1Paulus, On the Edict, Book XXX. The Velleian Decree of the Senate very fully provides that women cannot become sureties for anyone. 1For as, by our customs, women are deprived of civil office and very many things which they do are void by mere operation of law, much more should they be deprived of the power to perform an act in which not only their services and the mere employment of the same are involved, but also the risk of their entire private property. 2It seems to be just to come to the relief of a woman in this manner, so that an action should be granted against an old debtor, or against a party who had rendered a woman liable in his behalf, for the reason that he, rather than the creditor, had taken advantage of her.

2Ulpianus, On the Edict, Book XXIX. In the first place, during the reign of the Divine Augustus, and subsequently during that of Claudius, it was forbidden by Imperial Edicts that women should become sureties for their husbands. 1Afterwards, a Decree of the Senate was enacted by which relief was granted in the most perfect manner to all women. The terms of this Decree of the Senate are as follows: “Whereas, Marcus Silanus and Velleius Tutor, Consuls, have made statements concerning the obligations of women who have become responsible for the debts of other persons, and have given advice on this subject, as to what was necessary to be done; and, whereas this matter relates to securities and the making of loans in behalf of others for whom women had become bound, and although it appears to have been formerly decided by law that no demand, on this account, could be made upon them, nor any action be brought against them when they performed the duties of men, and as it is not just for them to be liable to obligations of this description; therefore, the Senate has decreed that those to whom application is made in court must act properly and in conformity with the established mode of procedure, and exert themselves so that the will of the Senate with respect to this matter may be observed.” 2Therefore, let us examine the terms of this Decree of the Senate, after having previously eulogized the forethought of this most distinguished body of men which has brought relief to women on account of the weakness of their sex, in many supposed, as well as actual instances. 3Ad Dig. 16,1,2,3ROHGE, Bd. 14 (1875), Nr. 45, S. 114: Intercession der Ehefrau. Voraussetzung der intercessio tactita. Betrug. Beweislast, daß keine Schenkung zum Grunde gelegen.Relief is only granted to them, however, where they have not been guilty of deceit, and this the Divine Pius and Severus stated in a Rescript, for assistance is rendered to those who have been deceived, but not to such as are guilty of fraud; and this is set forth in the Rescript of Severus, written in the Greek language, which says that this Decree of the Senate is not for the purpose of aiding women who are guilty of deception, for it is the infirmity of women, and not their cunning, that deserves assistance. 4Every kind of obligation is included in the Velleian Decree of the Senate, whether women have rendered themselves liable verbally, by the delivery of property, or by any other contract whatsoever. 5Where a woman even appears voluntarily in defence of anyone, there is no doubt that she binds herself in his favor, for she assumes the obligation of another, since she exposes herself to have judgment rendered against him in a matter of this kind. Hence a woman is not permitted to undertake the defence of her husband, her child, or her father.

3Paulus, On the Edict, Book XXX. Where, however, a woman appears for the defence of a party who, if he has judgment rendered against him, will have recourse against her, (as, for instance, where she appears in defence of the vendor of an estate which she has sold to him or to a surety of hers) she is not held to have bound herself in his behalf.

4Ulpianus, On the Edict, Book XXIX. If, however, I make a contract in the beginning, when I am ignorant for whom she wishes this to be done, the Decree of the Senate undoubtedly will not apply; and this the Divine Pius and our present Emperor stated in a Rescript. 1Ad Dig. 16,1,4,1BOHGE, Bd. 2 (1871), S. 106: Voraussetzungen der tacita intercessio.Hence, if when she wished to make a gift to Titius, she borrowed a sum of money from me, and gave it to Titius, the Decree of the Senate will not apply; but if she was about to give it to you, and pays the money to your creditor, she does not bind herself, for the Senate intended to give relief to a woman who had obligated herself, and not to one who had made a donation; and this was done for the reason that a woman incurs an obligation with more facility than she makes donations.

5Gaius, On the Provincial Edict, Book IX. It makes no difference whether the woman has paid the money for the purpose of discharging the debt, or has given in payment any of her property whatsoever, for even if she had sold her property and either paid the price received for the same in behalf of another, or substituted the purchaser to another creditor, I do not think that the Decree of the Senate will be operative, so far as the creditor of another party is concerned.

