1Gaius, Golden Matters, Book II. Obligations arise whether from contract, from crime, or from various other causes by operation of law. 1Obligations arise from contracts either by words or by consent. 2In the case of a loan for consumption, the obligation is contracted with reference to the property lent. Such a loan consists of articles which can be weighed, counted, or measured; as, for instance, wine, oil, grain, and money; we also lend things in such a way that their ownership vests in the person who receives them with the expectation that other articles of the same kind and quality will be given us in return. 3He to whom we lend anything for use is liable to us on account of the transfer of the property, but he is also obliged to restore the very same thing which he received. 4Ad Dig. 44,7,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.He, however, who has received a loan for consumption, still remains liable if he loses what he receives by any accident whatsoever; but anyone who receives an article for use is released from liability if he loses what he received by an accident which human weakness could not provide against (as, for example, by fire, by the falling of a building, or by shipwreck). He is, nevertheless, held to the strictest diligence in taking care of the article loaned; nor will it be sufficient if he loses what he received by an accident which human weakness to his own property, provided another could have exercised greater vigilance in its preservation. He is also liable for occurrences which could not be prevented when it was his fault that the property was lost; for instance, if anyone, having invited his friends to supper, should borrow silverware for that purpose and then, having gone on a journey and taken the silverware with him, should lose it, either by shipwreck or by an attack of robbers or enemies. 5He, also, with whom we deposit property is liable to us for it, and is obliged to return the same article which he himself received. If, however, he should, through negligence, lose what was entrusted to his care, he will be free from liability, as he did not receive it for his own benefit, but for that of the person from whom he obtained it, and he will only be responsible if any of it was lost through fraud. He, however, will not be liable on the ground of negligence, who entrusted his property to a friend of his, who was careless, for he has only himself to blame. Still, it has been decided that gross negligence is included in the offence of fraud. 6A creditor who has received property in pledge is also liable on this ground, and is obliged to return the very same article which he received. 7An obligation is verbally contracted by question and answer; as when we stipulate that something shall be paid to or done for us. 8Anyone can be bound either in his own name or in that of another. Where a person is bound in the name of another, he is called a surety, and we frequently bind a man in his own name, and receive others from him who are bound by the same obligation, in which way we provide for the better discharge of an obligation which is contracted for our benefit. 9If we stipulate for something to be given to us, which is of such a nature that this cannot be done, it is evident that such a stipulation is void by natural law; as, for example, if an agreement is entered into for the delivery of a freeman, or for that of a slave who is dead, or for a house which has been burned, and this is done between parties who did not know that the man in question was not free, or that the slave was dead, or that the house had been destroyed by fire. The rule is the same if anyone should stipulate for the transfer of a sacred or religious place to himself. 10A stipulation is also void if a person contracts for property which belongs to himself, not knowing that this is the case. 11It is also established that a stipulation made under an impossible condition is void. 12It is clear, by natural law, that the act of an insane person who makes either a stipulation or a promise is of no effect. 13He resembles a child who is of such a tender age that he does not yet comprehend what he is doing. The law, however, is more indulgent to him, for anyone who can speak is believed to be capable of making a valid stipulation or promise. 14It is perfectly clear that a mute cannot contract a verbal obligation. 15The same rule also applies to a person who is deaf, for, if he can speak or promise, he should hear the words of the stipulator; but if he stipulates, he should hear the words of the promisor. Hence it is apparent that we are not speaking of one who hears with difficulty, but of one who does not hear at all.

2The Same, Institutes, Book III. Obligations are contracted by consent in the case of purchases, sales, hirings, leases, partnerships, and mandates. 1We say that obligations are contracted by consent in these ways, because formality of words or writing is not essential; but it is sufficient for those who transact the business to consent. 2Hence such obligations may be contracted between parties who are absent, as, for instance, by letter or by messenger. 3Moreover, in contracts of this description each of the parties is bound to the others for whatever should be done, consistent with justice and good faith.

