Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book IV. The justice of this Edict is natural, for what is so suitable to the good faith of mankind as to observe those things which parties have agreed upon? 1The term pactum is derived from pactio, and the word pax has also the same origin. 2An agreement is the consent of two or more persons to the same effect. 3The term “conventio” is a general one, and refers to everything to which persons who have transactions with one another give their consent for the purpose of making a contract, or settling a dispute; for as parties are said to come together who assemble from different places in one; so, also, the same word is applicable to those who, from different feelings of the mind, agree upon one thing; that is to say, arrive at one opinion. The term “conventio” is such a general one, as Pedius very properly says, that there is no contract and no obligation which does not include it, whether it is made by the delivery of the property, or verbally; for even a stipulation, which is verbally made, is void, where consent does not exist. 4The greater number of conventions have names that are peculiar to them, as, for instance, sale, hire, pledge, and stipulation.

2 Paulus, On the Edict, Book III. Labeo says that an agreement can be entered into by delivery of property, by a letter, or by a messenger. It can also be made between absent parties, and it is understood that an agreement can be entered into by tacit consent. 1Hence, if I restore his obligation to my debtor, it is held to have been agreed upon between us that I will not make any claim against him; and it is established that, if I do, he can plead in bar an exception based on the agreement.

3 Modestinus, Rules, Book III. But after a pledge has been restored to a debtor, there is no question that the debt can be collected, if the money had not been paid; unless it is expressly proved that the contrary was intended.

4 Paulus, On the Edict, Book III. Again, for the reason that tacit agreements are valid, it is settled that personal effects brought into dwelling-houses, which have been rented, are to be regarded as pledged to the lessor; even though nothing was specially stated to that effect. 1In accordance with this principle, a person who is dumb can enter into a contract. 2A stipulation made on account of a dowry is another proof of this, for no one has a right, before marriage, to bring suit for the dowry, any more than if this had been expressly stated; and if the marriage does not take place, the stipulation has no effect, which is also the opinion of Julianus. 3Having been consulted in a case where it was agreed that the principal could not be demanded so long as the interest was paid, and the stipulation was unconditionally drawn up, it was the opinion of Julianus that the condition was implied by the stipulation, just as if it had been expressed therein.

5 Ulpianus, On the Edict, Book IV. There are three kinds of conventions, some of which relate to public matters, and some to private affairs. Those which are private are either based upon legislative enactments or upon the Law of Nations. A public convention is one by which peace is made when two military leaders agree upon certain things to that end.

6 Paulus, On the Edict, Book III. A convention based upon legislative enactment is one which is confirmed by some law; and therefore sometimes an action arises from an agreement, or is abrogated by it; which takes place as often as it is supported by an enactment, or by a Decree of the Senate.