6Ulpianus, On the Edict, Book XXIX. Where persons bind themselves as sureties in behalf of the defender of a son who is absent, by the direction of his mother; the question arises whether relief will be granted them also by this Decree of the Senate? Papinianus says, in the Ninth Book of Questions, that they can make use of an exception, nor does it make much difference that they have given security for the defender, since they did so having in mind the direction of the mother. He says that it is evident that, if the party who accepted the said sureties was ignorant that the mother directed them to assume the obligation, the exception based on the Decree of the Senate can be met with a reply on the ground of fraud.

7Papinianus, Questions, Book IX. Therefore, although the surety, having filed a replication on the ground of fraud, loses the defence based on the exception, he will, nevertheless, not be entitled to a replication as against the woman, because he cannot allege ignorance of the facts. It would not be unjust, however, for an action on the ground of business transacted to be granted against a defender; because it is established by the Decree of the Senate that a proceeding on the ground of mandate is void, and he is released by payment of the money by the surety.

8Ulpianus, On the Edict, Book XXIX. Although the giving of a pledge establishes an obligation, still, Julianus states in the Twelfth Book of the Digest that the restoration of a pledge does not constitute the giving of security, if a woman, who is the creditor, releases to the debtor the property which she received in pledge. 1Where a woman appears before the guardians of her son to prevent them from selling his land, and promises to indemnify them; Papinianus, in the Ninth Book of Questions, does not think that she bound herself as surety, for she did not accept either the old or new obligation with reference to another, but she herself contracted this obligation. 2Ad Dig. 16,1,8,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18; Bd. II, § 487, Note 3.Where a woman binds herself to Primus in behalf of Secundus, and afterwards binds herself in behalf of Primus to his creditor; Julianus states in the Twelfth Book of the Digest that she has bound herself twice, once for Primus to Secundus, and again for Primus to his creditor, and therefore she has contracted an obligation both for Primus, and against him. Marcellus, however, notes that a difference exists here, that is, whether it must be understood that the woman, in the beginning, has been substituted in the place of another, and has undertaken to assume the burden of the debtor from whom the creditor desired the obligation to be transferred; or whether she was substituted as a debtor, so that, if this was the case, there is but one giving of security. Hence, in accordance with this distinction, which existed at first sight where she has, so to speak, been substituted as a debtor, Marcellus will not grant her an exception based on the Decree of the Senate. However, after having judgment rendered against her, or even before this takes place, she will certainly be entitled to a personal action against the party by whom she has been substituted. 3Sometimes a suit for recovery will lie in favor of a woman who gives security, to recover what she has paid, or if she has not yet paid anything, to obtain her release from liability, for example, where, having bound herself in violation of the Decree of the Senate, she substitutes her debtor; as, in this instance, a personal action for recovery will lie in her favor against her creditor, just as if she brought suit for money which she had paid, for anyone who substitutes a debtor makes payment. 4Ad Dig. 16,1,8,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 13.But if he who has been substituted by the woman is not indebted to her, he can avail himself of the exception based on the Decree of the Senate, as he could have done if he had been her surety. 5It is evident that if a woman, being about to bind herself, substitutes her debtor, the Decree of the Senate will not apply, because, even though she paid the money, it will not be applicable; for the woman is granted relief by the Decree of the Senate, but does not make restitution of property which has been lost. 6If, however, she has substituted some one who was not her debtor, a fraud is held to have been committed against the Decree of the Senate, and therefore an exception will be granted. 7Where a woman becomes bound for a debtor, the former action is granted against him, even though he may have been discharged from liability by a release before the woman obligated herself. 8Ad Dig. 16,1,8,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 354, Note 6.Where a creditor has agreed with his debtor that the latter shall provide some one in his place, and this proposition having been accepted, he is thereupon released, and he then gives a woman as surety who can have recourse for aid to the Decree of the Senate, a personal action can be brought against him, just as if he had not given any surety; for what difference is there between not giving any, and giving one of this kind? Therefore, a prætorian action will not be necessary, since a personal action for recovery will lie. 9Marcellus also states that, if a creditor releases a woman after she has become a surety, an action for restitution should, nevertheless, be granted to the creditor, for he has released an obligation which is void. 10If a woman, after having become a surety, makes payment in such a way that she cannot recover, the former debtor can very properly refuse to defend an action brought against him; but, as the principal debtor is released, and the woman makes payment in such a way that she cannot recover, he cannot recover from her either, if he should pay, and the creditor should release him in the same manner. 11Although the action is restored against all those who are released, this is, however, not done in favor of all creditors; as, for instance, where there are two creditors who enter into a stipulation, and a woman becomes surety to one of them, the obligation is restored in the case of him alone to whom she became surety. 12Where a creditor becomes the heir of a woman who has assumed an obligation of this kind, it should be considered whether the action for restitution will not be available. Julianus says in the Twelfth Book that he is, nevertheless, entitled to the action for restitution, and this is not unreasonable, as he in fact succeeded to a woman not legally bound, and therefore this debt will not be taken into account in the administration of the Lex Falcidia. 13It is evident that, if you propose to me the case of a woman who has succeeded as heir to an original debtor, it must be said that she can be sued in an action for restitution as well as in a direct action, for it makes no difference whatever under which action proceedings are brought. 14Ad Dig. 16,1,8,14BOHGE, Bd. 2 (1871), S. 106: Voraussetzungen der tacita intercessio.ROHGE, Bd. 14 (1875), Nr. 45, S. 114: Intercession der Ehefrau. Voraussetzung der intercessio tactita. Betrug. Beweislast, daß keine Schenkung zum Grunde gelegen.If, when I am about to make a contract with you, a woman appears, and I prefer to make a contract with her, she is held to have bound herself as surety, and, in this instance, an action will be granted against you, the effect of which is rather to originate than to restore an obligation; so that, in consequence, you will be bound by the same kind of an obligation as that by which the woman is bound; for example, if the woman is bound by a stipulation, you also can be sued as under a stipulation. 15It should be considered whether, if a woman offered herself as a surety for a party who was not bound when a contract was made with him, he should be liable to this action; as, for instance, where a woman became surety for a ward without the sanction of his guardian. I think that the ward would not be bound unless he profited pecuniarily by the contract. Moreover, he for whom the woman became a surety, if he is under twenty-five years of age, can demand complete restitution, or if, while a son under paternal control, he entered into a contract in violation of the Decree of the Senate, he will be entitled to the same privilege.

