1Ulpianus, On Sabinus, Book XLVIII. A stipulation cannot be made except by the words of the two contracting parties, and hence neither anyone who is dumb or deaf, nor a child, can enter into a stipulation; nor can an absent person do so, because the parties must understand one another reciprocally. Therefore, if any one of these persons wishes to make a stipulation, let him do so by means of a slave who is present at the time, and the latter will acquire for him the action based on the stipulation. Likewise, if anyone desires to bind himself, let him order that this shall be done, and he will be bound by his order. 1Where one of the parties present asks a question, and departs before an answer is given him, he renders the stipulation void. If, however, he asks the question while present, and departs, and on his return is answered, he will bind himself, for the intermediate time did not vitiate the obligation. 2Ad Dig. 45,1,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14; Bd. II, § 289, Note 1.If anyone should ask a question as follows: “Will you pay?” and the other answers “Why not?” the latter binds himself. This will not be the case if he assents without speaking, for he who assents in this manner is bound not only civilly but naturally; and therefore it is very properly said that even his surety does not become liable for him. 3If anyone, having been simply interrogated, should answer, “If such-and-such a thing is done, I will pay,” it is certain that he will not be bound. And if he should be asked, “Will you pay before the fifth kalends” and he answers, “I will pay on the ides,” he will also not be bound, for he did not answer with reference to what he was asked; and vice versa, if he should be asked under a condition and should answer absolutely, it must be said that he will not be liable. If anything is added or taken from the obligation, it must always be held that it was vitiated, unless the stipulator should immediately accept the difference in the answer; for then a new stipulation will be considered to have been made. 4If when I stipulate for ten aurei, and you answer twenty, it is certain that an obligation is only contracted for ten. On the other hand, if I ask for twenty, and you answer ten, the obligation will only be contracted for ten; for although the amounts must agree, still it is perfectly clear that twenty and ten are involved. 5If I stipulate for Pamphilus, and you promise both Pamphilus and Stichus, I think that the addition of Stichus should be considered superfluous. For when there are as many stipulations as objects, there are, as it were, two stipulations, one of which is useful and the other useless, and the useful one is not vitiated by that which is of no value. 6It makes no difference if the answer is given in a different language. Hence, if anyone interrogates in Latin and he is answered in Greek, the obligation is contracted, provided the reply is suitable. The same rule governs in an opposite case. But is there any doubt whether we shall apply this only to Greek, or also to other tongues; for example, to Punic, Assyrian, or any other language? Sabinus has written upon this point, but the truth is, that any kind of speech can give rise to an obligation, if, however, each of the parties understands the language of the other either himself, or through a faithful interpreter.

2Paulus, On Sabinus, Book XII. Some stipulations relate to giving, and others have reference to acts to be performed. 1Of all these examples, some admit of partial payment, as, for instance, where we stipulate to pay ten aurei. Others do not admit of this, and in their nature are not susceptible of division; for instance, when we stipulate for a right of way, a right of passage, or a right to drive. Some, by their nature, are susceptible of division, but, unless the entire thing is given, the stipulation is not carried out; for example, when I stipulate in general terms for a slave, a dish, or any kind of a vase. For if one part of Stichus is furnished, there is, as yet, no discharge of any part of the stipulation, and it may be immediately demanded, or remain in suspense until another slave is furnished. The stipulation of furnishing either Stichus or Pamphilus is of the same kind. 2Therefore, in stipulations of this description, heirs cannot be released by merely giving a part, so long as all of them do not give, the same thing; for the condition of the obligation is not changed by the person of the heirs. Therefore, if what is promised is not susceptible of division, as, for example, a right of way, each of the heirs of the promisor will be liable for all of it. But in the case where one of the heirs has paid in full, he has recourse against his co-heir by an action in partition. Hence it happens, as Pomponius says, that each of the heirs of a person who has stipulated for a right of way, or a right of passage, is entitled to an action for the whole. Some authorities, however, think that in this case the stipulation is extinguished, because a servitude cannot be acquired by each of them separately, but the difficulty of delivery does not render the agreement void. 3If, however, having stipulated for a slave, I bring an action against one of the heirs of the promisor, only the share of the others due under the obligation remains to be paid. This is also the case when a release is granted to one of the heirs. 4The same rule which we have mentioned, as affecting the heirs, is applicable to the promisor himself and his sureties. 5Again, if the stipulation has reference to an act to be performed, for instance, if I stipulate that nothing shall be done either by yourself or by your heir to prevent me from passing or driving, and one of several heirs prevents me, his co-heir will also be liable; but they can recover what they have given him by an action in partition. Julianus and Pomponius also adopt this opinion. 6On the other hand, if the stipulator should die after having provided that he and his heir should enjoy a right of way, and one of his heirs should be prevented from doing so, we say that it makes a difference whether the stipulation is entirely violated, or this is done only with reference to the share of him whose right was interfered with. For if a penalty is added to the stipulation, it will be incurred in full; but those who have not been prevented will be barred by an exception on the ground of fraud. If, however, no penalty has been imposed, then the stipulation will only be violated so far as the share of him who was prevented is concerned.