7 Ulpianus, On the Edict, Book IV. Some conventions based on the Law of Nations give rise to actions, and others give rise to exceptions. 1Those which give rise to actions are not known by their own names, but pass under the special designation of contracts; as purchase, sale, hire, partnership, loan, deposit, and other similar terms. 2Where the matter has not been placed under the head of some special contract, then, as Aristo very properly stated to Celsus, an obligation exists; as, for instance, I gave you something with the understanding that you would give me something else; or I gave you something with the understanding that you would perform some act, and this is sunallagma, that is to say, a mutual agreement, and a civil obligation will arise therefrom. Therefore I am of the opinion that Julianus was very justly criticized by Mauricianus for his decision in the following case: “I gave you Stichus with the understanding that you should manumit Pamphilus; you manumitted him, but Stichus was evicted by another party.” Julianus holds that an action in factum should be granted by the Prætor; but the former says that there is a civil action for an object which is uncertain, that is to say, one in prescribed terms, for there is a contract which Aristo calls sunallagma, and from this the action is derived. 3Where something is promised to prevent the commission of a crime, no obligation arises from such an agreement. 4But, where there is no ground for an agreement, it has been established that no obligation can be created; therefore, a mere agreement does not create an obligation, but it does create an exception. 5Sometimes, however, it does give rise to a suit, as in bona fide actions; for we are accustomed to say that agreements which are entered into are included in bona fide actions; but this must only be understood in the sense that where agreements follow as parts of a contract, they are included so as to give the right of action to the plaintiff; but if they are added afterwards, they are not considered to belong to the contract, nor do they confer a right of action; otherwise, an action would arise from the agreement. For instance, if after a divorce, it is agreed that the dowry shall not be surrendered at the end of the time prescribed by law, but immediately; this will not be valid; otherwise there would be an action founded on an agreement. Marcellus states the same thing, and if during an action of guardianship, it is agreed that a higher rate of interest than that established by law shall be paid, this is of no effect, or there would be an action founded upon an agreement; as the agreements contained in the contract constitute its very essence; that is, they were made when the contract was entered into. I am aware that Papinianus said that if, after a sale, any agreement was entered into which was not a part of the contract, an action growing out of the sale could not be brought, on account of this same rule, namely: “No action can arise on a simple contract,” which may also be stated concerning all bona fide actions. The agreement, however, will have effect on the side of the defendant, for the reason that agreements which are afterwards interposed usually give rise to exceptions. 6To such an extent are subsequent agreements included in the same contract, that it is established that in purchases and other bona fide cases where the exception has not been followed up, the party can withdraw from the purchase. If this can be done as a whole, why cannot a part of it be changed by an agreement? This Pomponius stated in his Sixth Book on the Edict. Since this is the fact, an agreement will still have effect on the part of the plaintiff, so as to give him a right of action, where no further proceedings have been taken; and, on the same principle, if the whole contract can be set aside, why can it not be amended and appear, as it were, in a new form? This can be said to have been properly stated, and therefore I do not disapprove of what Pomponius says in his book of “Readings”, namely: that one can by an agreement partially abandon a purchase, so that a purchase of the part may be made a second time. Where, however, two heirs are left by the purchaser, and the vendor agreed with one of them to abandon the sale; Julianus says that the agreement is valid, and that the sale is in part annulled, since the other heir by entering into another contract would have been able to obtain an exception as against his co-heirs. Hence the opinion of Julianus and Pomponius are very properly established. 7The Prætor says: “I will require the observance of agreements which have not been entered into maliciously or contrary to the laws, plebiscites, Decrees of the Senate, or Edicts of the Emperors, where no fraud appears in any of them.” 8There are certain agreements which relate to real property, and others which relate to personal property. Those that relate to real property are those by which I agree, in general terms, not to bring suit; those which relate to personal property are those in which I agree not to sue a certain individual, for instance: “I will not sue Lucius Titius.” Whether an agreement is made with reference to property or to a person is to be ascertained not only from the language, but also from the intention of the contracting parties; since generally, (as Pedius says) the name of the person is inserted in the contract, not for the purpose of rendering it personal, but that it may be shown with whom the contract was made. 9The Prætor says that an agreement fraudulently executed shall not be observed. Fraud is perpetrated by means of craft and artifice; and, as Pedius says, a contract is fraudulently executed whenever something is done, under the pretence that something else is intended, for the purpose of cheating another. 10The Prætor adds nothing with reference to contracts entered into in order to defraud; but Labeo very properly says that if he did, it would be either unjust or superfluous; unjust if, for instance, the creditor having once given his debtor a bona fide release, should afterwards attempt to annul it; superfluous, if he was deceived when he granted the release, for fraud is included in deceit. 11Where a contract is fraudulently made in the beginning, or some fraudulent act is committed afterwards, there is ground for an exception, according to the words of the Edict: “And no fraud is committed”. 12With reference to what is usually inserted at the end of an agreement, namely: “Titius asked, Mævius promised”; these words are not only understood as forming part of the contract, but also as being part of the stipulation; and therefore an action on a stipulation arises from them, unless the contrary is expressly proved; for the reason that this was done, not with the intention of making a stipulation, but only of entering into an agreement. 13If I agree that an action shall not be brought on a judgment, or for burning a house, an agreement of this kind is valid. 14If I agree not to institute proceedings upon the “notice of a new structure”, some authorities are of the opinion that the agreement is not valid, because it, as it were, attacks the authority of the Prætor; but Labeo makes a distinction here, as, for instance, where the new structure may be injurious to private property the agreement can be entered into; but where it affects public property this cannot be done, which is a very proper distinction. Thus it is lawful to enter into an agreement with respect to all other matters to which the Edict of the Prætor relates, and which affect private property, but not to those where the injury of public property is concerned; for the law even permits a compromise to be made with reference to a theft. 15Where anyone agrees not to institute proceedings on account of a deposit, the contract is valid, according to Pomponius. Also where anyone agrees: “To assume all risk attending a deposit”; Pomponius states that the agreement is valid, and it cannot be set aside as contrary to law. 16Generally speaking, whenever an agreement is contrary to the Common Law, one is not obliged to observe it, nor can a legacy be made to depend upon this; nor where an oath has been made that the party will not sue, the agreement should not be observed, Marcellus states the same in the Second Book of the Digest; and where a stipulation has been entered into with reference to matters which it is not lawful to make the subject of a contract it is not to be observed, but entirely rescinded. 17When anyone before entering upon an estate makes an agreement with the creditors to pay them less than is due, then the contract will be valid. 18Where a slave makes an agreement before he obtains his freedom and inheritance, Vindius says that the contract is of no force, because he was appointed an heir under a condition. Marcellus, however, in the Eighth Book of the Digest, is of the opinion that if a direct heir, and a slave who is a necessary heir, both of whom have been absolutely appointed, make an agreement before meddling with the estate, they do so properly, which indeed is correct. He also thinks that a foreign heir, where he enters upon the estate under the direction of creditors, does so lawfully, and that he also has a right of action. But where anyone (as we have previously stated) enters into an agreement while in slavery, Marcellus denies that his contract is valid, since whatever act a person performs while in slavery does not usually profit him after he has obtained his freedom; which must be admitted with respect to an exception based upon a contract. But the question arises does an exception which is based upon fraud benefit him? Marcellus, although he was previously in doubt whether this was the case, in similar instances, however, admits it; as, for instance, where the son of a family, having been appointed heir, makes an agreement with creditors, but after he has been emancipated, enters upon the estate; he holds that he can make use of an exception on the ground of fraud. He is of the same opinion where a son, during the lifetime of his father, makes an agreement with the creditors of the latter; for in this instance an exception on the ground of fraud will be admitted. Finally, an exception on the ground of fraud must not be rejected even in the case of slaves. 19At present, however, an agreement of this kind can only be a disadvantage to creditors where they assemble, and by common consent state with what portion of their debts they will be satisfied. But, if they do not agree, the intervention of the Prætor will be necessary, who in his decision must follow the will of the majority.

