1Ulpianus, On the Edict, Book XXVII. In this Edict the Prætor favors natural equity, as he protects promises made by consent, since a breach of good faith is a serious matter. 1The Prætor says, “Where a person makes a promise for a sum of money which is due.” The term “person” must be understood to mean anyone at all, for women also are liable for promises to pay, if they do not act as sureties. 2Although nothing is stated in this Edict with reference to a minor, still, he is not liable for a promise without the authority of his guardian. 3The question arises whether, if a son under paternal control makes such a promise, he will be liable? I think that it is true that he will be liable, and that his father also will be liable to the extent of his son’s peculium. 4Ad Dig. 13,5,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14.Where anyone makes a stipulation which is void, but intended to make a stipulation and not a promise to pay; it must be held that the creditor cannot institute proceedings on account of a promise made, because the debtor did not act with the intention of making a promise, but of entering into a stipulation. 5The question has been asked whether a promise can be made for something else than what is due? But since it. has already been established that one thing can be delivered instead of another, there is nothing which prevents a promise being made for something else than what was due; for example, where a party who owes a hundred aurei promises grain of that value, I think that the promise is valid. 6The payment of a debt can be promised, no matter what the consideration may be; that is to say, no matter what the contract is, whether it is for a certain or an uncertain amount, and whether the party owes the purchase-money due on a sale, or money owing on account of a dowry, or on account of guardianship, or by reason of any other contract whatsoever. 7Even a debt due by natural law is sufficient. 8A person who is liable to a prætorian action, but not under the Civil Law, is liable for a promise; for it is held that what is due by Prætorian Law is a debt. Therefore, if a father or the owner of a slave makes a promise for which an action De peculio can be brought against him, he will be liable for the amount which there was in the peculium at the time when the promise was made; but if he promised more than that in his own name, he will not be bound for the excess.

2Julianus, Digest, Book XI. But if he promises in behalf of his son that he will pay ten aurei, even though only five should be in the peculium, he will be liable for ten on the promise.

3Ulpianus, On the Edict, Book XXVII. Where a husband promised a larger dowry than he is able to give, as he contracts a debt he is liable for all that he promises; but judgment shall be rendered in favor of the wife for the amount that he is able to pay. 1If anyone promises a sum of money which he owes by the Civil Law but does not owe by Prætorian Law, that is, because he is entitled to an exception; the question arises whether he is liable on account of the promise? It is true (as Pomponius states) that he is not liable, because the money which was promised is not due under Prætorian Law. 2Where anyone who owes money under both the Civil and Prætorian Law is bound by an obligation which is to become operative at some future time, will he be liable under a promise? Labeo says that he will be, and Pedius approves of his opinion. Labeo adds that this kind of promise was introduced mainly on account of those pecuniary obligations for which actions could not yet be brought, and I am not unwilling to adopt this opinion; for the principle is advantageous that a party who is bound from a certain time, by promising to make payment at that time will be liable.

4Paulus, On the Edict, Book XXIX. But if he promises to pay before that time, he will also be liable.

5Ulpianus, On the Edict, Book XXVII. Where anyone promises to pay at Ephesus, and also promises to pay at some other place, it is settled that he will be liable. 1Ad Dig. 13,5,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 284, Note 8.Julianus thinks that an envoy who promised to repay at Rome something which he had received in a province can be sued there, and this opinion is correct; but if he promised to make payment at Rome, not while he was there, but while he was still in the province, an action on the promise will be refused. 2What we have stated, namely, that where a debt is owing a promise to pay it must have reference to the very property itself, does not by any means require that the party to whom the promise was made should be already a creditor; for if you promise to pay what I owe, you will be liable, and if a promise is made to me to pay what is due to you, an obligation arises. 3Julianus also says in the Eleventh Book: “Titius wrote me a letter as follows, ‘I have stated in writing under the direction of Seius, that, if it should be proved that he owes you anything, I will give you security for the debt, and will pay it without any dispute.’” Titius, then, is liable for the payment of money promised. 4But where anyone promises that another will make payment, and not that he will do so for another, he is not liable; and this Pomponius states in the Eighth Book. 5Moreover, if you promise that you will pay me, you will be liable; but if you promise me that you will pay Sempronius, you will not be liable. 6Julianus says in the Eleventh Book of the Digest that a promise can be made to an agent; and this Pomponius holds must be understood to signify that you may promise to pay the agent, but not the principal. 7Moreover, a promise can be made to the guardian of a ward and to the representative of a municipality, as well as to the curator of an insane person. 8These persons will also be liable on any promises which they themselves make. 9Ad Dig. 13,5,5,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 13a; Bd. II, § 316, Note 11.Where a promise is made to the representative of a municipality, or to the guardian of a ward, or to the curator of an insane person or of a minor, in such a way that payment shall be made to the municipality, or the ward, or the insane person, or the minor; I am of the opinion that an equitable action should be granted to the municipality, or the ward, or the insane person, or the minor aforesaid. 10It is also established that a promise can be made even to a slave, and if this is done to the effect that payment shall be made either to the owner of the slave or to the slave himself, the slave will acquire a certain obligation for his master.

