjoy a right of way. On the other hand, the son, by stipulating for his father to enjoy a right of way, acquires it for him; nay more, he acquires for his father what he himself cannot individually obtain.
131. Scsevola, Questions, Book XIII.
Julianus says, "If I stipulate that nothing shall be done either by you or by Titius, your heir, to prevent me from using the right of
way," not only Titius will be liable, if he does anything to prevent this, but his co-heirs as well.
(1) A person who stipulates that a tract of land shall be conveyed to him, or Titius, even though the land may be conveyed to Titius, can still claim it, in order that he may be guaranteed against eviction; for he is interested, as he can recover the land from Titius in an action on mandate. If, however, he merely interposed Titius for the purpose of making a donation, it can be said that the principal debtor is at once released by its delivery.
132. Paulus, Questions, Book XV.
Where anyone undertakes the care of the son of another, and promises the person who places him in his charge that he will pay a certain sum of money if he should treat him otherwise than as a son, and, after he had driven him from the house, or, at the time of his death, left him nothing by his will, I ask if the stipulation will become operative, and whether it makes any difference if the youth referred to is the son, the foster-child, or a relative of the stipulator. I ask, besides, if anyone should legally give his son in adoption, and the stipulation should have been made as above mentioned, and his adoptive father should disinherit or emancipate him, whether the stipulation will become operative? I answered that the stipulation is valid in both instances. Therefore, if anything is done in violation of the agreement, the stipulation will take effect.
But in the case in which there was a lawful adoption, let us first consider whether suit can be brought if the individual disinherited or emancipated is an adopted son, for a father is accustomed to do these things with reference to his son, and hence he did not treat him otherwise than he might have done his own son. Therefore, he who was disinherited can bring an action on the ground of inofficiousness. But what shall we say if he deserved to be disinherited? It is clear that an emancipated son is not entitled to this remedy, hence the adoptive father should agree to pay a specified sum if he emancipated, or disinherited him. Still, in this case, if the stipulation became operative, it might be asked whether the disinherited son should be permitted to allege that the act was inofficious; especially if he was the natural heir of his father, and if he should lose his case, whether an action under the stipulation could be refused him. If, however, it should not be refused the stipulator, and the son should lose his case, he ought not to be denied the right to collect the money which was due.
With reference to one who did not adopt him, I do not see how the following clause, "If he should treat him otherwise than as a son," must be understood. Shall we, in this instance, require disinheritance or emancipation, acts which cannot be performed by a stranger? If he who adopted the son in accordance with law does nothing contrary to the terms of the stipulation, when he makes use of his right as a father, he speaks to no purpose when he refers to one who does not do this. Still, it may be said that the stipulation becomes operative.
(1) Where a son under paternal control stipulates as follows, "Will you be responsible for all the money which I shall lend to Titius?" and, after having been emancipated, he lends him money, his surety will owe nothing to the father, because the principal debtor is not liable to him.
133. Scsevola, Questions, Book XIII.
If I stipulate as follows, "Do you promise that force will not be employed by you, or by your heir?" and I bring suit against you because you used violence against me, any act of this kind committed by the heir will still properly remain subject to the terms of the stipulation; for it can take effect, even if force is subsequently employed by the heir, as reference is not merely made to a single act of violence. For, just as the person of the heir is included, so also are any act or acts of violence committed by him, in order that judgment may be rendered against him to the amount of the other party's interest. Or, if we wish the stipulation to be as follows, "Do you promise that nothing shall be done by you or by your heir?" so that it may relate to only the first act of violence committed, and if this occurs, the stipulation will not take effect a second time, on account of any act of the heir. Therefore, if an action based on this act of violence is brought, nothing further can be done under the stipulation. This is not true.
134. Paulus, Opinions, Book XV.
Titia, who had a son by a former husband, married Gaius Seius, who had a daughter; and, at the time of the marriage, they made an agreement that the daughter of Gaius Seius should be betrothed to the son of Titia, and an instrument was drawn up to this effect with a penalty added, if either of the parties placed any impediment in the way of the marriage. Gaius Seius afterwards died during his marriage, and his daughter refused to marry her betrothed. I ask whether the heirs of Gaius Seius are liable under the stipulation. The answer was that, in accordance with the facts stated, as in accordance with good morals, proceedings could not be instituted under the stipulation, an exception on the ground of bad faith might be pleaded against the party bringing the suit, because it is considered dishonorable for marriages which are to take place in the future, or where they already have been contracted, to be hampered by the imposition of penalties.