8 Papinianus, Opinions, Book X. It has been decided that, in the case of creditors, a majority has reference to the amount of the indebtedness, and not to the number of individuals. If the number of the creditors is the same as the number of the debts, then the majority of the creditors must be given the preference; when the number of the creditors is equal, the Prætor must follow the will of him who is highest in rank among them; but where everything is equal on both sides, the most humane opinion must be chosen by the Prætor, for this can be gathered from the Rescript of the Divine Marcus.

9 Paulus, On the Edict, Book LXII. Where there are several creditors who have a single right of action, they are held to occupy the position of only one person; as, for example, where there are several creditors by stipulation, or several bankers whose obligations were entered into at the same time, they shall be considered as one, because there is only one debt. Where several guardians of one ward, who is a creditor, enter into an agreement, they are regarded as one, for the reason that they did so in behalf of a single ward. Again, where a single guardian enters into an agreement in behalf of several wards who are claimants of one debt, it is established that they are to be considered as one person, since it is a difficult matter for one man to represent two persons; for, indeed, lie who has several causes of action against a party who has only one, is not permitted to represent several persons. 1We estimate the total amount of indebtedness when several sums are due; as, for example, where several sums, which together amount to a hundred aurei, are owing to one man; and a sum of fifty aurei is owing to another; for, in this instance, we must consider the amount which is made up of several sums, because when they are added together they are greater than the single one. 2We must also add to the principal the interest which is due.

10 Ulpianus, On the Edict, Book IV. The Rescript of the Divine Marcus provides that all the creditors shall assemble. But what if some of them are absent? Must those who are absent follow the example of those who are present? But if the agreement is valid as against those who are absent, an important question arises, namely, whether this agreement will bar absent privileged creditors? I repeat that, before the rule established by the Divine Marcus, the Divine Pius stated in a Rescript: “That the Treasury also, in those cases where hypothecation does not exist, as well as other privileged creditors, shall follow the example of the others.” All these rules must be observed with reference to those creditors who are without security. 1Where the stipulation of a penalty has been added to the contract, the question arises whether an exception on the ground of contract applies, or whether a suit should be brought on the stipulation? The opinion of Sabinus, which is the better one, is that he who made the stipulation can take either course, as he may choose; if, however, he makes use of the exception founded on the contract, it will be just to release the stipulation. 2We are for the most part accustomed to state: “that an exception founded upon fraud is an aid to an exception founded upon contract”; and then there are persons who cannot make use of an exception founded upon contract, but can use one founded upon fraud; which was the opinion of Julianus, and was endorsed by many others; for example, if my agent should make an agreement, I could have the benefit of an exception on the ground of fraud, which opinion is held by Trebatius, who thinks that as an agreement of my agent may injure me, it may also be to my advantage.

11 Paulus, On the Edict, Book III. For the reason that he can be paid.

12 Ulpianus, On the Edict, Book IV. For it is established that it will be a source of injury to me, whether I ordered him to make a contract, or whether he was my general agent; as Puteolanus states in the First Book on Assessors, since it has been decided that he also can institute judicial proceedings.

13 Paulus, On the Edict, Book III. But if the agent was only appointed for the purpose of bringing an action, an agreement made by him does not prejudice his principal, for the reason that he cannot receive payment. 1Where, however, the agent was appointed for the transaction of affairs in which he himself is interested, he is considered to occupy the place of a principal, and thus any agreement entered into with him must be observed.

14 Ulpianus, On the Edict, Book IV. Moreover, an agreement made by the head of a company is valid both for and against it.

15 Paulus, On the Edict, Book III. An agreement made by a guardian on behalf of his ward is valid, as is stated by Julianus.

16 Ulpianus, On the Edict, Book IV. Where an agreement has been made with the purchaser of an estate, and the vendor of the same brings an action, an exception on the ground of fraud is a bar to his proceeding; for, according to a Rescript of the Divine Pius, equitable actions must be granted to the purchaser of an estate, and it is but just that a debtor of the estate should be able to make use of an exception on the ground of fraud, as against the vendor. 1Where an agreement has been made between the owner of the property sold and the purchaser of the same, for instance, that a slave who had been purchased should be restored to the person who sold him as owner; if he brings suit for the price he will be barred by an exception on the ground of fraud.