9Paulus, Rules, Book VI. Where a woman becomes surety for the slave of another, the action will be restored against the master, just as it would have been against the head of the family as the principal debtor.

10Ulpianus, On the Edict, Book XXIX. These actions which are granted against those in whose behalf a woman has become surety, and against their heirs, are perpetual; for they have in view the recovery of the property, and they will be granted also in favor of prætorian successors as well as against them.

11Ad Dig. 16,1,11BOHGE, Bd. 2 (1871), S. 106: Voraussetzungen der tacita intercessio.ROHGE, Bd. 14 (1875), Nr. 12, S. 33: Aufnahme eines Darlehns für einen Andern. Bedeutung der Ausdrücke „Verbürgen, Verbürgung“.Paulus, On the Edict, Book XXX. Where a woman borrows money under the pretext of using it for her own purposes, but in fact with the intention of lending it to another; there is no ground for the application of the Decree of the Senate, otherwise, no one would contract with women, because he would be ignorant what their intentions were.

12Ad Dig. 16,1,12ROHGE, Bd. 14 (1875), Nr. 12, S. 33: Aufnahme eines Darlehns für einen Andern. Bedeutung der Ausdrücke „Verbürgen, Verbürgung“.The Same, Abridgments, Book VI. The Decree of the Senate will, however, certainly be operative when the creditor is aware that the woman has become a surety.