3Paulus, Institutes, Book II. The nature of obligations does not consist in the fact that they render some property or some servitude ours, but that they require us to give something, to do something, or to be responsible for something. 1In the case of a loan in order for the obligation to be contracted it is not sufficient for the money merely to be given and received, but it must be given and received with the understanding that this will be the case. Therefore, if anyone gives his money to me as a donation, although it belongs to the donor, and passes into my hands, still I am not liable to him for it, because this was not our intention. 2A verbal obligation is also contracted, if this was the intention of the parties; for instance, if I should say to you by way of jest, or for the purpose of explaining what a stipulation is, “Do you promise me So-and-So?” and you answer, “I do promise,” an obligation will not arise.

4Gaius, Diurnal or Golden Matters, Book III. Obligations also arise from criminal acts, for example, from theft, damage, robbery, injuries, all of which offences are of the same kind, for they are all derived from the matter itself, that is to say from the offence; while, on the other hand, obligations arising from contract are not only derived from the transfer of the property, but also from the words and the consent of the parties.

5The Same, Golden Matters, Book III. Where anyone who transacts the business of an absent person performs some act by virtue of a mandate, it is evident that, from the contract which is made, actions on mandate will lie between the parties, in which each of them can prove how one should act toward the other in compliance with the rules of good faith. If, however, the agent acts without a mandate, it has been decided that the parties will be mutually liable; and, on this account, proceedings have been introduced which we designate actions based on voluntary agency, by means of which we can compel one another to do whatever justice and good faith demand. Actions of this kind, however, do not arise either from contracts or from crimes, for he who transacts the business of another during his absence is believed to have made an agreement with him previously; and it is no breach of the law to undertake to transact the business of another without a mandate. Thus, it can still be said that he whose business has been transacted without his knowledge has either made a contract or committed a criminal offence; but through motives of convenience it has been established that the parties are liable to one another. This rule has been adopted for the reason that men frequently depart for foreign countries with the intention of speedily returning, and, on this account, do not commit the care of their business to anyone; and afterwards, through the occurrence of unforeseen events, they are necessarily absent for a longer time than they expected to be, and it is unjust that their business should suffer which would, indeed, happen if the person who offered to attend to their affairs should not be entitled to an action to recover any expense which he had properly paid out of his own purse; or if he whose affairs had been transacted should have no right of action against him who took charge of his business without authority. 1Those who are liable to an action on guardianship are not, properly speaking, considered to be bound on account of contracts, as no agreement is entered into between guardian and ward. But, for the reason that they cannot be held responsible on account of a criminal offence, they are considered to be liable under a quasi contract. In this case, also, the actions are reciprocal. For not only can the ward bring suit against his guardian, but, on the other hand, the guardian is entitled to an action against his ward, if he has expended anything upon the property of the latter, or becomes responsible for him, or encumbered his own property to one of his creditors. 2An heir who owes a legacy is not understood to be liable either on account of a contract or a crime, for a legatee is not understood to have made any contract with the deceased, or with his heir, and it is perfectly clear that no criminal offence has been committed in a case of this kind. 3He, also, who, through the mistake of the person who made the payment, received something to which he was not entitled, is bound as in the case of a loan, and is liable to the same action as that to which a debtor is liable to his creditor. It should not, however, be understood that he who is responsible in a case of this kind is bound by a contract; for anyone who pays money by a mistake does so rather with the intention of discharging an obligation than of contracting one. 4If a judge should render an improper decision, he is not, strictly speaking, considered to be liable on account of a crime, nor is he bound by virtue of a contract; still, as he has committed a fault, even if this was done through ignorance, he is considered to be liable on account of a quasi offence. 5He, also, is considered to be liable on account of a quasi offence, if, from an apartment which belongs to him, or which he has leased, or occupies gratuitously, he throws down, or pours out anything so that it injures a passer-by. Hence, he cannot properly be understood to be liable on account of having committed an offence, because very frequently he is responsible for the carelessness of another, for instance, for that of a slave, or a child. He resembles one who places or hangs something in a part of the house under which people are accustomed to pass, and which may injure someone, if it should fall. Therefore, if a son under paternal control, who lives separately from his father, should throw down or pour out anything from his apartment, or should place or hang anything above the street which threatens injury to the passers-by, it is the opinion of Julianus that an action should be granted against the son himself, and that neither an action De peculia nor a noxal action should be granted against the father. 6Likewise, the master of a ship, or the proprietor of a tavern or an inn, is held to be responsible for a quasi criminal offence for any damage or theft which may be committed on board the ship, or in the tavern or inn, provided he does not himself commit the offence, but someone does whom he employs on the ship, or in the tavern or inn; for as this action cannot be brought against him on account of a contract, and as he is, to a certain extent, guilty of neglfgence for making use of the services of bad men, he is considered to be liable on account of the quasi criminal offence.