17 Paulus, On the Edict, Book III. If I give you ten aurei and agree with you that you shall owe me twenty, no obligation arises for more than ten, for none can be contracted for a greater amount than has been given. 1There are certain rights of action which are annulled under a contract by operation of law, as, for instance, one for injuries, or one for theft. 2A right of action based upon an agreement arises in the case of a pledge, under Prætorian Law; it is, however, annulled by an exception whenever I agree not to sue. 3When anyone makes an agreement that no suit shall be brought against himself, but shall be brought against his heir; an exception filed by the heir will be of no benefit to him. 4If I should agree that no suit shall be brought against me, or against Titius, this will be of no advantage to Titius, even if he should become the heir, because this cannot be confirmed subsequently. Julianus established this rule in the case of a father who made an agreement that suit should not be brought against him, or his daughter, when the daughter afterwards became the heir of her father. 5Where an agreement has been entered into with the vendor with reference to the property, it can be pleaded by the purchaser, according to the opinion of several authorities, and Pomponius states that we make use of this rule; but, according to Sabinus, when the agreement is personal, it can also be pleaded against the purchaser. He thinks that this is also the law where a succession arises through donation. 6When the unlawful possession of the estate of another enters into an agreement, many are of the opinion that the agreement will neither benefit nor prejudice the heir, if he should recover the estate. 7If a son or a slave enters into an agreement that no action shall be brought against the father or the master.

18 Gaius, On the Provincial Edict, Book I. (Whether the agreement is made with reference to a former contract with the parties themselves, or with the father or master).

19 Paulus, On the Edict, Book III. They are entitled to an exception. The same rule applies to those who are held in slavery in good faith. 1Again, if the son of a family makes an agreement that suit shall not be brought against him, it will be to his advantage and to that of his father also, if the latter is sued for the peculium of the son.

20 Gaius, On the Provincial Edict, Book I. Or for any profit obtained by an obligation contracted by his son, or where he is sued as a defender of his son, if he should prefer this.

21 Paulus, On the Edict, Book III. It can also be pleaded by the heir of the father during the lifetime of his son, but after the death of the son this cannot be done by the father or his heir, because the agreement is a personal one. 1Where a servant enters into an agreement that he shall not be sued, the agreement is worthless. Let us see whether an exception on the ground of fraud can be pleaded. When the agreement has reference to property, an exception based upon the agreement itself can be pleaded by the master and his heir, but where the agreement is personal, then the exception on the ground of fraud is only available. 2By making an agreement we cannot benefit those who are under our control; but it will be an advantage to us if we make an agreement in their behalf, as Proculus states. And this doctrine is correct if this was the understanding that the time that the contract was entered into; but if I agree that you shall not bring suit against Titius, and you begin an action against me in his name, an exception on the ground of contract is not allowed; for what is no benefit to Titius himself will be of none to his defender. Julianus also stated that where a father agreed that no suit should be brought either against him or his son, the better opinion is that the exception on the ground of contract cannot be pleaded by the son of the family, but merely one on the ground of fraud. 3The son of a family can enter into an agreement not to bring suit for a dowry when he becomes his own master. 4The son of a family can also legally enter into an agreement concerning a legacy bequeathed to him under some condition. 5Where there are several persons who have the right to collect an entire sum of money, or who are co-debtors for the same sum, the question arises to what an extent an exception on the ground of contract can be pleaded by one for, and against the others? An agreement made with reference to the property will benefit those who have been released from this obligation, where he who entered into the agreement had an interest in this; and therefore an agreement of the debtor will be an advantage to the sureties.

22 Ulpianus, On the Edict, Book IV. Unless it was the intention of the parties that no suit should be brought against the principal, but that it might be brought against the surety; in this instance the surety cannot avail himself of an exception.

23 Paulus, On the Edict, Book III. An agreement made by the surety would be of no benefit to the principal, because the surety has no interest in the money not being collected from the debtor; nor would it be of any benefit to the co-sureties, nor will an agreement made with another, no matter what his interest may be; for he can only do this when an exception is granted him and the benefit chiefly enures to the party with whom the agreement was made, as in the case of a principal promisor along with those who are bound on his account.

24 The Same, On Plautius, Book III. Where a surety has bound himself in a matter in which he was interested, in this instance he is to be considered as a principal debtor; and where an agreement is made with him, it is held to have been made with the principal debtor.

25 The Same, On the Edict, Book III. The same rule applies where two principal debtors, or two bankers who are partners, bind themselves. 1Labeo says that a personal agreement does riot concern a third party, nor in fact an heir. 2But although the agreement of a surety is of no advantage to the principal debtor, Julianus says that the latter can, nevertheless, generally avail himself of an exception on the ground of fraud.

26 Ulpianus, On the Edict, Book IV. That is to say, it was understood that no suit could be brought against the principal debtor. The same rule applies to co-sureties.