6Paulus, Sentences, Book II. The same rule applies where a promise is made to some one who is serving me as a slave in good faith.

7Ulpianus, On the Edict, Book XXVII. Even where a promise is made to a son under parental control it is valid. 1If I stipulate for payment to be made to me or to Titius, Julianus says that a promise cannot be made to Titius on his own account, because he has no right of action to recover the money, although payment can be made to him.

8Paulus, On the Edict, Book XXIX. If, however, you promise to pay either me or Titius, I have a right to bring an action; although, after you have made the promise that you will pay me alone you pay Titius, you will, nevertheless, be liable to me.

9Papinianus, Questions, Book VIII. Titius, however, will be liable to a personal action for the recovery of money not due, in order that what has been wrongfully paid to him may be refunded to the party who paid it.

10Ad Dig. 13,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 296, Note 2.Paulus, On the Edict, Book XXIX. The same rule applies where there are two creditors under a stipulation, and a promise to pay is made to one of them, and payment is subsequently made to the other; because the party to whom the promise is made should be considered to be in the position of one who has been already paid.

11Ulpianus, On the Edict, Book XXVII. Therefore, a promise will also be valid so long as what is promised is actually due, even though, in the meantime, no one should appear who owes anything; as, for example, where, before the estate of the debtor is entered upon, or while he is held captive by the enemy, some one promises that he will make payment; for Pomponius states that a promise of this kind is valid since the money which is promised is in fact due. 1Where a man owing a hundred aurei promises to pay two hundred, he will only be liable for a hundred, because that is the amount of the money due; and therefore if anyone makes a promise to pay the principal together with the interest which is not due, he will be liable only for the principal.

12Paulus, On the Edict, Book XIII. Moreover, if ten aurei are due, and the party promises to pay ten and deliver Stichus, it can be said that he is only liable for the ten aurei.

13The Same, On the Edict, Book XXIX. Where anyone who owes twenty aurei promises to pay ten, he will be liable.

14Ulpianus, On the Edict, Book XXVII. Where a man promises to pay he will be liable, whether he specifies a certain amount or not. 1If anyone promises that he will give a pledge, then, if necessity for a pledge arises, even a promise of this kind must be admitted. 2Where anyone promises that some certain person will act as his surety, Pomponius states that he will, nevertheless, be liable; but what if the party refuses to act as surety? I think that he who made the promise will be liable, unless there was some other understanding, but what if the surety should die beforehand? If there should be a default, it is only just that the party who made the promise should be liable either to the amount of the interest of the creditor, or to offer as surety some other person not less solvent; but where there was no default, I rather think that he will not be liable. 3We can make a promise for payment whether we are present or absent; just as we can make an agreement by a messenger or in our own proper persons, and in any terms that we may choose.

15Paulus, On the Edict, Book XXIX. And although the party through whom I make you a promise to pay may be free, this will be no obstacle, as we can acquire property through a person who is free, because in this instance the party is considered only to offer his services.