(1) The same authority gave it as his opinion that, in general, matters which are inserted in the preliminaries are also understood to have been repeated in the stipulation, so that the agreement does not become void on account of a repetition of this kind.
(2) The same authority held that Septicius, having provided for the payment of money by instruments in writing as well as for interest at six per cent, which was deposited with Sempronius, and this transaction having taken place between persons who were present, it should be understood that, even so far as Lucius Titius was concerned, the provisions of the stipulation had already been accepted.
(3) The same authority was of the opinion that, where several different contracts had been entered into, and a single stipulation was subsequently made with reference to all of them, even though there was but one interrogatory, and one answer, still it was the same as if each agreement constituted a separate stipulation.
135. Scasvola, Opinions, Book V.
If anyone should make the following promise, "I will pay you ten aurei upon the day that you demand them, and interest on the same every thirty days," I ask if the interest will be due from the date of the stipulation, or from the time when the principal was demanded. The answer was that, according to the facts stated, the interest will be due from the day of the stipulation, unless it is clearly proved that the intention was otherwise.
(1) The question was also asked if I should pay the money as soon as it was demanded. The answer was that, according to the facts stated, it began to be due from the day on which the stipulation was made.
(2) Seia entered into a contract with Lucius Titius that, as he had directed her to buy a garden for him, when she had received the entire price of the same with interest, she would transfer the ownership of the garden to him. It was agreed between them immediately afterwards that he should pay her the entire amount before the first Kalends of April, and receive the garden. As all the purchase-money with interest was not paid by Lucius Titius to Seia before the Kalends of April, but he was ready to pay the balance, together with the interest, within a reasonable time, and if Seia refused to accept it, it was not his fault that the balance was not paid, the question arises, if Lucius Titius is still ready to pay the entire amount to Seia, whether he can bring suit under the stipulation. The answer was that he could, if he tendered the money not long afterwards, and if the woman did not suffer any damage on account of the delay; all of which should be referred to the decision of the court.
(3) Titius stated in an instrument in writing that a slave had been given and delivered to him by Seia, under the condition that he should not come into the hands of his brother, his son, his wife, or his brother-in-law. Seia having stipulated for this, Titius agreed to it, and after the lapse of two years died, leaving two heirs, Seia and his brother, to whom it had expressly been provided that the slave should not belong. The question arose whether Seia could bring suit under the stipulation against this brother, who was her co-heir. The answer was that she could do so, to the extent of her interest.
(4) A daughter, who instituted proceedings against a will as being inofficious, and afterwards compromised with the heirs by means of a stipulation, in which was inserted the clause relating to fraud, brought an action before the Prefect attacking the will as forged, but was unable to prove this. I ask whether she could be sued under the clause providing against fraud. I answered that whatever was done afterwards had nothing to do with the stipulation.
136. Paulus, Opinions, Book V.
Where the property with reference to which the stipulation is made has different names of the same meaning, the validity of the obligation is not affected, if one party uses one name and the other another.
(1) If anyone should stipulate for a right of way to enable him to reach his land, and he afterwards, before the servitude is established, alienates the land or a part of the same, the stipulation will be annulled.
137. Venuleius, Stipulations, Book I.
The act of the stipulator and the promisor should be continuous, in such a way, however, that any short interval may be permitted to intervene, and the stipulator may be answered with very little delay. If, however, after the interrogatory has been put, something else should be done, the stipulation will be void; even though the promisor answered upon the same day.
(1) If I stipulate for a slave, and I have one slave in my mind, and you have another, the transaction will be void; for a stipulation is perfected by the consent of both parties.
(2) When I stipulate as follows, "Do you promise to pay at Ephesus?" a certain time is implied. The question arises, what time should be understood? The better opinion is to refer the entire matter to a court, that is to say to an arbiter, who will estimate how much time the diligent head of a household would require to be able to accomplish what he had promised to do; so that where anyone agreed to pay at Ephesus, he would not be compelled to travel at great speed day and night, and continue his journey regardless of every kind of weather; nor should he travel so leisurely as to appear worthy of blame; but the season, as well as the age, sex, and condition of health of the promisor, should be taken into account, in order that he may act so as to arrive promptly, that is to say, within the time that most men of his rank would ordinarily consume in making the journey. This having elapsed, even if he remained at Rome, he would not be able to pay the money at Ephesus; still he could properly be sued, either because it was his own fault that he did not make payment at Ephesus, or for the reason that he could pay it there by another, or indeed could pay it anywhere. For anything which is due at a certain time can be paid before that time, although it cannot be demanded. If, however, having used the post, or having had an unusually favorable sea-voyage, he should arrive at Ephesus sooner than anyone else ordinarily could have done, he will immediately become liable, because when anything is determined by time, or by the performance of an act, there is no longer ground for conjecture.