27 Paulus, On the Edict, Book III. Where one of two bankers, who are partners, make an agreement with a debtor, can an exception be pleaded in bar against the other? Neratius, Atilicinus, and Proculus, are of the opinion that it can not, if the agreement relating to the property was made by one of them; for it has only been settled that the other can bring suit for the entire debt. Labeo holds the same opinion, because although one of them can receive payment, he cannot change the obligation; and thus payment of what they have loaned can properly be made to those who are under our control, but the obligation cannot be changed; and this is correct. The same rule applies to two creditors under a stipulation. 1Where an informal agreement has been made with a principal debtor granting him time, neither debtor nor surety will have the benefit of any further time. If the debtor, without releasing himself, enters into an agreement that his surety shall not be sued; some authorities think that this is of no benefit to the surety, even though the principal was interested therein; for the reason that the same exception should be available to him as to the principal. I have held that the surety is entitled to the benefit of an exception, for this would not be the case where a right was acquired through a free person, but rather one where we have provided for the party himself who entered into the agreement, which rule is at present in use. 2After an agreement has been made that suit shall not be brought, and it is subsequently agreed that it may be, the former agreement is annulled by the latter one; not indeed by operation of law, as one stipulation is extinguished by another, where this is the intention of the parties, because the law governs stipulations, and in contracts all depends upon the facts; therefore an exception is rebutted by a replication. On the same principle it happens that the first agreement will not release the sureties. But where the first agreement was of such a character that it extinguished the right of action, as, for instance, in a case of injury, suit cannot subsequently be brought after making the agreement that this can be done; because the first right of action was lost, and an agreement made afterwards has no effect to bestow a right of action, and an action for injury cannot be based on a contract, but only on insulting behavior. We say that the same rule applies in the case of bona fide contracts, where the agreement annuls the entire obligation, as, for example, in the case of a purchase; for the prior obligation is not revived by a new contract, but it would be an advantage to it. But where the entire contract was not abrogated, but something in it was excluded, the second agreement acts as a renewal of the first. This can take place in an action for dowry, for example, where a woman makes an agreement that her dowry shall be restored to her without delay, and afterwards enters into one that it shall be returned to her at the time authorized by law; in this instance the dowry will revert to her in accordance with the law, nor can it be stated that the condition of the dowry becomes any worse by reason of the agreement; for as often as the right of action for a dowry resumes the condition with which the Law of Nature invested it, the state of the dowry does not become worse, but is restored to its original form. This opinion was also held by Scævola. 3It cannot be provided by agreement that a person shall not be responsible for bad faith; for although a party may agree not to bring suit for a deposit, he seems by the terms of the contract to agree not to bring an action on the ground of fraud, and an agreement of this kind can be pleaded. 4Agreements which contain immoral provisions should not be observed; as, for instance, if I agree not to sue you for theft or injury, if you commit them; for it is proper that the fear of punishment for theft or injury should exist. After these offences have been committed, however, we can make an agreement. In like manner, I cannot agree that I will not apply for an interdict for violence, so far as this affects the interest of the public. And, in general, where the agreement extends beyond the interest of individuals, it should not be observed. And, above all things, it must be borne in mind that an agreement made with reference to one thing or to one person, shall not injure another thing or another person. 5Where you owe me ten aurei, and I contract not to sue you for twenty, it is established that you are entitled to an exception on the ground of contract, or on the ground of fraud, to the amount of ten aurei. Again, if you owe me twenty aurei, and I agree to only sue you for ten; the result will be that, if you oppose an exception to me, I can only exact from you the payment of the remaining ten. 6But where, having stipulated for ten aurei, or Stichus, I make an agreement with you for ten, and then bring suit for Stichus or the ten aurei, if an exception is pleaded on the ground of contract, the right of action will be absolutely extinguished; for, as the entire obligation will be discharged by payment, or by a suit, or by a lease of one of the two things; so, when an agreement is entered into not to bring suit for one thing, the entire obligation is disposed of. But where it is understood between us that ten aurei shall not be given to me, but that Stichus shall be, I can legally bring suit for Stichus, and no exception can be pleaded against me. The same rule applies where an agreement was made not to bring suit for Stichus. 7But where you owe me a slave in general terms, and I agree not to bring suit for Stichus, an exception on the ground of contract can be pleaded against me, if I bring suit for Stichus; but if I bring suit for another slave, I am acting properly. 8Moreover, if I make an agreement not to bring suit for an estate, and, acting as heir, I bring suit for certain pieces of property, an exception on the ground of contract can be pleaded against me with respect to what is agreed upon; just as if the agreement had been that I should not sue for a tract of land, and I bring an action for the usufruct of the same; or, having agreed not to bring suit for a ship, or a building, I bring an action for certain parts of them, after they have been demolished; unless there is some express understanding to the contrary. 9Where a release is not valid, it is held to be understood by tacit agreement that suit shall not be brought. 10A slave cannot make an agreement on behalf of the heir who is about to enter upon the estate, because the latter is not yet his master; but if the agreement was made with reference to property, it can be acquired by the heir.