3Ulpianus, On Sabinus, Book XLIX. The same rule applies to the stipulation, “Do you promise that myself and my heir can have so-and-so?” 1The reason for this difference is, that when one of the heirs is hindered, the co-heir, who has no interest in the matter, cannot bring suit under the stipulation, unless a penalty has been imposed which causes the stipulation to be violated by all; because, in this instance, we do not inquire who is interested. But when one of the heirs, interferes, all of them are liable, for it is to the interest of him who is prevented not to be hindered by anyone.

4Paulus, On Sabinus, Book XII. We say the same thing, if I have stipulated that no fraud should be committed by you, or by your heir; and either the promisor or stipulator should die, leaving several heirs. 1Cato says, in the Fifteenth Book, that where the penalty of a certain sum of money is promised, if something else should be done, and the promisor is dead, and one of several heirs should commit the act which is provided against, the penalty will be incurred by all the heirs, each in proportion to his share of the estate, or it will only be incurred by one according to the amount of his share. If the act provided against was committed by all the heirs, and the object of the stipulation was indivisible, as, for example, where a right of way is granted for the reason that it cannot be divided, the act is considered, to a certain extent, to have been done by all. But where provision is made for something which is susceptible of division, for instance, that legal proceedings cannot any longer be prosecuted, then the heir who violated the stipulation will alone incur the penalty in proportion to his share. The reason for this difference is because, in the first instance, all the heirs are considered to have committed the act, since the agreement that you shall do nothing by which I may be prevented from passing or driving cannot be violated except in its entirety. But let us see if what appears in the following stipulation is not the same thing, but rather something that resembles it, namely: “Do you promise that Titius and his heir will ratify this?” For in this stipulation he alone will be liable who does not ratify the act, and can alone bring an action for what was demanded. This opinion was also held by Marcellus, although the master himself cannot make a partial ratification. 2If he who stipulated for double the amount should die, leaving several heirs, each one of them can bring an action in proportion to his share of the estate, on account of the eviction of what he is entitled to. The same rule will also apply to a stipulation relating to an usufruct, for the prevention of threatened injury, and notice to discontinue a new work. After notice to discontinue a new work, partial restitution to its former condition cannot be made. This rule has been adopted by stipulators on account of its convenience. Partial restitution cannot be made by a promisor, nor can a partial defence be instituted by him.

5Pomponius, On Sabinus, Book XXVI. Some stipulations are judicial, some are prætorian, some conventional, and others common, that is to say, both prætorian and judicial. Judicial stipulations are such as are prescribed officially by the court, as, for instance, the provision of security against fraud. Prætorian stipulations are such as are prescribed officially by the Prætor, for example, those against threatened injury. Prætorian stipulations must be understood to also include those having reference to the duties of the Mile, for these also proceed from the authority of jurisdiction. Conventional stipulations arise from the agreement of the parties, and I am tempted to say there are as many kinds of them as there are of objects to be contracted for, since they are employed in the same verbal obligations, and depend upon the nature of the business to be transacted. Stipulations are common, for instance, where it is agreed that the property of a ward shall be rendered secure; for the Prætor orders a bond to be given to protect the property of the ward, and sometimes the judge does this, if it cannot otherwise be accomplished. In like manner, the stipulation for double the amount proceeds either from the judge or from the Edict of the diles. 1A stipulation is a certain form of words by which the party who is questioned answers that he will give or do whatever is the subject of the interrogation. 2The agreement to satisfy is a stipulation which binds the promisor that sureties shall be furnished by him, that is to say, persons who will promise the same thing. 3The agreement to satisfy is a term which is used in the same way as to secure. For where anyone is content with what is furnished him, this is called satisfaction; and, in like manner, where sureties are furnished who bind themselves verbally and he to whom they are offered is content with them, this is designated giving sufficient security. 3aIf you promise a certain sum of money as principal, and also a penalty if it is not paid, and one of your heirs pays a portion of the principal, he will, nevertheless, be liable to the penalty until what is due from his co-heir has been paid. 4The same rule applies to a penalty in the case of a reference to arbitration, where one of the parties complies with the decision of the judge, and the other does not. The heir should be reimbursed by his co-heir, for in stipulations of this kind, no other decision can be made without injuring the stipulator.