(3) Again, where anyone promises to build a house, there is no need of searching for workmen everywhere, and hastening to procure the largest number possible; nor, on the other hand, should the prom-' isor be satisfied with only one or two, but a moderate number should
be obtained in accordance with the conduct of a diligent builder, the time and place also being taken into consideration.
Likewise, if the work is not begun, that only will be estimated which could have been completed during the interval, and if, after the time has passed which would have been required to finish the house, it is afterwards constructed, the contractor will be released from liability, just as a person will be released who promises to give himself up, if he does so at any time afterwards.
(4) It should be considered whether someone who has promised to pay a hundred aurei becomes liable immediately, or whether the obligation remains in abeyance until he can collect the money. But what if he has no money at home, and cannot find his creditor ? These matters, however, differ from natural obstacles, and involve the ability to pay. This ability, however, is represented by the ease or difficulty of the person, and does not refer to what is promised; otherwise, if anyone should agree to deliver Stichus, we ascertain where Stichus is; or if it makes much difference when delivery is to be made at Ephesus, or where the person, being at Rome, promises to deliver something which is at Ephesus; for this also has reference to the ability to give, because there is something in common in the payment of the money, and the delivery of the slave, and that is, that the promisor cannot immediately do either. And, generally speaking, the cause of the difficulty has reference to the inconvenience of the promisor, and not to interference by the stipulator; lest it might be alleged that he who has promised to give a slave belonging to another cannot do so because his master is unwilling to sell him.
(5) If I stipulate with someone who cannot do what is possible for another to accomplish, Sabinus says that the obligation is legally incurred.
(6) When anyone stipulates under the following condition: "If Titius should sell a sacred or religious place, or a market, or a temple," or anything of this kind, which has been perpetually set apart for the use of the public, and the condition cannot, under any circumstances, legally be complied with, or if the promisor cannot do what is agreed upon, the stipulation will be of no force or effect, just as if a condition which was impossible by nature had been inserted into it.
Nor does it make any difference if the law can be changed, and what is now impossible may become possible hereafter, for the stipulation should be interpreted, not according to the law of the future, but according to that of the present time.
(7) When we stipulate for something to be done, Labeo says that it is customary, and more advisable, for a penal clause to be added, as follows: "If this is not done in this way." But when we stipulate against something being done, we provide as follows, "If anything contrary to this should be done." And when we stipulate conjointly, that some things shall be done, and others shall not, the following provision should be inserted, namely, "If you do not do this, or if you do anything contrary to this."
(8) Moreover, it should be remembered that what we stipulate shall be given cannot be acquired by only one of our heirs, but must be acquired by all of them. But when we stipulate that something shall be done, only one of them can legally be included.
138. The Same, Stipulations, Book IV.
When anyone stipulates for something to be given to him on certain market-days, Sabinus says that he can demand it after the first day. Proculus, however, and other authorities of the rival school, think that it can be demanded as long as the smallest part of the market day specified remains. I agree with Proculus.
(1) When I stipulate absolutely, as follows, "Do you promise to give this, or that?" you can change your mind with reference to what you have to give, as often as you please; because there is a difference between an intention which is expressed, and one which is implied.
139. The Same, Stipulations, Book VI.
When we attempt to obtain anything by virtue of a double stipulation, the heirs of the vendor should all be sued for the entire amount, and all of them should defend the case; and if one of them fails to do so, it will be of no advantage to the others to make a defence, because the sale must be defended in its entirety, as its nature is indivisible. Where, however, one of them is in default, all are considered to be so; and therefore all of them will be liable, and each one will be required to pay in proportion to his share of the estate.
140. Paulus, On Neratius, Book III.
After several things were proposed, the following stipulation was agreed to, "Do you promise that everything above mentioned shall be given?" The better opinion is that there are as many stipulations as there are things.
(1) With reference to the following stipulation, "Do you promise to pay this money on the day appointed in one, two, and three years?" a diversity of opinion existed among the ancients.
Paulus: I hold that, in this instance, there are three stipulations for three different sums of money.
(2) Although it is established that an obligation is extinguished if the conditions are such that it cannot begin, this is not true in all cases. For instance, a partner cannot stipulate for a right of way of any kind for the benefit of land owned in common; and still, if he who stipulated should leave two heirs, the stipulation will not be extinguished. Again, a servitude cannot be acquired by a few of the proprietors, but what is acquired can be preserved for the benefit of the -joint ownership. This occurs where a part of the servient estate, or of that to which the servitude is due, becomes the property of another owner.