16Ulpianus, On the Edict, Book XXVII. Where two of us make a promise for payment as two principal debtors, an action can be brought for the entire amount against either of us. 1Anyone can make a promise to pay at a certain place or time, and suit may be brought not only at the place mentioned in the promise but anywhere, as in the case of an arbitrarian action. 2The Prætor says: “If it should be apparent that the party who made the promise neither paid the debt nor did what he should have done, and the plaintiff was not to blame because the act which was promised was not performed.” 3Therefore, if it was not the plaintiff’s fault, a right of action will exist, even though he was prevented by the nature of the circumstances; but the better opinion is that the defendant is entitled to relief. 4There is some occasion for doubt with reference to the words of the Prætor, “The debtor did not do what he should have done,” whether his words relate to the time mentioned in the promise, or whether we should refer them to the date when issue was joined; and I think that they refer to the time mentioned in the promise.

17Paulus, On the Edict, Book XXIX. But where he offers to make payment on another day, and the plaintiff is unwilling to receive it, although he has no good reason for refusing, it is but just that relief should be granted the defendant, either by an exception or by a proper interpretation, so that, up to the time of trial, the act of the plaintiff will injure himself; and that the construction of the words, “Did not do,” may be that he did not perform what he promised up to the date which he mentioned, or at any time subsequently.

18Ulpianus, On the Edict, Book XXVII. Ad Dig. 13,5,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 11.Again, the words of the Prætor, “The plaintiff was not to blame,” also raise some doubt. Pomponius is uncertain, where the plaintiff was not responsible for the promise not being fulfilled at the time indicated, but was, either before or afterwards. I am of the opinion that these words also should be deemed to refer to the time mentioned in the promise. Thus, if the plaintiff having been prevented by violence, by illness, or by bad weather, does not appear; Pomponius states that he himself must suffer the consequences. 1Ad Dig. 13,5,18,1ROHGE, Bd. 11 (1874), Nr. 110, S. 347, 352: Vereinbarung zu derselben Leistung, welche dem Contrahenten vorher obgelegen, unter Verzicht auf die Einrede der Verjährung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 112, Note 5.With reference to what is added, namely: “And that the money for which payment was promised was actually due,” this requires a more complete explanation; for, in the first place, it means that if a debt was due at the time when the promise was made, but not now, the promise will, nevertheless, hold, because the right of action is retroactive. Hence as Celsus and Julianus state, where a party is bound by an obligation on which suit can be brought against him only during a certain time and he promises payment, he should be held liable; even though the time during which suit could be brought has elapsed after the promise was made. Therefore, even if he promises that he will pay after the time of his obligation has expired, Julianus still thinks that the same rule will apply; since at the time when he made the promise he was under an obligation, although he referred it to a date when he would not have been liable. 2It is proper here to consider whether this action includes a penalty or is merely for the collection of the claim, and the better opinion is, as Marcellus himself thinks, that it is brought only for the collection of the claim. 3It was formerly a matter of doubt whether a party who brought this suit lost his right of action for the principal claim; and the safest opinion is that, when payment is made in a case of this kind, there will be a release from liability, rather than when issue is joined, since payment will benefit both obligations.

19Paulus, On the Edict, Book XXIX. Where something is due under a condition, and the promise is made which renders it payable either absolutely or at a certain time, it will remain in abeyance under the same condition; so that if the condition is complied with the party will be liable, but if it is not, both rights of action will be extinguished. 1But where anyone owes a debt absolutely, and makes a promise for payment under a condition, Pomponius says that an equitable action can be brought against him. 2Where a father or the owner of a slave promises to make payment to the amount of what is contained in the peculium, the peculium will not be diminished for the reason that he obligated himself in this way; and even though the peculium may have been lost, he will, nevertheless, not be released from liability:

20The Same, On Plautius, Book IV. For neither the increase nor the decrease of the peculium will affect the right of action on the promise.

21The Same, On the Edict, Book XXIX. Where a party promises to deliver Stichus, and Stichus dies after he is in default, if he promises to pay his value, he will be liable. 1If you make a promise without mentioning the time of payment, it may be said that you will not be liable, although the terms of the Edict are susceptible of a broad interpretation; otherwise, proceedings may be instituted without delay, unless you have prepared to make payment just as soon as you promised to do so, but a reasonable time should be granted, for instance, not less than ten days, before the claim can be collected. 2In this action, as in other bona fide actions, the same oath shall charge his obligation if he merely tenders security; but where he promises that he will give security and he offers a surety or a pledge, he will not be liable, because it makes no difference in what way he provides security.