6Ulpianus, On Sabinus, Book I. When anyone has been forbidden to manage his own property, he is benefited by a stipulation, but he cannot deliver anything, or bind himself by making a promise. Hence a surety cannot intervene in his behalf, any more than in that of an insane person.

7The Same, On Sabinus, Book VI. Where an impossible condition has been prescribed, and it has reference to the performance of some act, it is an impediment to the stipulation. The case is otherwise, however, if a condition like the following one, namely, “If he does not ascend to heaven,” is inserted into the stipulation; for it is available and effectual, and applies to money which has been loaned.

8Paulus, On Sabinus, Book II. In the following stipulation, “If you do not deliver Stichus on the kalends, do you promise to pay ten aurei?” the slave having died, the question arises whether the action can be brought immediately before the kalends? Sabinus and Proculus hold that the plaintiff must wait until the day, which is the better opinion, for every obligation has reference to a condition and an appointed time, and although the condition seems to have been fulfilled, still the time for performance has not yet arrived. But with reference to one who promises as follows, “If you do not touch the sky with your finger before the kalends,” we can proceed immediately. This opinion was also adopted by Marcellus.

9Pomponius, On Sabinus, Book II. If Titius and Seius stipulate separately, as follows, “If you do not convey such-and-such a tract of land to So-and-So, do you promise to pay me?” the time for paying one of them will not terminate until judgment is rendered, and therefore the right of action will belong to him who manifests the greatest diligence.

10The Same, On Sabinus, Book III. In a stipulation such as the following, “If Lucius Titius does not come into Italy before the Kalends of May, do you promise to pay ten aurei?” it is our practice that suit cannot be brought before it is ascertained that Titius cannot come into Italy before that date, and that he has not come, either living or dead.

11Paulus, On Sabinus, Book II. If a son, while at home, enters into a stipulation, he is considered to have acquired for the benefit of his father on the return of the latter from the hands of the enemy.

12Pomponius, On Sabinus, Book V. If I stipulate as follows, “Do you promise to pay ten, or five aurei?” five will be due. And also, “Do you promise to pay on the Kalends of January, or February?” this is the same as if I had stipulated for payment on the Kalends of February.

13Ulpianus, On Sabinus, Book XIX. He who enters into a stipulation for payment before the next kalends is in the same position as one who stipulates for payment on the kalends.

14Pomponius, On Sabinus, Book V. If I stipulate with you that a house shall be built, or if I have charged my heir to build a house, it is held by Celsus that an action cannot be brought in this case until the time has expired in which the house could have been built, nor will the sureties be liable before that time.

15The Same, On Sabinus, Book XXVII. Hence doubt arises, if a portion of the house having been built it should afterwards be destroyed by fire, whether the entire time for rebuilding it should be computed, or whether only the remaining time should be taken into consideration. The better opinion is that the entire time for rebuilding it should be granted.

16The Same, On Sabinus, Book VI. If you owe me Stichus or Pamphilus, and one of them should become my property in some way, you will owe me the other. 1A stipulation of this kind, “For each year,” is both uncertain and perpetual, and does not resemble a legacy, which is extinguished by the death of the legatee.

17Ad Dig. 45,1,17ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 15.Ulpianus, On Sabinus, Book XXVIII. A stipulation is not valid when the condition imposed depends upon the will of the person who makes the promise.