141. Gaius, On Oral Obligations.
If a slave, or a son under paternal control, stipulates as follows, "Do you promise to give this article or that, whichever I may wish?"
neither the father nor the master, but only the son or the slave, can decide as to the selection of one of the articles.
(1) If a stranger personally is included in the stipulation, for instance, as follows, "Whichever one Titius may choose," the stipulator has no right to demand either of the articles, unless Titius has selected it.
(2) Although a ward can legally stipulate from the moment when he can speak for himself, still, if he is under the control of his father, he will not be liable, unless with his authority; but a child who has arrived at puberty, and is under paternal control, is usually liable just as if he were the head of a household. What we have remarked with reference to a minor can also be said to apply to a son under paternal control who has not yet reached the age of puberty.
(3) If I stipulate as follows, "Do you promise to pay me or Titius?" and you answer that you will pay me; it is the opinion of all the authorities that you have properly replied to the interrogatory, for the reason that it is established that the right of obligation has been acquired by me alone, but only Titius should be paid.
(4) If the following stipulation should be made between persons who are at Rome, namely, "Do you promise to pay to-day at Carthage?" some authorities hold that such a stipulation does not always include what is impossible; because it may happen that both the stipulator and the promisor may have, some time previously, notified their agent that a stipulation would be made upon a certain day, and the promisor may have directed his steward to make payment, and the stipulator his to receive it; because, if entered into in this way, the stipulation would be valid.
(5) When I stipulate for myself or for Titius, it is said that I cannot stipulate for one thing for myself and another for him, as, for instance, ten aurei for myself, or a slave for Titius.
, If, however, what was specifically designated for Titius is given to him, although the promisor will not be released by operation of law, he still can plead an exception by way of defence.
(6) Different dates, however, may be fixed, for example, "Do you promise to pay me on the Kalends of January, or Titius on the Kalends of February?" and, again, a nearer date can be agreed upon with reference to Titius, as follows, "Do you stipulate to pay me on the Kalends of February, and Titius on the Kalends of January?" In this case we understand the stipulation to mean, "If you do not pay Titius on the Kalends of January, do you promise to pay me on the Kalends of February?"
(7) Moreover, I can stipulate for myself absolutely, or for Titius under a condition. On the other hand, if I stipulate for myself under a condition, and for Titius absolutely, the entire stipulation will be void, unless the condition relating to me personally should not be fulfilled: that is to say, the additional obligation will not be valid unless the one which has reference only to me individually takes effect. This, however, can only be determined in this way, if it becomes evident that Titius was added unconditionally; other-
wise, if I should stipulate as follows, "If a ship arrives from Africa, do you promise to pay me, or Titius?" Titius is considered to have been added under the same condition.
(8) From this it appears that if one condition is imposed with reference to me, and another with reference to Titius, and that which has reference to me should1 not be fulfilled, the entire stipulation will be of no force or effect; but if my condition as well as that of Titius is complied with, payment can be made to Titius, still, if the condition should fail with reference to him, it will be considered as not having been added.
(9) From all these things it is evident that although another person cannot properly be added, the stipulation is none the less valid, so far as we are concerned.
TITLE II.
CONCERNING THE LIABILITY OP Two OR MORE PROMISORS.
1. Modestinus, Rules, Book II.
The person who stipulates is called the contractor of the stipulation; he who promises is considered the contractor of the promise.
2. Javolenus, On Plautius, Book III.
When two persons have promised or stipulated for the same sum of money, each of them binds and is bound for the full amount by operation of law. Therefore, having made the demand, the entire obligation is discharged by the release of one of them.
3. Ulpianus, On Sabinus, Book XLVII.
Novation does not take effect where there are two promisors. For although one may answer first, and the other bind himself after an interval, the result will be that we must hold that the first obligation continues to exist, and that the second is accessory. It makes little difference whether the parties answered together, or separately, when it is their intention that there shall be two joint-debtors, and that a novation shall not take place.
(1) Where there are two joint-promisors, the entire amount can be demanded of one of them. For it is the nature of the obligation contracted by two joint-promisors that each one of them shall be bound for the entire amount, and that it can be demanded from either; and there is no doubt that half can be demanded from each one, just as can be done from the principal debtor and the surety. For, 'as there is but one obligation, only one sum of money is due, and if one of them pays it, both will be discharged from liability; or if it is paid by the other, discharge from liability will also result.