28 Gaius, On the Provincial Edict, Book I. Agreements entered into against the Civil Law are not considered valid; as, for instance, where a ward, without the consent of his guardian, enters into an agreement not to sue his debtor, or that he will not bring suit within a certain time (for example, within five years) for he cannot legally receive payment without the consent of his guardian. On the other hand, if a ward makes an agreement that he shall not be sued for what he owes, the agreement is held to be valid, for he is permitted to improve his condition without the consent of his guardian. 1Where the curator of an insane person or a spendthrift makes an agreement that suit shall not be brought against the said insane person or spendthrift, it is perfectly proper that such an agreement of the curator should be sustained, but not in the contrary case. 2Where a son, or a slave makes an agreement that he himself will not bring an action, the agreement is void. But if it was made with reference to property, that is to say that suit shall not be brought for the money, it must be held to be valid as against the father or the master, if the son or the slave has the unrestricted management of his own peculium; and the property concerning which the agreement was entered into is his peculium. This, however, is not altogether advisable, for since it is true, as Julianus holds, that he who has the management of his peculium granted him still has no right to dispose of it; it follows that if the agreement was made not to sue for the money for the purpose of giving it away, the contract should not be allowed to stand; but if he should obtain something, by way of consideration for making the contract, which is worth not less, or even more than he gives, the contract must be considered valid.

29 Ulpianus, On the Edict, Book IV. But if he lends his master’s money, Celsus says that what he agreed upon at the time of the loan is valid.

30 Gaius, On the Provincial Edict, Book I. Let us consider, with reference to the son of a family, whether the agreement is valid when he agrees not to bring suit, because sometimes the father of a family has a right of action, for example, for injury; however, where a father has a right of action on account of an injury done to his son, there is no doubt that if he wishes to bring suit he will not be barred by the agreement of his son. 1Where a man stipulated with a slave for money which Titius owed him, and brings suit against Titius, the question arises whether he can and should be barred by an exception on the ground of contract? Julianus thinks that he should be barred where the stipulator has a right of action against the master of the slave for his peculium, that is to say, if the slave has good ground for interposing, because, for instance, he owed the same amount to Titius. But where the slave intervenes as surety, a right of action is not granted for his peculium, on this ground; nor should the creditor be prevented from bringing suit against Titius. In like manner, he should, by no means, be prevented from doing so if he thought that the slave was a freeman. 2If I should stipulate with you under a condition for a sum which Titius owes me absolutely, and the condition should not be fulfilled, and I bring suit against Titius, can I and should I be barred by an exception based upon contract? The better opinion is that an exception cannot be interposed.

31 Ulpianus, On the Edict of the Curule Ædiles, Book I. It is allowed at all times to enter into a contract contrary to the Edict of the ædiles, whether this is done at the time of making the sale, or afterwards.

32 Paulus, On Plautius, Book V. Where it is stated that, when an agreement is made with the principal debtor that suit shall not be brought against him, the surety is also entitled to an exception; and this was established for the benefit of the debtor, to prevent an action of mandate being brought against him. Therefore, if no action of mandate will lie, for instance, because the party became a surety with the intention of donating the debt, it must be held that the surety is not entitled to an exception.

33 Celsus, Digest, Book I. A grandfather promised a dowry on behalf of his granddaughter by his son, and agreed that an action should not be brought for the dowry, either against himself or his son. Then, if an action for the dowry is brought against a party who is the co-heir of the son, the former cannot protect him by pleading an exception on the ground of contract; the son, however, can very properly make use of it, since a party is permitted to consult the best interest of his heir, and there is nothing in the way of his providing for one of his heirs, if he should become an heir, and not consult the interest of the others.

34 Modestinus, Rules, Book V. It is the opinion of Julianus that the right of agnation cannot be renounced, any more than anyone can say that he does not wish to be a proper heir.

35 The Same, Opinions, Book II. Two brothers, Titius and Mævius, and a sister Seia, divided an estate between them, which they held in common, and executed an instrument in which they stated that they divided the estate of their mother, and alleged that no property held in common by them remained. Afterwards, however, two of them, namely, Mævius and Seia, who were absent at the time of their mother’s death, learned that a sum of money in gold had been abstracted by their brother, of which sum no mention was made in the instrument of partition. I desire to know whether, after the agreement for partition was made, an action for the recovery of the money which had been abstracted would lie in favor of the brother and sister against the other brother? Modestinus answered that if, when they brought suit for a portion of the money which was said to have been abstracted by Titius, an exception was pleaded against them under a general contract, when they ignorantly agreed to the fraud which had been committed by Titius, they could avail themselves of a replication on the ground of fraud.

36 Proculus, Epistles, Book V. Where you are in possession of land belonging to me, and I make an agreement with you that you shall deliver possession of the same to Attius, and I bring suit to recover the property from you, I cannot be barred by an exception based upon contract, unless you have already delivered possession of the property, or the agreement between us made for your benefit, and it is not your fault that you did not deliver it.

37 Papirius Justus, On Imperial Constitutions, Book II. The Emperors Antoninus and Verus stated in a Rescript, “That a debtor to the Republic could not be released from payment by the curator, and that the release granted to the people of Philippi must be revoked.”

38 Papinianus, Questions, Book II. Public law cannot be changed by the contracts of private persons.

39 The Same, Questions, Book V. It was established by the ancients that where an agreement was obscure or ambiguous, it must be construed against a vendor and a lessor, because it was in their power to have stated the terms of the contract more clearly.