6Paulus, On Sabinus, Book IV. In all temporary actions, my liability is not ended until the last day has entirely expired.

7Ad Dig. 44,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 335, Note 23.Pomponius, On Sabinus, Book XV. Actions cannot be granted to a son against his father as long as he remains under his control.

8Ad Dig. 44,7,8ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.The Same, On Sabinus, Book XVI. An obligation contracted under the following condition, “If I wish,” is void; for when you cannot be compelled to give anything unless you desire to do so, it is just as if nothing had been said. The heir of anyone who makes a promise, and who never expects to perform it, is not liable, because this condition has never been complied with, so far as the promisor himself is concerned.

9Paulus, On Sabinus, Book IX. A son under paternal control is not entitled to an action in his own name, except for the reparation of injury sustained, and where he has been deprived of property by violence or clandestinely, or to recover property which he has deposited or lent; which is the opinion of Julianus.

10Ad Dig. 44,7,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 288, Note 11.The Same, On Sabinus, Book XLVII. Natural obligations should not be considered merely because no action can be brought on account of them, but also for the reason that where money has been paid which was not due it cannot be recovered.

11The Same, On Sabinus, Book XII. Whatever acts we perform which derive their origin from our contracts are void, unless the beginning of the obligation is ours personally; and hence we can neither stipulate, purchase, sell, or contract in such a way that another can properly bring an action on this ground in his own name.

12Pomponius, On Sabinus, Book XXIX. An heir is liable in full where fraud has been committed by the deceased in contracts of deposit, loan for use, mandate, guardianship, and voluntary agency.

13Ulpianus, Disputations, Book I. Actions in factum can even be brought by a son who is under paternal control.

14Ad Dig. 44,7,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 26.The Same, Disputations, Book VII. Slaves are responsible for their crimes, and remain so even after their manumission; they are not, however, civilly liable for their contracts, still, they are bound, and they bind others in accordance with natural law. Finally, I shall be released from liability if, after a slave has been manumitted, I pay him a sum of money which he has lent me.

15Julianus, Digest, Book IV. A certain man who brought an action against an heir was barred by an exception on the ground that the will was about to be set aside for the reason that possession of the estate could be granted to an emancipated son. The said emancipated son having failed to demand possession of the estate, the creditor could very properly ask that his right of action against the appointed heir should be restored to him, for as long as the possession of the estate could be granted to the son contrary to the provisions of the will, the heir, to a certain extent, was not a debtor.

16The Same, Digest, Book XIII. A man borrowed a sum of money from a slave forming part of an estate, and gave him by way of pledge a tract of land or a slave, and having requested that the land or the slave be retained by him under a precarious title, he kept possession of it under such a title. He did this because a slave belonging to an estate acquired property for it by accepting delivery of the same; and by granting property under a precarious title, the result is that it cannot be acquired by usucaption. For if he had lent the property for use, or deposited it, and it had formed part of his peculium, he would have the right to bring an action on loan or deposit for the benefit of the estate. This occurs where the contract was made with reference to his peculium, for it should be understood that possession of property is acquired under such circumstances.

17The Same, Digest, Book XLVII. All debtors who owe property for a valid consideration are released where the property comes into the hands of creditors in some other way from which they obtain pecuniary benefit.