4. Pomponius, On Sabinus, Book XXIV.
Two joint-promisors are legally liable whether they are asked, "Do you both promise?" and they answer "I do" or "We do," or if
they are asked, "Do you promise as individuals?" and they answer, "We promise."
5. Julianus, Digest, Book XXII.
There is no one who is not aware that the services of others can be promised, and.that a surety can be furnished in an obligation of this kind, and therefore that nothing prevents the contract of two stipulators or two promisors from being entered into under such circumstances; as, for instance, where two joint-stipulators make an agreement for the same work to be performed by the same artisan; and, on the other hand, where two artisans, skilled in the same trade, promise to perform the same labor, and become joint-promisors.
6. The Same, Digest, Book LII.
If I expect to have two joint-promisors, and interrogate both of them but only one answers, I think that the better opinion is that the one who answers is liable; for the interrogatory is not put to both of them under the condition that no obligation will be incurred if only one should reply.
(1) Where there are two joint-promisors, I entertain no doubt that the stipulator is at liberty to receive a surety from both, or only from one of them.
(2) Where anyone who is interrogated by two joint-stipulators answers one of them that he promises, he will be liable to him alone.
(3) Two joint-promisors can undoubtedly be bound in such a way that the time in which each of them gives his answer shall be taken into consideration. A reasonable interval of time, as well as an ordinary transaction (provided it is not contrary to the obligation), does not prevent two joint-promisors from becoming liable. A surety, also, who having been interrogated, answers between the two replies of the joint-promisor, is not considered to have interfered with their liability, because a long period of time has not intervened, and no act at variance with the terms of the obligation has been performed.
7. Florentinus, Institutes, Book Vill.
One of two joint-promisors can be bound from a specified day, or conditionally, for neither the day nor the condition will present any obstacle to prevent him who is absolutely liable from being sued.
8. Ulpianus, Opinions, Book I.
The intention of the contracting parties must be determined from the following words, "What we have promised to furnish you, as stipulator," for if both of them have become joint-promisors, and one is absent, he will not be bound, but the one who is present will be liable for the entire amount; or if they are not joint-promisors, he only will be liable for his share.
9. Papinianus, Questions, Book XXVII.
If I deposit the same article, at the same time, with two persons, relying upon the good faith of both of them, for its full value: or.
if I loan the same article, in like manner, to two persons, they become joint-promisors; for the reason that liability is incurred not only under the terms of the stipulation, but also in other contracts, for instance, purchase, sale, hiring, lease, deposit, loan, or will; just as if, for example, a testator, after having appointed several heirs, had said, "Let Titius and Msevius pay ten aurei to Sempronius."
(1) If anyone, while depositing property with two persons, provides that only one of them shall be liable for negligence, it is perfectly evident that they are not joint-promisors, as different obligations have been imposed upon them.
The same opinion should not, however, be adopted where both of them promised to be liable for negligence, if afterwards, under an agreement, one of them was released from liability for negligence; because the subsequent agreement made with one of them cannot change the legal position and natural obligation which rendered them both joint-promisors in the beginning. Therefore, if they are partners, and were both guilty of negligence, the agreement made with one of them will also benefit the other.
(2) When I stipulate with two joint-promisors that money shall be paid to me at different places in Capua, the time having reference to each one of them must be taken into consideration. For although they have assumed what is in fact a single obligation, it is still susceptible of modification, so far as each of the promisors is concerned.
10. The Same, Questions, Book XXXVII.
If two joint-promisors are not partners, the fact that the stipulator owes a sum of money to one of them will be of no advantage to the other.
11. The Same, Opinions, Book XI.
It is established that the acceptance of joint-promisors, who have become sureties for one another, is not illegal. Therefore, if the stipulator wishes to divide his action (for he is not compelled to divide it) he can sue the same person both as principal debtor, and surety for the other, to recover different parts of the amount due; just as if he proceed by separate actions against the two principal joint-promisors.
(1) Where it was stated in a written contract that So-and-So and So-and-So stipulated for a hundred aurei, and it was not added that they jointly stipulated, it was held that each of them had only stipulated for his share.
(2) On the other hand, where it is provided as follows, "Julius Carpus stipulates to pay so many aurei, and we, Antoninus Achilles, and Cornelius Dius, promise to pay them," each of the promisors will owe his respective share; because it was not added that each had promised to be liable in full, so as to render them all jointly responsible.
12. Venuleius, Stipulations, Book II.
If, of two persons who are about to bind themselves by a promise, one answers to-day, and the other on the following day, they will not
be jointly liable, and he who has answered on the next day is not even regarded as liable at all—as the stipulator, or the promisor turned aside for the transaction of other business—even though he made his reply after the said transaction had been concluded.