13Gaius, On the Provincial Edict, Book IX. Ad Dig. 16,1,13 pr.ROHGE, Bd. 25 (1880), Nr. 85, S. 358: Darlehn zur Bezahlung einer für den Ehemann übernommenen Schuld.Sometimes, although a woman may have assumed an obligation in behalf of another, she is not assisted by this Decree of the Senate, which happens when a woman assumes an obligation which, at first sight, appears indeed to be that of another, but is, in reality her own; as for instance, where a female slave has provided another debtor on account of an agreement connected with her freedom, and, after her manumission, assumes the very obligation which the debtor owes; or where a woman purchases an estate, and assumes the debts of the estate herself, or where she becomes the guarantor of her own surety. 1A creditor has no need of a new action with reference to the pledges of a former debtor, as the Servian Action (which is also designated the hypothecary action) is available in instances of this kind; since it is true that an agreement has been made with reference to pledges, and that the money has not been paid. 2If a woman appears as surety for another party under a certain condition, or with reference to a certain time; while the condition is pending, an action for restitution should be granted to the creditor against the former debtor, if he wishes it; for what advantage will it be to wait for the fulfillment of the condition, or for the expiration of the time, since the former debtor is in such a position that he must, by all means, defend the action brought against him?

14Julianus, Digest, Book XII. Where a woman has become surety for another in violation of the Decree of the Senate, it is but just that the action should be restored for the benefit of the creditor not only against the original debtor, but also against his sureties; for when the responsibility of the woman was taken away from the creditor on account of the Decree of the Senate, the former cause of action should be restored unimpaired.

15The Same, Digest, Book XV. Where I pay a woman what I owe you, and I stipulate with her that you will ratify her act, and you do not do so; I can institute proceedings based on the stipulation, and the exception founded on the Decree of the Senate which was enacted with reference to the obligations of women, will not be of any advantage to her; for she cannot be considered as refusing to assume the obligation of another, when I remain bound for the debt, and she herself profits by the transaction; and she may rather be held to have returned what was not due, than to have paid it out in behalf of another.

16The Same, On Urseius Ferox, Book IV. If a woman has become surety for me to Titius, in violation of the Velleian Decree of the Senate, and Titius sues her for the money which I have paid her, she cannot avail herself of the exception based on the Decree of the Senate, for she was in no danger of losing the money, since she already has it in her possession. 1If I have accepted a surety for a woman who has bound herself in violation of the Decree of the Senate, Gaius Cassius answered that an exception should be granted to the said surety, only to the extent that the woman had asked him to be responsible for her. Julianus, however, thinks very properly than an exception should be granted to the surety, even though he is not entitled to an action on mandate against the woman; for the reason that the Senate disapproves of the entire obligation, and the liability of the former debtor to the creditor is reestablished by the Prætor.

17Africanus, Questions, Book IV. Ad Dig. 16,1,17 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18.A husband, desiring to make a present to his wife, sold her property at a very low price, and substituted her for that price to one of his creditors. The answer was that the sale was of no force or effect, and if the creditor sued the woman for the money, an exception would be available, even if the creditor has thought that the woman was the debtor of her husband. This does not seem to be contrary to the established principle, in accordance with which if a woman has borrowed money for the purpose of lending it to her husband, an exception cannot be interposed if the creditor was ignorant with what intention she borrowed it; since, indeed, it makes a great deal of difference whether anyone contracts with a woman in the first place, or transfers the obligation of another to her, for then the creditor should be more diligent. 1Ad Dig. 16,1,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 8.If a woman should say that she had received certain property in pledge to secure her dowry as well as the payment of a sum of money, and a creditor who was about to take the same property in pledge, should see that the dowry was paid, and, being in possession, opposes her when she brings the Servian Action on the ground that the pledge had not been given with her consent; a replication, based on the Decree of the Senate, will be of no advantage to the woman, unless the creditor was aware that other money, exclusive of that of the dowry, was also due to her. 2A woman and Titius borrowed money for the purpose of expending it upon property belonging to them in common, and they became joint-debtors for the said money. I said that the woman could not, by any means, be held to have given security for the share of her partner; for if they had borrowed money for a purpose for which the creditor did not lend it, the woman would sustain the greater loss, (as, for instance, where a house jointly owned by them was not propped up, or where a tract of land held in common was confiscated) and it should rather be considered that there was no ground for the application of the Decree of the Senate. But where the borrowed money was obtained for some purchase, then she would be held to have become surety for her share, and therefore the creditor could only collect part of the money from her; because, if he claimed the entire amount, he would be barred by an exception with reference to a portion of the same.

18Paulus, On Plautius, Book VIII. The same rule applies where Titius and the woman become sureties, as two debtors, for my debtor.