18The Same, Digest, Book LIV. If anyone, who has stipulated to give Stichus, becomes the heir of a person who is entitled to the said Stichus under the terms of a will, and he brings suit under the will to recover Stichus, he does not annul the stipulation. On the other Rand, if he brings an action to recover Stichus under the stipulation, he will still be entitled to one under the will; because in the beginning, these two obligations were contracted in such a way that if one of them was brought into court, the other would, nevertheless, remain unimpaired.

19Ad Dig. 44,7,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 343, Note 8.The Same, Digest, Book LXXIII. A lucrative title is not considered to arise from the promise of a dowry, for the reason that he who claims the dowry is understood to be, to a certain extent, a creditor or a purchaser. However, when a creditor or a purchaser obtains property by some lucrative title, he still retains the right to the action to recover it; just as, on the other hand, a person who does not obtain the property by a lucrative title is not prevented from bringing an action to recover it on this account.

20Alfenus, Digest, Book II. A slave should not, under all circumstances, go unpunished, where he has listened to the commands of his master; for instance, when the latter has ordered him to kill someone, or to commit a theft. Wherefore, although a slave may commit piracy by order of his master, he should be prosecuted for doing so after he has obtained his freedom; and any act of violence which he may have committed, which is criminal, will render him liable to punishment. If, however, a quarrel arose on account of a controversy or a dispute, or force was employed for the purpose of maintaining a right to which his master was entitled, and no crime was perpetrated, then the Prætor should not grant an action on this ground against a freedman, who, when a slave, had obeyed the commands of his master.

21Julianus, On Minicius, Book V. Everyone is considered to have made a contract in the place where he bound himself to pay.

22Africanus, Questions, Book III. When anyone stipulates for merchandise, and accepts a surety to be furnished on a certain day, the time must be computed from the day when he received the security.

23Ad Dig. 44,7,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 10.The Same, Questions, Book VII. A stipulation was entered into with reference to money to be employed in commerce, and as is customary, a penalty was inserted therein for the purpose of indemnifying the person who furnished the money, if it should not be paid by the specified time. The latter demanded the money, and a part of it having been paid, he neglected to demand the remainder then, but, after the lapse of some time, he did demand it. A jurist, having been consulted, gave it as his opinion that the penalty could be collected for the time during which the debtor had not been notified to pay, and that this could even be done if he had not been notified at all; and that the stipulation would become inoperative only where the debtor was responsible for payment not having been made. Otherwise, it must be said that, if he who had begun to push the claim should cease to do so because he was prevented by illness, the penalty would not attach. Hence, a doubt may arise, if the debtor, having been notified to pay, should himself be in default, whether the penalty would not attach, even though he afterwards tendered the money. This may be said to be more equitable, for if an arbiter appointed to arrange a settlement should order the money to be paid by a certain time, and he whom he ordered to pay it is not in default, it is held that the penalty will not attach; and therefore, Servius very properly held, if the day when the money was to be paid was not included in the decision of the arbiter, a reasonable time should be held to have been granted. The same rule will apply where anything has been sold under the condition that, unless the price is paid by a certain time, the transaction will be void.

24Pomponius, Rules. If I borrow a sum of money from an insane person, believing that he is of sound mind, and I employ that money for my own benefit, the insane person will be entitled to an action to recover it. For, as rights of action are acquired by us under certain circumstances, when we are not aware of the fact, so, under similar circumstances, actions can be brought in the name of insane persons; for example, if the slave of such a person enters into a stipulation, or property is stolen from him, or he is injured in such a way that suit can be brought under the Aquilian Law; or if he is a creditor, and his debtor should convey property to someone with the intention of defrauding him. The same rule is applicable where a legacy is bequeathed to an insane person, or property is left to him under the terms of a trust. 1Likewise, if anyone who has lent money to the slave of another afterwards becomes insane, and the slave employs the borrowed money for his master’s benefit, the insane person will be entitled to an action to recover it. 2Again, if anyone who has lent money belonging to another should afterwards become insane, and the money be expended, an action to recover it will be acquired by the insane person. 3Anyone who transacts the business of an insane person is liable to him in an action on the ground of voluntary agency.