(1) If I stipulate for ten aurei with Titius and a ward without the authority of his guardian, or with a slave, and I have accepted them as two jointly liable promisors, Julianus says that Titius alone will be bound; although if a slave should promise, the same rule must be observed in an action for his peculium, as if he had been free.
13. The Same, Stipulations, Book III.
If a promisor should become the heir of the person jointly liable .with him, it must be said that he is bound by two obligations; for where there is some difference between the obligations, as in the case of a surety and the principal debtor, it is established that one obligation is annulled by the other. When, however, the obligations are of the same nature, it cannot be determined why one of them should be disposed of rather than the other. Hence, if one joint-stipulator should become the heir of the other, he will be entitled to two distinct obligations.
14. Paulus, Manuals, Book II,
And, even in praetorian stipulations, there can be two joint-stipu-lators.
15. Gaius, On Oral Obligations.
If Titius and I stipulate for anything, and it is understood to have reference to one of us in particular, we cannot act as joint-stipulators for the entire amount; as, for example, where we stipulate for an usufruct, or that property shall be given us by way of dowry, and this was stated by Julianus. He also says that if Titius and Seius stipulate for ten aurei, or Stichus, who belongs to Titius, they should not be considered as two joint-stipulator s, as only ten aurei will be due to Titius, and Stichus, or ten aurei will be due to Seius. The result of this opinion is, that whether he pays either of the stipulators ten aurei, or delivers Stichus to Seius, he will still remain liable to the other; but it must be held that if he pays ten aurei to either of them, he will be released from liability, so far as the other is concerned.
16. The Same, On Oral Obligations, Book HI.
If only one of two joint-stipulator s institutes legal proceedings at a time, the promisor will not be released by tendering money to the other.
17. Paulus, On Plautius, Book Vill.
Where certain heirs are specifically charged with a legacy, or all are charged excepting one, Atilicinus, Sabinus and Cassius say that they are all liable for the legacy in proportion to their respective shares'of the estate, because the estate binds them.
The same rule applies where all the heirs are mentioned.
18. Pomponius, On Plautius, Book V.
Where two joint-promisors are bound to deliver the same slave, the act of one prejudices the other.
19. The Same, On Quintus Mucius, Book XXXVII.
Where two joint-promisors owe the same sum of money, and one of them is released from his obligation through having forfeited his civil rights, the other will not be released. For it makes a great deal of difference whether the money itself is paid, or the person is released; since when one is released and the obligation continues to exist, the other will remain liable; therefore, if one of them has been excluded from water and fire, the surety of the other will afterwards be liable.
TITLE III. CONCERNING THE STIPULATIONS OF SLAVES.
1. Julianus, Digest, Book LII.
When a slave stipulates, it makes no difference whether he does so for himself, or for his master; or indeed whether he agrees to make payment, without mentioning any of the parties interested.1
(1) If your slave, who is serving me in good faith, should have a peculium which belongs to you, and I make a loan out of it to Titius, the money will still remain yours; and if the slave should stipulate that the same money shall be paid to me, he will not perform a valid act. Hence you can recover the money by an action.
(2) If a slave, who is owned in common by yourself and me, lends money out of his peculium, which belongs to you alone, he will acquire an obligation for you; and if he stipulates for the same money to be paid to me, he will not release the debtor, so far as you are concerned, but both of us will be entitled to actions; I, on account of the stipulation, and you, because your money has been lent; the debtor, however, cannot bar me, except by an exception on the ground of fraud.
(3) What my slave stipulates to be paid to my slave is considered to be the same as if he had stipulated for my benefit. Likewise, whatever he stipulates for your slave is the same as if he had stipulated for your benefit; so that the first stipulation creates an obligation, but the second is of no force or effect whatever.
(4) A slave owned in common sustains the part of two slaves; therefore, if my own slave stipulates for the benefit of another slave owned jointly by myself and you, the same rule will apply in a verbal contract of this kind, as if two stipulations had been made, one for my slave individually, and the other for yours in the same manner. And we should not think that only half is acquired for my benefit, and that the other half is not acquired at all, because the position of a
1 While a slave could contract for others, he himself incurred no legal liability: "Cum servo nulla actio est."—ED.
slave owned in common is such that where one joint-owner can acquire by his agency, and the other cannot, it is just the same as if the former alone had the power of acquisition.
(5) Where a slave, subject to an usufruct, stipulates for the usufructuary, or the owner; for instance, if he only stipulates for the interest of the usufructuary, the stipulation will be void, because he would have been able to acquire a right of action for both parties through the property of the usufructuary. If, however, he stipulates for something else, the proprietor can bring the action, and if the promisor pays the usufructuary, he will be released from liability.