40 The Same, Opinions, Book I. A contract stated as follows: “I acknowledge that you are not bound”, is not limited to the person, but, since it is general, it will apply to heirs as well as litigants. 1Where a party who appeared entered into an agreement that, within a certain time, he would satisfy the judgment, if the sum which he agreed to pay by way of compromise was not paid within the time; the appellate judge, without reference to the principal point at issue, shall act upon this as a lawful agreement, just as if the party had admitted his liability. 2After the division of an estate and of its liabilities, where the different creditors have accepted interest from the separate co-heirs for the entire amount of the indebtedness, without any assignment of liabilities, as had been agreed upon; the right of action possessed by the creditors against each heir for his respective share shall not be interfered with, unless the heirs do not offer to pay the entire indebtedness to them, in compliance with the terms of the settlement. 3A father who promised a dowry to his daughter and agreed: “That if she should die after him without leaving any children, a portion of the dowry shall belong to her brother, who will be her heir”. If her father should afterwards have children, and make them heirs by his will, this agreement will give rise to an exception on the ground of fraud, since it was understood between the contracting parties that the heir should be provided for; and, at that time, when the father had no children, he appeared to express his last wishes for the benefit of the brother.

41 The Same, Opinions, Book XI. “If you will pay me a part of your debt by a certain time I will give you a release for the remainder, and discharge you from liability.” While no right of action exists under these circumstances, nevertheless, it is settled that the debtor has a right to an exception.

42 The Same, Opinions, Book XVII. It was agreed between a debtor and a creditor, “That the creditor should not assume the burden of paying the tax on land which was encumbered, but that the necessity of payment should be imposed upon the debtor”. I have answered that an agreement of this kind is not to be observed, so far as the Treasury is concerned, for it is not permissible that a rule of law affecting the Treasury should be overthrown in the interest of private individuals.

43 Paulus, Questions, Book V. In making sales we know what acts the debtor must perform on the one hand, and what the purchaser must do on the other; but if any different terms are inserted in the contract they must be observed.

44 Scævola, Opinions, Book V. Where a minor was about to reject the estate of his father, his guardian made an agreement with several creditors of the estate that they would accept a certain proportion of their indebtedness. The curators of the minor made the same compromise with other creditors; and I ask whether the guardian, being himself a creditor of the father, was entitled to retain the same proportion of the debt? I have answered that the guardian who had induced the other creditors to accept a percentage of what was due, ought himself to be content with a similar amount.

45 Hermogenianus, Epitomes of Law, Book II. A contract for partition, which has not been concluded by either delivery or stipulation, being a mere agreement without consideration, does not confer a right of action.

46 Tryphoninus, Disputations, Book II. An agreement entered into between an heir and a legatee, by which the latter agrees not to take security from the former, has been held to be valid; as a Constitution of the Divine Marcus recorded in the Semestria, sets forth that the will of the deceased shall be observed in this, as well as in other matters; and the release of security to the heir by the legatee under contract cannot be revoked if he changes his mind; as it is entirely lawful for a man to change for the worse his power to enforce his legal right, or his hope of future payment.

47 Scævola, Digest, Book I. The purchaser of a tract of land bound himself for the payment of twenty aurei, and agreed to this by stipulation; and afterwards, the vendor entered into an undertaking that he would be content with thirteen, and would accept payment of that amount within a specified time. Suit having been brought against the debtor for the payment of the latter sum, he agreed that, if it was not paid within another specified period, it could be collected from him in accordance with the bond first executed. The question arose as to whether the whole debt could not be collected under the first obligation, since the debtor had not complied with the terms of the later agreement? I answered that it could, in accordance with what had been stated. 1Lucius Titius had a confused account with Gaius Seius, a money broker, for the reason that he had received and paid him different sums. In the end, Seius owed him money, and Lucius Titius received a letter from him in the following words: “According to the broker’s account which you have with me up to this date, there remains in my hands as the result of many transactions the sum of three hundred and eighty six aurei, and the interest upon the same. I will return to you the amount which you have in my hands without agreement. If any instrument issued, that is to say, written, by you, remains in my hands for any reason, no matter what the amount therein may be, it shall be considered void and cancelled”. The question arose, since Lucius Titius had ordered Seius, the broker, to pay his patron three hundred aurei, before this letter was written, whether, according to the terms of the letter, by which all undertakings pertaining to any contract whatever were to be considered void and cancelled, it was provided that neither Seius nor his sons could be sued on this ground? I answered that if the account only included the receipts and payments, other obligations remained in the same condition.

48 Gaius, On the Law of the Twelve Tables, Book V. It is evident that every agreement made at the time of the delivery of property is valid.

49 Ulpianus, On Sabinus, Book XXXVI. When anyone loans money, and agrees that he will only bring suit against the debtor for the amount that he is able to pay, is such a contract valid? The better opinion is that this contract is valid, as there is nothing improper for anyone to consent to be sued for an amount which his means permit.

50 The Same, On Sabinus, Book XLIII. I do not think that it is inadmissible to insert in a contract of deposit loan, hire, and others of the same description, an agreement of this kind, namely: “You must not make my slave a thief”; that is to say, you must not solicit him to become a thief, or a fugitive, nor must you neglect him to such an extent that he will commit theft; for as an action will lie for the corruption of a slave, so this agreement which relates to the prevention of the corruption of slaves will stand.