19Africanus, Questions, Book IV. The guardian of a ward died after having appointed Titius his heir. The latter hesitated to accept the estate, because the guardianship was supposed to have been badly administered, and the mother of the ward having persuaded Titius to enter upon the estate at her risk, he did so, and made an agreement with her that she would indemnify him against any loss he might sustain. If Titius should be compelled to pay anything to the ward on account of the estate, and should sue the mother, it was denied that an exception based on the Decree of the Senate would be available, for it is scarcely to be supposed that any woman would become surety for a party in his presence. 1A proposition not unlike the one above mentioned was proposed, namely: A certain man of prætorian rank died leaving two sons, one of whom had not arrived at puberty, and the other who was the legal guardian of the first. The former wished to reject his father’s estate, but was prevailed upon to accept it by the wife of the deceased, who was the mother of the ward, the latter having refused it. Julianus says that he would have given a similar opinion if the guardian had had judgment rendered against him in a case brought by the ward on this account; and that he would not have been prevented by the Decree of the Senate from recovering damages from the woman. 2In this connection, the following point should be discussed, that is, if he who had entered upon the estate by the direction of the woman, suffers any loss because the debtors of the estate are insolvent, would the Decree of the Senate be applicable, since the woman had, to a certain extent, assumed their obligations? The better opinion is, however, that the Decree of the Senate would not be available on this ground, since she did not intend to become surety for them, but her intention was to guarantee the guardian against the ward, and perhaps the estate against other creditors. 3Finally, if we suppose that the woman suffered some loss on account of the purchase of the estate, because the debtors of the same were not solvent; I do not think that there can be any doubt that the Decree of the Senate will not apply, even though she was obliged to pay a certain amount to the creditors. 4But what if Titius should hesitate to enter upon the estate, because the obligations of the debtors seem to be of doubtful value; and the woman promised that she, herself, would make good whatever he failed to collect from any of said debtors? It is probable that, in this instance, she has become liable. 5Ad Dig. 16,1,19,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 11; Bd. II, § 487, Note 7.You have Titius for your debtor, and the woman desires to become surety for him, and you did not accept her on account of the Decree of the Senate; whereupon she applied to me for the purpose of borrowing money with which to pay you, and I, being ignorant of the reason for her making the loan, she made a promise to me to pay it, and directed me to pay you the money. Then, for the reason that I did not have the sum on hand, I bound myself to pay it to you. The question arose whether I could collect that money from the woman, or whether an exception based on the Decree of the Senate could be effectually pleaded by her? The answer was, that it should be considered whether it might not reasonably be said that I could be held liable in the place of the party who had become surety for the woman, and that, just as an exception is granted against a creditor, although he may be ignorant that a woman has become security for him, lest an action on mandate may be available against the woman, so a valid exception can be granted against you, and an action against the woman will be refused me, since this obligation would be at her risk. This can the more readily be stated if, before I had paid you the money, I should discover that the woman had become the surety; but if I should have previously paid you, it should be considered whether or not, an exception would, nevertheless, be granted the woman against me, and I can bring a personal action against you to recover the money; or whether, in fact, it should be held that in the beginning I had lent the money to the woman, and afterwards you had made a loan to me. This indeed was held to be the better opinion, so that there was no ground for the Decree of the Senate, just as where a woman substitutes her debtor there is no ground for considering this as security. The authority states that these two examples cannot properly be compared with one another, since, when the substitution of the debt is made, the woman is not bound; but in the case stated she transfers the obligation of another to herself, which it is certain the Senate did not wish to be done.

20The Same, Questions, Book VIII. If a woman becomes surety for one debtor, where there are two, the action is restored to the creditor as against both.

21Callistratus, Institutes, Book III. Where a woman becomes surety for another party, and what has been paid is employed for her benefit, the exception based on the Decree of the Senate will not apply, because she has suffered no loss. 1Likewise, a woman will not be protected by the Decree of the Senate, if she has committed a generous act; as, for instance, where she binds herself for her father to prevent his being annoyed by the payment of a judgment which has been rendered against him, for the Senate gives relief to the burdens of such persons.

22Paulus, Rules, Book VI. If I give money to a woman in order that she may pay my creditor, or she promises to pay the debt; Pomponius states that where she makes such a promise the Decree of the Senate will not be available, because she has rendered herself liable to an action on mandate, and is held to have bound herself with reference to her own affairs.