(6) When a slave, jointly owned by Titius and Msevius, stipulates as follows, "Do you promise to pay Titius ten aurei, on the kalends, and if you do not pay him ten aurei on the kalends, do you promise to pay twenty to Magvius?" there appear to be two stipulations. If the ten aurei should not be paid on the kalends, either of the joint-owners can bring suit under the stipulation; but, on account of the second obligation promised by Msevius, Titius will be barred by an exception on the ground of fraud.
2. Ulpianus, On Sabinus, Book IV.
A slave jointly owned by two persons cannot stipulate for himself, although it is well established that he can do so for his master, as he does not acquire directly for his master, but acquires an obligation through himself for his benefit.
3. The Same, On Sabinus, Book V.
If a slave belonging to the Roman people, to a municipality, or to a colony, stipulates, I think that the stipulation will be valid.
4. The Same, On Sabinus, Book XXI.
If a slave owned in common stipulates for himself and one of his masters, it is the same as if he stipulated for all his masters, and one of them; as, for example, if he stipulates for Titius and Maevius, and for Msevius, it may be held that three-fourths are due to Titius, and one-fourth to Maevius.
5. The Same, On Sabinus, Book XLVIII.
A slave owned in common is the property of all his masters, and does not, so to speak, entirely belong to any of them, but belongs to each in proportion to his undivided interest; so that they hold their shares rather by a mutual understanding than corporeally. Hence, if he stipulates for something, or makes an acquisition in some other way, he acquires for all his owners in proportion to their interest in him.
He is, however, allowed to stipulate specifically for any one of his masters, or to receive the property delivered in order to acquire it for him alone. If, however, he does not stipulate specifically for one master, but, by the order of one of them, it is our practice to hold that he acquires the property for the one alone by whose order he made the stipulation.
6. Pomponius, On Sabinus, Book XXVI.
Ofilius very properly says that, in receiving by delivery, in depositing for safe-keeping, and in lending for use, acquisition is only made for the benefit of the person who directs this to be done. This opinion is also held by Cassius and Sabinus.
7. Ulpianus, On Sabinus, Book XLVIII.
Hence, if a slave should happen to have four masters, and stipulates by the order of two of them, he will only acquire for the benefit of those who gave the order; and the better opinion is that he does not acquire for them equally, but in proportion to their ownership. I hold the same opinion, if it is stated that he stipulated for them by name. For if he did not stipulate by the order of all, or for each and all of them by name, we should entertain no doubt that he acquired for all in proportion to their ownership, and not in equal shares.
(1) If a slave owned in common stipulates with one of two partners specifically for the benefit of the other, payment will be due to him alone. If, however, he stipulates absolutely, without adding anything, the slave will acquire the shares for the other partners, excepting the one of which the promisor is the owner.
When he stipulates by order of one of the partners, the rule will be the same as if he had specifically stipulated that payment should be made to the said partner. Sometimes, although he may not stipulate specifically for the benefit of any one of his masters, or by his order, still, it is held by Julianus that he will acquire for him alone; just as where he stipulates for something which cannot be acquired by both, as, for instance, a servitude attaching to the Cornelian Estate which belongs to Sempronius, one of his two masters, he also acquires it for him alone.
8. Gaius, On Cases.
The same will apply, if one of his masters should marry, and is promised a dowry by this slave.
. 9. Ulpianus, On Sabinus, Book XLVIII.
Likewise, if the slave of two masters, Titius and Maevius, stipulates for a slave of Titius, he acquires him for the one alone to whom he does not belong. If, however, he stipulates for Stichus as follows, "Do you promise to deliver him to Msevius and Titius?" he acquires him entirely for MaBvius, for what he cannot acquire for one of his masters, belongs entirely to the other who is interested in the obligation.
(1) If, when a slave has two masters, and stipulates for "one or the .other" of them; the question arises whether the stipulation is valid. Cassius says that it is void, and Julianus adopts his opinion, which is our practice.
10. Julianus, Digest, Book LII.
Where, however, a stipulation is made as follows, "Do you pronv ise to pay Titius ten aurei, or transfer a tract of land to Maevius?"
for the reason that it is uncertain for which one of them he acquires the right of action, the stipulation is considered to be void.