51 The Same, On the Edict, Book XXVI. If you think that on account of a legacy you are obliged to make an agreement with your debtor that you will not bring suit against him; your debtor is not released by operation of law, nor can he bar your suit by means of an exception on the ground of contract, as Celsus has stated in the Twentieth Book. 1He also said in the same place, “If you think incorrectly that you are obliged to pay a legacy to Titius, and you direct your debtor to pay it to him, and the latter, being at the same time, his debtor, makes an agreement with Titius not to sue him; this will not extinguish your right of action against your debtor, or his against his debtor either.”

52 The Same, Opinions, Book I. A letter by which a party bound himself that a certain person was his co-heir, confers no right of action against parties in possession of the estate. 1If an agreement is made between a debtor and the party who purchased a tract of land held in pledge by the creditor, under the pretext that this was done on behalf of the debtor, so that the profits already obtained might be set off against the debt, and that the balance should be settled, and the tract returned to the debtor; then the heir must carry out the contract made by the deceased. 2An agreement which provides, “But where the creditor has paid any sums for taxes on real property held by him in pledge, he can recover the same from the debtor, and the debtor must pay any taxes due upon the same tract of land”; this is a legal contract and therefore must be observed. 3Where a party was about to bring suit to set aside an inofficious will made by his father, and an agreement was entered into that he should receive a certain sum of money as long as the heir lived, an attempt was made to have this agreement construed as a perpetual obligation; but it was stated in a rescript that a claim of this kind could not be admitted on any ground of law or equity.

53 The Same, Opinions, Book IV. It is entirely proper to advance the expenses of a suit to a party engaged in litigation, but it is not legal to enter into an agreement that the sum expended for that purpose shall not be paid with lawful interest, but that half the amount recovered by the suit shall be paid.

54 Scævola, Notes on Julianus, Digest, Book XXII. If I agree not to make a claim for Stichus, to whom I am entitled, it is not understood that my debtor is in default; and if Stichus dies, I do not think that the defendant is liable, if he was not in default before the contract was entered into.

55 Julianus, Digest, Book XXXV. Where a debtor has an usufruct in a slave, and the slave in whom he enjoys said usufruct makes an agreement that suit shall not be brought against the debtor, by doing so he improves the condition of the latter. Likewise, if a creditor possesses such an usufruct, and agrees not to bring suit, and the slave then agrees that the creditor may do so, the creditor, by virtue of the agreement made by the slave, can properly claim the right to bring an action.

56 The Same, On Minicius, Book VI. Where for some reason an agreement is made that a landlord shall not sue his tenant, and there is good cause for such an agreement, the tenant, nevertheless, can bring an action against his landlord.

57 Florentinus, Institutes, Book VIII. Where a man accepts interest from a debtor in advance, it is held to be a tacit agreement that he will not bring suit for the principal during the time for which the interest is paid. 1Where a contract is drawn up in such a way that it is personal on one side, and relates to property on the other; as, for instance, that I will not bring suit, or that you shall not be sued; my heir will then have a right of action against all of you, and all of us will have a right of action against your heir.

58 Neratius, Parchments, Book III. There is no doubt that the parties can withdraw in all contracts relating to purchase, sale, leasing, hiring, and other similar obligations, where everything remains the same by the common consent of those who have bound themselves. The opinion of Aristo goes still farther, for he thinks that if I have performed all the acts which it was necessary for me to perform as vendor, with regard to the property sold to you; and, while you still owe me the purchase money, it is agreed between us that you shall restore to me everything relating to the property sold, which was delivered to you by me, and that you shall not pay the purchase money; and, in accordance with this, you do return it to me, you will cease to owe me the money; because good faith which governs matters of this kind admits of this interpretation and agreement. It does not matter whether the agreement is made to abandon the contract, all things as to which we bound ourselves remaining the same; or whether you return everything which I delivered to you, and we then agree that you shall not give me anything on account of the contract. It is certain that the following cannot be accomplished by a contract which has reference to annulling what has been done; that is, that you may be compelled to return to me what I have already given you; since, in this way, the business would be transacted not so much by annulling our former contract, as by creating new obligations between ourselves.

59 Paulus, Rules, Book III. Whenever any benefit can be obtained by us through a stipulation, it is established that our condition is improved by agreements made by the same parties.

60 Papirius Justus, Constitutions, Book VIII. The Emperor Antoninus stated in a Rescript to Avidius Cassius: “That if creditors would be satisfied with a portion of their debts out of an estate, even though this was done through a stranger, those who were nearly related to the deceased must be first considered, if they were solvent”.

61 Pomponius, On Sabinus, Book IX. No one, by entering into an agreement, can bring it about that he will not be able to consecrate his own ground, or bury a corpse on his own land, or dispose of his property without the consent of his neighbor.

62 Furius Anthianus, On the Edict, Book I. Where a debtor, after having agreed that suit shall not be brought against him for the debt (in such a way that the contract also benefits the surety), made another contract that suit may be brought against him; the question arose as to whether the surety was deprived of the benefit of the first agreement? It is the better opinion that where the right to an exception has been once acquired by the surety, it cannot afterwards be taken from him without his consent.