25Ulpianus, Rules, Book V. Ad Dig. 44,7,25 pr.ROHGE, Bd. 9 (1873), S. 33: Zulässigkeit der Klagen auf Feststellung eines obligatorischen Verhältnisses.ROHGE, Bd. 9 (1873), S. 33: Klagen auf Feststellung eines obligatorischen Verhältnisses.There are two kinds of actions, one a real one, which is styled vindictio, and the other a personal one, which is called condictio. The real action is that by which we sue for property belonging to us which is in the possession of another, and it is always brought against the party in possession. The personal action is one which we bring against a person who is bound to do something for, or give something to us, and it is always against him that it is brought. 1Some actions are based on contract, others on an act, and others still are in factum. An action is founded upon a contract whenever one person has entered into an agreement with another for his own advantage; as, for instance, by a purchase, a sale, a hiring, a lease, and other transactions of this kind. An action based on an act is where anyone is liable for some offence which he himself has committed; for instance, a theft or an injury, or for some damage which he has caused. An action in factum is, for example, one which is granted to a patron against his freedman, by whom he has been brought into court in violation of the Prætorian Edict. 2All actions are said to be either civil or prætorian.

26The Same, On Taxes, Book V. All penal actions pass to heirs, after judicial proceedings have been instituted.

27Papinianus, Questions, Book XXVII. Obligations which are not valid themselves cannot be rendered so either by the decision of the judge, the order of the Prætor, or the power of the law.

28The Same, Definitions, Book I. The claim made against a person is designated an “action;” one made against a thing is called a “petition,” the term “pursuit,” instituted for the purpose of recovering the property, is employed both against things and persons.

29Paulus, Opinions, Book IV. A certain sum of money was due to Lucius Titius under a judgment. He lent the same debtor another sum of money, and in taking security for its payment, he did not mention that the amount due under the judgment should also be given to him. I ask whether Lucius Titius is entitled to both actions. Paulus answered that there is nothing in the case stated why both rights of action should not remain unimpaired.

30Scævola, Opinions, Book I. Where a man has been reduced to slavery, and afterwards obtains his freedom through the indulgence of the Emperor, he cannot, for this reason, be said to assume his obligations to his creditors.

31Marcianus, Trusts, Book II. Not only stipulations, but also any other contracts which have been made under impossible conditions are considered to be of no force or effect; as, for instance, sales or leases, where they are dependent upon impossible events, are also void; because when an agreement is made between two or more persons the intention of all of them is taken in account, and there is no doubt that they think a contract of this kind cannot be executed, if a condition is imposed which they know to be impossible.

32Ad Dig. 44,7,32Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 9.Hermogenianus, Epitomes of Law, Book II. When several actions arise from one single crime, as happens when trees are said to be cut down by stealth, it was established, after many differences of opinion, that proceedings could be instituted against all the parties.

33Paulus, Decrees, Book III. While it has been set forth in certain Imperial Constitutions that heirs, generally speaking, are not liable to a penalty, it has, nevertheless, been decided that if the deceased had been sued during his lifetime, his heirs will be subject to the penalty, on the principle that issue had been joined with the deceased.