23The Same, On the Velleian Decree of the Senate. Where a woman interrogated in court answered that she was the heir, and she did so well knowing that she was not the heir; she will, by no means, be held to have bound herself to another, because she was guilty of deception; but if she thought that she was the heir, and, being deceived as to this, answered in this way; many authorities are of the opinion that an action will be granted against her, but that she can have recourse to an exception based on the Decree of the Senate.

24The Same, Concerning the Obligations Contracted by Women for Others. Ad Dig. 16,1,24 pr.ROHGE, Bd. 25 (1880), Nr. 85, S. 358: Darlehn zur Bezahlung einer für den Ehemann übernommenen Schuld.Where a woman who was substituted as a debtor by a creditor, made a promise in behalf of the party for whom she was substituted, she cannot avail herself of an exception, 1But if she promised to pay money in order to avoid being substituted, she is held to have obligated herself, and can do so. 2In a case where the benefit of the Decree of the Senate is available, the question arises whether an action will lie against the former debtor at the time when the woman obligated herself, or whether the latter can bring suit for the recovery of what was paid? I think that this can be done at once, and that it is not necessary to wait for payment. 3Where a woman binds herself for a party who was liable to an action limited by time, this temporary action will be restored to the creditor, so that the time will run after the date of the restitution of the action growing out of the preceding circumstances, although he could have availed himself of it at the very instant that the woman became surety.

25Ad Dig. 16,1,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 12.Modestinus, On Undertakings. Where a woman orders credit to be given to her slave, she will be liable to a prætorian action. 1If she has given security for him, and suit has been brought against her, she can protect herself by means of the exception under the Velleian Decree of the Senate, unless she did this on account of some affair of her own.

26Ulpianus, On the Edict, Book XXXVII. Where a woman, with the intention of obligating herself for another, states in court that the slave of someone else belongs to her, she can avail herself of the aid of the Decree of the Senate on the ground of having bound herself for another. It is evident that if she made this answer with reference to one who was serving her as a slave in good faith, she will not be considered to have bound herself for another.

27Papinianus, Opinions, Book III. Where a party having made a contract with a woman in good faith proceeds against her because the money which he borrowed has been employed in transactions between husband and wife; he will not be barred by an exception based on the Decree of the Senate. 1Where slaves who have been appointed for the transaction of business, in contracting with another, bring suit against a woman whose obligation they think to be valid, an exception based on the Decree of the Senate will bar their owner; nor will the position of the latter be held to be prejudiced by the act of the slave, for nothing has been obtained by the owner, any more than when a slave buys land which is in litigation, or a man who is free. 2A wife substituted another woman as her debtor to her husband, and the husband paid the money to her creditor. If she guaranteed the solvency of the woman who was substituted to her husband, the exception based on the Decree of the Senate will not be available, because the woman is transacting her own business.

28Scævola, Opinions, Book I. Seia bought some slaves, and having borrowed money with her husband as surety, paid the vendor. Her husband afterwards died insolvent, and, for the purpose of defrauding his creditor, stated in his will that he owed the entire amount; and the question arose whether the woman could be held to have bound herself in behalf of another? I answered, that in accordance with the facts stated, she had not bound herself. 1Ad Dig. 16,1,28,1ROHGE, Bd. 14 (1875), Nr. 12, S. 33: Aufnahme eines Darlehns für einen Andern. Bedeutung der Ausdrücke „Verbürgen, Verbürgung“.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 11.A husband, in order to secure a lease, pledged to Sempronius a tract of land belonging to his wife. The woman having afterwards borrowed money from Numerius on her own account, with the encumbrance of the same tract of land, immediately paid Sempronius for her husband. The question arose whether she contracted this obligation in violation to the Decree of the Senate. I answered that, if Numerius was aware that she had obligated herself for another, the Decree of the Senate would apply in the case stated.