22The Same, Abridgments, Book VI. If after a sum of money has been promised to you, you deliver the estate under the Trebellian Decree of the Senate; then, since you transferred to another the right to bring suit for the original debt, you will be refused an action for the money due to you under the promise. The same rule applies where the possessor of an estate loses it to one who has a better title; but the action in this case should preferably be granted to the beneficiary of the trust or to the party who gained the suit.

23Julianus, Digest, Book XI. Where a promisor agrees to deliver a slave and the slave dies when the former was to blame for his not having been delivered; even though he promised to deliver a slave, he will still be liable for a promise for the payment of money, and hence he must pay the value of the slave.

24Marcellus, Opinions. Titius sent a letter to Seius in the following words: “There remain in my hands fifty aurei of your loan on account of a contract of my wards, which I shall be obliged to pay you in current money on the Ides of May, and if I do not pay the said sum on the above mentioned day I shall then owe you so much as interest.” I ask whether Lucius Titius has, by this bond, taken the place of his wards as debtor? Marcellus answered that, if a stipulation had been entered into, he would have taken it. I also desire to know if he did not do this, whether he is liable on his promise to pay? Marcellus answers that he is liable for the principal; as this is the more liberal and advantageous interpretation.

25Papinianus, Questions, Book VIII. A certain person owed me either one of two things, and promised to deliver one of them; the question arose whether he could deliver the one which he did not promise? I answered that he should not be heard if he now desired to break faith with reference to what had been promised. 1Where an oath has been tendered to you, and you swear that something is due to you, when you already have a right of action on account of it, you can properly proceed on the ground of a promise to pay; but if I did not voluntarily tender the oath, but did so being compelled by the necessity of tendering it back to you, no distinction exists, even though the necessity of tendering it back arose on account of your willingness and my respect; for no one doubts that a party acts with greater moderation when he tenders an oath back, than he does when he himself makes it.

26Scævola, Opinions, Book I. A certain man wrote a letter to his creditor as follows: “The ten aurei which Lucius Titius received as a loan from your chest are in my possession, and at your disposal, with the exception of the amount of interest.” The answer was that, according to the facts stated, the party was liable to an action based on money promised.

27Ulpianus, On the Edict, Book XIV. It makes but little difference whether anyone promises to pay in the presence or in the absence of the debtor. Pomponius goes still farther in the Thirty-fourth Book, and states that anyone can make a promise for payment even without the consent of the debtor, and, therefore, he considers the opinion of Labeo to be incorrect, who thinks that if, after a party has made a promise on account of someone else, the principal should notify him not to pay, he ought to be granted an exception in factum; and Pomponius is not unreasonable in this; for when the party who made the promise is once bound, the act of the debtor should not enable him to avoid liability.

28Gaius, On the Provincial Edict, Book IV. Where anyone has promised that he will make payment, in behalf of another, he in whose behalf he made this promise will still remain bound.

29Paulus, On the Edict, Book XXIV. A person who is liable to an action for either injury, theft, or robbery, will be liable under a promise to pay.

30The Same, Sentences, Book II. Where anyone promises to pay money to one of two persons, for instance, to you or to Titius; then, although in strict law he remains bound by the proper action for the money promised, even if he should pay Titius, he will still have the right to an exception.

31Scævola, Digest, Book V. Lucius Titius died while debtor to the Seii, and they persuaded Publius Mævius that the estate belonged to him, and caused him to write a letter to them in which he stated that he was their debtor in such a way as to admit that he was the heir of his paternal uncle; and in this letter he added that the amount due had been entered in his accounts. The question arose whether since nothing had come into the hands of Publius Mævius out of the estate of Lucius Titius, whether he could be sued for money promised in the letter aforesaid, and whether he could make use of an exception on the ground of fraud? The answer was that no civil action would lie on that ground, but that an action to collect money promised would not lie either, according to the facts stated. The inquiry was also made whether suit could be brought for the recovery of the interest which had been paid on the ground above-mentioned? The answer was that, in accordance with the facts stated, it could be.