34The Same, On Concurrent Actions. Anyone who strikes the slave of another in such a way as to injure him becomes liable by his act to a suit under the Aquilian Law, as well as to one for the reparation of damage, for injury is intentionally-committed, and damage is caused by negligence; therefore both actions will lie. There are, however, certain authorities who hold that when one of these actions is chosen, the other is lost; and others are of the opinion that if the action under the Aquilian Law is selected, the one for the reparation of damage will be lost; since it ceases to be proper and equitable for judgment to be rendered against him who has paid the amount of damages appraised. If, however, the action for reparation of damage has already been brought, the party will still be liable under the Aquilian Law. This opinion should be restricted by the Prætor, unless suit is brought for the excess that can be obtained under the Aquilian Law. Hence it is more reasonable to admit that the plaintiff can make his choice of the actions, and afterwards employ the other to collect anything more than he can obtain by the first one. 1If anyone steals an article which I have lent to him for his own use, he will be liable both to an action on loan, and to a personal action to recover the property, but either one of these proceedings annuls the other, either by operation of law, or by the pleading of an exception; which is the better opinion. 2Hence it was held with reference to the tenant who had stolen something belonging to the land, that he was liable both to an action for the recovery of the property, to one for theft, and to one on the lease. The penalty of theft is not merged, but the other two actions are. This is applicable to the proceeding under the Aquilian Law; for if I lend you clothing, and you tear it, both actions will lie to recover the property. After suit under the Aquilian Law has been brought, the right to sue on the loan is extinguished; and after the action on the loan is instituted, there is some doubt as to whether the one under the Aquilian Law cannot be brought within thirty days, for the reason that it is more advantageous. The better opinion is, that the right to bring it is retained, because it adds to the simple value of the property, and if the simple value has been paid, there will be no ground for bringing it.

35The Same, On the Principal Edict, Book I. With reference to prætorian actions, Cassius says that it must be held that such as permit the pursuit of the property may be granted after a year has expired, and the others within the year. Prætorian actions, however, which are not granted after the year has elapsed, are not available against an heir; still, any profit which he has acquired may be exacted from him, just as happens in an action on the ground of fraud, in the interdict Unde vi, and in other proceedings of this description. These include the pursuit of the property, by which we endeavor to recover anything which has been taken from our patrimony, and when we proceed against the possessor of the estate of our debtor. The Publician Action, which is granted for the purpose of recovering property, is also the same kind. Where, however, this action is granted on the ground that usucaption has been interrupted, the right is extinguished within a year, because it is granted contrary to the principles of the Civil Law. 1An action on a contract made by municipal magistrates is granted against the duumvirs and the municipality after a year has elapsed.

36Ulpianus, On the Edict, Book II. In personal suits for the recovery of property, a judgment does not always imply disgrace, even though it may be rendered in cases involving infamy.

37The Same, On the Edict of the Prætor, Book IV. In the term “action” are included real, personal, direct, equitable, and prejudicial actions, as Pomponius says, and also prætorian stipulations, because they take the place of actions, as well as proceedings to provide against threatened injury, to insure the payment of legacies, and others of this kind. Interdicts are also embraced in the term “action.” 1Mixed actions are those in which both parties are plaintiffs; as, for example, such as are instituted for the settlement of boundaries, suits in partition, and for the division of property owned in common, and the interdicts Uti possidetis and Utrubi.

38Paulus, On the Edict, Book III. We are not bound by the form of the letters, but by the meaning which they express, as it has been decided that writing shall not have less validity than what is meant by words uttered by the tongue.

39Gaius, On the Edict, Book III. A son under paternal control, like the head of a household, is bound by all kinds of titles, and suit can be brought against him on this ground, just as can be done against a person who is independent.

40Paulus, On the Edict, Book XI. Legacies are considered as claims against an estate, although they begin to be payable by the heir.

41The Same, On the Edict, Book XXII. Whenever the law introduces an obligation, unless it is especially provided that we shall only make use of one action, even ancient actions will lie for this purpose. 1If two actions for the same cause can be brought, and the plaintiff could have recovered a larger sum by making use of the other, which he did not bring, it will be the duty of the court to render a decision in his favor for that amount; but if he could only have recovered the same sum, or less, the second action will be of no advantage to him.

42Ulpianus, On the Edict, Book XXI. A person, to whom a legacy was bequeathed under a condition is not a creditor of the estate while the condition is pending, but only after it has been fulfilled; although it is established that anyone who stipulated under a condition remains a creditor while that condition is in abeyance. 1We should understand creditors to be those who are entitled to a civil action (provided they cannot be barred by an exception), or a prætorian action, or an action in factum.

43Paulus, On the Edict, Book LXXII. The head of a household that has arrived at the age of puberty, who is his own master, and of sound mind, can obligate himself. A ward cannot become liable under the Civil Law without the authority of his guardian. A slave cannot be bound by a contract.