29Ad Dig. 16,1,29ROHGE, Bd. 14 (1875), Nr. 45, S. 114: Intercession der Ehefrau. Voraussetzung der intercessio tactita. Betrug. Beweislast, daß keine Schenkung zum Grunde gelegen.Paulus, Opinions, Book XVI. Ad Dig. 16,1,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 487, Note 7.A certain man wished to contract with the heirs of Lucius Titius and to lend them money, but as he suspected that they were not solvent, he preferred to lend it to the widow of the testator, and take a pledge for her. The woman lent the same money to the heirs, and took a pledge from them. I ask whether she is held to have obligated herself for another, and whether the pledges which she took are liable to the creditor? Paulus answers that if the creditor who desired to make a contract with the heirs of Lucius Titius avoided doing so with them, and preferred to have the widow as his debtor, the Decree of the Senate which was enacted with reference to the obligations contracted by women for others, will be available against him, and that the pledges given by her will not be liable. The property which the woman received by way of pledge from those in whose behalf she became bound will be liable to the creditor of the woman, and the Prætor will not act unreasonably if he grants an action against the principal creditors, for the purpose of relieving the woman from responsibility, as well as against the property which had been encumbered by them to her. 1Paulus states that everything which can be proved to have been planned to evade the provisions of the Decree of the Senate enacted with reference to the obligations incurred by women for others, should not be considered valid.

30The Same, Sentences, Book II. Where a woman becomes surety for another with the intention to deceive, or when she knew that she could not be held liable, an exception based on the Decree of the Senate will not be granted her; for the most Noble Order of the Senate does not exclude the action which will lie on account of fraud committed by a woman. 1If an agent obligates himself for another by the direction of a woman, he can have recourse to the exception based on the Velleian Decree of the Senate, lest, otherwise, the right of action may be extinguished.

31The Same, On Neratius, Book I. Paulus says if a woman does not wish to recover what she paid on account of her becoming bound to another, but prefers to bring an action on mandate, and to reimburse herself for indemnifying the debtor, she should be heard.

32Pomponius, Decrees of the Senate, Book I. Where a woman enters upon the estate of anyone in order to assume payment of the debts due from it, it will be difficult for her to obtain relief, unless this has been contrived by the fraud of the creditors; for a woman ought not to be considered as, in every respect, occupying the position of a minor under twenty-five years of age who has been overreached. 1When a woman wishes to recover property given in pledge by her at the time she became surety for another, she should also receive the crops and the offspring of slaves, and, if the property has been deteriorated, a larger sum should be paid on this account. Where, however, the creditor who received the pledge to secure the obligation has sold it to a third party, the true opinion is that of those who think that an action should be granted to her, even against a purchaser in good faith; because the position of a purchaser should not be better than that of the vendor. 2Ad Dig. 16,1,32,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 5.Likewise, if a woman sells a tract of land to the creditor of her husband, and delivers it on condition that the purchaser will apply the money received to the payment of her husband’s debt, and she brings suit to recover said land, she can be met by an exception on the ground of property sold and delivered; but she can reply that the sale has been made against the provisions of the Decree of the Senate. This can be done whether the creditor himself purchases the property, or whether he has employed someone else to do so, in order that the woman may be deprived of it in this manner. The same rule applies where the woman has transferred her property, not in behalf of her husband, but in behalf of some other debtor. 3Where a woman, to avoid binding herself for another, directs a third party to do this for her, will the Decree of the Senate apply to this person who has acted at the request of the woman? The entire substance of the Decree of the Senate has reference to the denial of the suit against the woman herself, and I think a distinction should be made here; as, for instance, where a creditor, to whom I have bound myself at the direction of a woman, has devised this plan for the purpose of evading the Decree of the Senate, as the woman does not seem to have bound herself in violation of that Decree, but offered someone else; he should be barred by an exception based on fraud committed against the Decree of the Senate. If, however, he should be ignorant of the facts, but I should be aware of them, then, if I bring an action on mandate against the woman, I will be barred, but I will still be liable to the creditor. 4Ad Dig. 16,1,32,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 486, Note 6.Where a woman is ready to join issue in behalf of the party for whom she obligated herself, in order that an action may not be granted against the first debtor, as she can plead the exception based on the Decree of the Senate, she must give security that she will not avail herself of the exception, and then proceed to trial. 5A woman is also understood to bind herself for another, even when she does this for one who cannot be bound; as, for instance, where she obligates herself for a slave belonging to another, but her obligation will be extinguished if the action should be restored against the master of the slave.