11. Ulpianus, On Sabinus, Book XLVIII.
If he stipulates for "himself," or for "one or the other of his masters," in this instance, the statement of Julianus that the stipulation is void, must be accepted. But is it the addition which is void, or is the entire stipulation of no force or effect? I think that the addition alone is void, for when he utters the words, "for me," he acquires a right of action under the stipulation for all his masters; but can payment be made to others, for instance, to a stranger ? I think that payment can be made to them, just as when I stipulate for myself, or for Titius. Therefore, when a stipulation is made for "one or the other of his masters," why is it not valid, or why will not payment be valid ? The reason for this is that we cannot ascertain the person to whom the stipulation refers, and who is entitled to payment.
12. Paulus, Questions, Book X.
For when both the parties are capable of assuming the obligation, we cannot find out which one was added, because there is no one who can bring suit.
13. Ulpianus, On Sabinus, Book XLVIII.
Where a slave stipulates for his master, or a stranger, both parts of the contract exist, the stipulation for the benefit of the master, and the payment with reference to the stranger; but, in this instance, the equality annuls both the stipulation and the payment.
14. Julianus, On Urseius Ferox, Book III.
My slave, being in the hands of a thief, stipulated that he should be given to him. Sabinus denies that he is due to the latter, because when he made the stipulation, he was not serving him as a slave. I, however, cannot bring suit by virtue of this agreement, because at the time that the slave made it, he was not serving me. But if he made a stipulation without mentioning the thief personally, the right of action will be acquired by me, but neither a suit on mandate, nor any other, should be granted the thief against me.
15. Florentinus, Institutes, Book Vill.
If my slave stipulates that property shall be given to me, to himself, or to a fellow-slave, or does not designate any particular person, he will acquire for my benefit.
16. Paulus, Rules, Book IV.
A slave belonging to an estate, who stipulates specifically that payment shall be made to a future heir, creates no obligation, because, at the time that the stipulation was entered into, the heir was not his owner.
17. Pomponius, On Sabinus, Book IX.
If a slave, owned in common by yourself and me, stipulates for a right of way of any description, without mentioning our names, and
I alone have the adjoining land, he will acquire the right of way solely for me. If you, also, have a tract of land, the servitude will likewise be acquired for me in its entirety.
18. Papinianus, Questions, Book XXVII.
Where a slave is jointly owned by Msevius and a peculium cas-trense, and the son under paternal control to whom the peculium belongs dies while in the army, and, before the appointed heir enters upon the estate, the said slave stipulates, the entire stipulation will enure to the benefit of the partner who in the meantime is the sole owner of the slave; because the estate, not yet being in existence, is not susceptible of division. For if anyone should venture to allege that the son under paternal control has an heir, the estate would not, in consequence, be considered already in existence, since the benefit of the Imperial Constitution permits a son under paternal control to dispose of his peculium by will. This privilege remains in suspense, before the will is confirmed by the acceptance of the estate.
(1) If the slave of Titius and Msevius should stipulate that the share of Msevius shall be given to him, the stipulation will be void; but if he stipulated that it should be given to Titius, it will be acquired by Titius. If the stipulation is formulated simply, for instance, "Do you promise to give the share which belongs to Msevius?" without adding the words "to me," it is probably true that, as the stipulation was in no way defective, it will profit the person who is entitled to the benefit of the same.
(2) A slave, whose master was taken by the enemy, stipulated for something to be given to his master. Although what he simply stipulated for or received from another would belong to the heir of the captive, the rule is different with reference to the son personally, because he was not under paternal control at the time when he made the stipulation, and was not, like the slave, afterwards included among the property of the estate. Still, in the case stated, it may be asked whether, under this stipulation, he will be held to have acquired nothing for the heir, just as if a slave belonging to an estate had stipulated for the deceased, or even for his future heirs. But, in this instance, the slave will be on the same footing with the son, for if the latter should stipulate for him to be given to his father, who was a captive, the matter will remain in abeyance, and if the father should die while in the hands of the enemy, the stipulation will be considered to be of no force or effect, as the son stipulated for another, and not
for himself.
(3) Where a slave, who is the subject of an usufruct, hires his own services, and for this reason stipulates for the payment of money every year, Julian says that, on the termination of the usufruct, the stipulation for the remainder of the time will be acquired by the owner of the property. This opinion seems to me to be supported by the very best of reasons. For, if the agreement for his services was made, for example, for five years; as it is uncertain how long the usufruct will continue to exist, then, at the beginning of each year,
the money due at the time would belong to the usufructuary. Hence, the stipulation does not pass to another, but is only acquired for each person to the extent permitted by the law. For, if a slave should stipulate as follows, "Do you promise to pay me as much money as I have paid you up to that time?" it remains undetermined who will be entitled to an action under the stipu