44The Same, On the Edict of the Prætor, Book LXXIV. There are four different kinds of obligations, for they are contracted with reference to a certain time, or under a certain condition, or with reference to a certain measure, or dependent upon certain results. 1There are two things to be taken into consideration with reference to time, for the obligation either begins or terminates at a certain date. It begins at a certain date, for instance, as follows, “Do you promise to pay me such-and-such a sum on the Kalends of March?” The nature of this obligation is that the amount cannot be collected before the specified time. When it is made within a certain time, for example, as follows, “Do you promise to pay me between now and the Kalends of March?” it is established that neither an obligation nor a legacy can be contracted for a time, since when anything begins to be due to another, it ceases to be due under certain circumstances. It is clear that a stipulator can be barred by an exception on the ground of his agreement, or on account of fraud, after the time has expired. Likewise, if anyone, while delivering a tract of land, should say that he conveys the soil without the building upon it, this will not prevent the building, which by nature is attached to the soil, from passing with it. 2A condition is effectual which was inserted in the obligation at the time when it was contracted, and not after it had been perfected; as, for instance, “Do you promise to pay me a hundred aurei if a ship does not arrive from Asia?” In this case, however, if the condition should be fulfilled, there would be ground for an exception based on an informal agreement, or on fraud. 3The measure of an obligation becomes apparent when we stipulate for ten aurei or a slave, as the delivery of either one of these disposes of the entire contract, and one of them cannot be demanded as long as both are in existence. 4The result of an obligation has reference to either a person or a thing; to a person where I stipulate that payment shall be made either to me or to Titius; to a thing where I stipulate than ten aurei shall be paid to me, or a slave shall be delivered to Titius; and, in this instance, the question arises whether, when the slave is delivered to Titius, he becomes free by operation of law. 5When I stipulate as follows, “If you do not give me such-and-such a tract of land, do you promise to pay me a hundred aurei?” only the sum of a hundred aurei is the object of the stipulation, but the transfer of the land is one way of discharging the obligation. 6If I stipulate for the building of a ship, and if you do not build it that you should pay me a hundred aurei, let us see whether or not there are two stipulations, one absolute, and the other conditional; and if the condition of the second one is fulfilled, whether it will not annul the first; or whether it will not incorporate it into itself, and become, as it were, a renewal of the first. The last is the better opinion.

45The Same, On Plautius, Book III. When a man, who owes Stichus under a stipulation, manumits him before being in default, and the slave dies before the promisor is sued for not delivering him, the latter will not be liable. For he is not considered to be to blame because he did not deliver the slave.

46The Same, On Plautius, Book VII. An insane person and a ward are liable without the authority of their curator or guardian, where the obligation arises from the property itself; as, for instance, if I hold a tract of land in common with one of them, and have incurred some expense with reference to it, or the ward has damaged it in some way, he will be liable to an action in partition.

47The Same, On Plautius, Book XIV. Arianus says that there is a great deal of difference between the question whether anyone is liable or has been released. When inquiry is made with reference to the existence of liability, we should be more inclined to deny that this is the case, if we have any occasion to do so. When, on the other hand, the question is with reference to being released, the tendency should be in favor of it.

48The Same, On Plautius, Book XVI. In any transactions in which speech is not necessary, consent will be sufficient; and in matters of this kind a deaf person can take part, for the reason that he can understand and give his consent, as in hiring, leases, purchases, and other similar contracts.

49The Same, On Plautius, Book XVIII. Actions arising from contracts are granted against heirs, even where some crime is involved; as, for example, where a guardian has been guilty of bad faith in administering his trust, or where someone with whom property was deposited has committed fraud. In this, instance, even if a son under paternal control or a slave has committed a fraudulent act of this kind, an action De peculio, and not a noxal action, will be granted.

50Pomponius, On Plautius, Book VII. When anyone promises to pay a sum of money within a year, or has judgment rendered against him requiring him to do so, he can pay it on any day during the year.

51Celsus, Digest, Book III. An action is nothing else but the right to recover what we are entitled to by means of a judicial proceeding.