18Pomponius, On Sabinus, Book X. Anyone who promises the same thing twice is not legally liable for it more than once.

19The Same, On Sabinus, Book XV. Where a stipulation is made as follows, “If a divorce takes place through your fault, do you promise to pay?” the stipulation is void, because we should be content with the penalties imposed by the laws, unless the stipulation imposes the same penalty as that prescribed by law.

20Ulpianus, On Sabinus, Book XXXIV. Stipulations like the following are not void, namely, “Do you promise to pay what Titius owes you when he ceases to be your debtor?” for this stipulation is just as valid as if it had been made under any other condition.

21Pomponius, On Sabinus, Book XV. If, after a divorce has taken place, the woman who owes nothing as dowry stipulates that she should be paid a hundred aurei as her dowry, or one who is entitled to only a hundred aurei stipulates that two hundred shall be given her by way of dowry, Proculus says that if she who is entitled to a hundred stipulates for two hundred, there is no doubt that the stipulation will call for a hundred; and that the other hundred can be collected by an action on dowry. Therefore, it must be said that if there is nothing due as dowry, a hundred aurei can be collected under the stipulation; just as when a legacy is bequeathed by way of dowry to a daughter, a mother, a sister, or anyone else whomsoever, it will be valid.

22Paulus, On Sabinus, Book IX. If I stipulated with you for what I believed to be gold, when, in fact, it was brass, you will be liable to me for the brass, as we agreed upon the object; but I can bring an action against you on the ground of fraud, if you knowingly deceived me.

23Pomponius, On Sabinus, Book IX. If you owe me a certain slave on account of a legacy, or a stipulation, you will not be liable to me after his death; unless you were to blame for not delivering him to me while he was living. This would be the case, if, after having been notified to deliver him, you did not do so, or you killed him.

24Paulus, On Sabinus, Book IX. If a minor owes Stichus under a stipulation, he is not considered to be in default, and be liable, if Stichus should die, unless a demand was made upon him with the consent of his guardian, or it was made upon his guardian alone.

25Pomponius, On Sabinus, Book XX. If I stipulate for what is already due to me under a stipulation, and the promisor can protect himself against this stipulation by pleading an exception, he will be bound by the subsequent agreement, because the first one is rendered of no effect by pleading the exception.

26Ad Dig. 45,1,26ROHGE, Bd. 18 (1876), Nr. 25, S. 101: Verträge über unerlaubte, dem öffentlichen Interesse zuwiderlaufenden Handlungen. Ueberlassung des Ertrags aus der gesammten geschäftlichen Thätigkeit lebenslang.Ulpianus, On Sabinus, Book XLII. We know that, generally speaking, dishonorable stipulations are of no force or effect:

27Pomponius, On Sabinus, Book XXII. For instance, if anyone promises to commit homicide, or sacrilege. It is, however, the duty of the Prætor to refuse an action in all obligations of this kind. 1If I should stipulate as follows, “Do you promise to pay if you do not ascend to the Capitol within two years?” I cannot lawfully bring an action against you until the term of two years has expired.

28Paulus, On Sabinus, Book X. If we stipulate for property to be delivered, we do not understand that its ownership shall be transferred to the stipulator, but merely that the article itself shall be delivered.