52Modestinus, Rules, Book II. We contract an obligation either with reference to the property itself, or by words, or by both of these at the same time, or by consent, or by the Common Law, or by Prætorian Law, or by necessity, or by a criminal offence. 1We contract an obligation on account of the property, when it is delivered to us. 2We contract one by words, where a question is asked, and a proper answer is given. 3We contract an obligation on account of the property and by words, where the property is delivered, and answers to questions are given at the same time. 4When we consent to anything, we are necessarily liable on account of our voluntary acquiescence. 5We contract an obligation by the Common Law, when we obey the laws in accordance with what they prescribe, or we violate them. 6We contract an obligation by Prætorian Law when something is ordered to be done or prohibited by the Perpetual Edict, or by the magistrate. 7Those contract an obligation by necessity who cannot do anything else than what they are directed to do. This happens in the case of a necessary heir, 8We contract an obligation on account of a criminal offence, where the principal part of the inquiry has reference to the illegal act committed. 9Even simple consent will be sufficient to establish an obligation, although it may be expressed by words. 10Many obligations are contracted merely by signs of assent.

53The Same, Rules, Book III. Ad Dig. 44,7,53 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 9.Several offences committed with reference to one and the same thing give rise to different actions; but it is established that all of them cannot be employed, and if several causes of action arise from one obligation, one alone, and not all, should be made use of. 1When we make the general statement in an obligation, “Or for the benefit of him to whom the property shall belong,” we include not only persons who have been arrogated, but also others who may succeed to us by any other right.

54The Same, Rules, Book V. Fictitious contracts are not legally binding, even in the case of sales, for the reason that they are only simulated, and are not based on truth.

55Javolenus, Epistles, Book XII. In all matters having reference to the transfer of ownership, the concurrence and the intention of both contracting parties must exist; for in sales, donations, leases, or any other kind of contracts, unless both parties agree, anything which has been begun will have no effect.

56Pomponius, On Quintus Mucius, Book XX. Any actions to which I may be entitled through the agency of my slave, whether they are derived from the Law of the Twelve Tables, or from the Aquilian Law, or can be brought on account of injury or theft committed, will continue to exist, even if the slave should afterwards be either manumitted or alienated, or should die. A personal action for the recovery of property which has been stolen by the said slave will also lie, unless I, having obtained possession of him, should either alienate or manumit him.

57The Same, On Quintus Mucius, Book XXXVI. In all agreements which have been made, whether they were entered into in good faith or not, if any mistake has arisen through a misunderstanding of the parties, that is, if he who purchased or leased the property differed in opinion from him with whom he made the contract, the transaction will be void. The same rule should be adopted in the formation of a partnership, so that if the partners think differently, one holding one opinion and the other another, the partnership will not be valid, as it depends upon the consent of the parties.

58Callistratus, The Minority Edict, Book I. It must be remembered that where issue has been joined in a case, it passes against the heir and other persons of this kind.

59Licinius Rufinus, Rules, Book VIII. A ward, through borrowing money, does not render himself liable by natural law.

60Ad Dig. 44,7,60Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 9.Ulpianus, On the Edict, Book XVII. Where penal actions relating to the same sum of money are concurrent, one of them never annuls the other.

61Scævola, Digest, Book XXVIII. The agent of Seius sent a note to a goldsmith, at the bottom of which were the following words: “I, Lucius Kalendius, have approved what was written above, and a balance of so much is due from us to So-and-So.” I ask whether this would bind Gaius Seius? The answer was that if Seius was not otherwise bound, he would not be liable for what was stated in this document. 1Seia, desiring to pay a salary to Lucius Titius, sent him the following letter: “To Lucius Titius, Greeting. If you are of the same mind, and entertain the affection for me which you have always done, sell your property and come to me as soon as you receive this letter. I will pay you ten aurei every year, as long as I live, for I know how much you love me.” If Lucius Titius should sell his property and go to her, I ask whether the annual salary mentioned in the letter could be collected by him. The answer was, that an investigation must be made with reference to the rank of the persons, and their motives, in order to determine whether an action should be granted.