29Ulpianus, On Sabinus, Book XLVI. Ad Dig. 45,1,29 pr.ROHGE, Bd. 14 (1875), Nr. 40, S. 103: Erwerb des Pfandbesitzes an einer Quantität vertretbarer Sachen.ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 252, Note 9; Bd. II, § 464, Note 4.We must remember that, in stipulations, there are as many agreements as. there are sums of money, and as many stipulations as there are articles involved. The result of this is that where a sum of money or an article which was not included in the preceding stipulation is mixed with another, a renewal does not take place, but two stipulations are made. And although it has been decided that there are as many stipulations as there are sums of money, and as many stipulations as there are articles; still, if anyone stipulates for a certain sum or a pile of money which is in sight, there are not as many stipulations as there are separate pieces of money, but only a single stipulation; as it is absurd that there should be a separate stipulation for every coin. It is also certain that there is only one stipulation for a legacy, although several objects may be included in one legacy, or there may be several legacies. Moreover, there is but one stipulation, where it refers to the entire body of slaves, or all the slaves in a household. In like manner, a stipulation which has reference to a team of four horses, or to a number of litter bearers, is but one. If, however, anyone stipulates for “this article and that,” there are as many stipulations as there are objects. 1If I stipulate with a thief for a slave, the question arises whether the stipulation will be valid. What causes the difficulty is, that having stipulated for a slave, I am generally held to have contracted for my own property, and a stipulation of this kind is not valid when anyone makes an agreement with reference to what is bis own. If I should stipulate as follows, “Do you promise to give what must be given under a personal action for recovery?” there is no doubt that the stipulation will be valid. If, however, I should merely stipulate for “a slave,” the stipulation will be of no force or effect. If the slave should afterwards die, without the thief being in default, Marcellus says that the latter will not be liable to a personal action, for as long as the slave lived he could have been recovered by such a proceeding. But if we suppose that he died, he is placed in such a position that the right to bring a personal action for his recovery based on the stipulation will be extinguished.

30The Same, On Sabinus, Book XLVII. It must generally be understood that, if anyone should state in writing that he has become a surety, all legal formalities are considered to have been complied with.

31Pomponius, On Sabinus, Book XXIV. If I stipulate for my own property under a condition, the stipulation will be valid if the property should not belong to me at the time when the condition is fulfilled.

32Ulpianus, On Sabinus, Book XLVII. If we are mistaken in the name of the slave whom we stipulate shall be delivered to us, it has been decided that the stipulation will be valid so long as no mistake was made with reference to its object.

33Pomponius, On Sabinus, Book XXV. If Stichus is promised to be delivered on a certain day, and dies before that day arrives, the promisor will not be liable.

34Ulpianus, On Sabinus, Book XLVIII. It makes a great deal of difference whether I stipulate for property which I cannot make use of in commerce, or whether someone promises it to me. If I stipulate for something which I have not the right to dispose of in commerce, it is settled that the stipulation is void. If anyone promises me something which he cannot dispose of commercially, he injures himself, and not me.

35Paulus, On Sabinus, Book XII. If I stipulate for an act to be performed which Nature does not permit to take place, the obligation does not become operative, any more than when I stipulate that something shall be given which is not possible, unless it is the fault of someone that this cannot be done. 1Again, an obligation does not arise, if the object of the stipulation is something which is forbidden by law, where the cause of the prohibition is perpetual; for instance, if anyone should stipulate to marry his own sister. And even if the cause should not be perpetual, as happens in the case of an adopted sister, the same rule applies, because an offense is immediately committed against good morals. 2If in hiring, leasing, sales, and purchases, the other party does not answer the interrogatory, but, nevertheless, consents to what has been answered, the agreement will be valid; for contracts of this kind are not confirmed by words as much as by consent.

36Ulpianus, On Sabinus, Book XLVIII. If anyone having agreed to bind himself in one way is fraudulently bound in another, he will be liable under the strict construction of the law; but he can have recourse to an exception on the ground of fraud, because anyone who has been rendered liable by fraud is entitled to an exception. The same rule applies if no fraud has been committed by the stipulator, even if the thing itself is fraudulent, for anyone who brings an action under such a stipulation commits fraud by doing so.

37Paulus, On Sabinus, Book XII. If I stipulate for a certain sum of money, for instance, what is in a chest, and it is lost without the fault of the promisor, nothing will be due to us.

38Ulpianus, On Sabinus, Book XLIX. The following stipulation, “Do you promise that I can have such-and-such a thing?” contains the provision that I shall be permitted to have it, and that nothing shall be done by anybody to prevent us from having it. The effect of this is that the other contracting party is considered to agree that you shall be permitted by all persons in the future to have what you have been promised. Therefore he appears to have guaranteed the acts of others. No one, however, will be liable if he promises that others will do something, and this is our practice. But he binds himself not to do anything to prevent the other party from having the property, and he also binds himself that neither his heir, nor any of his other successors, will do anything to prevent the stipulator from having what he promised him. 1If, however, he promises that no interference will take place through the agency of anyone except his heir, it must be said that his promise of the act of another is void. 2If he should desire to guarantee the act of another, he can promise a penalty, or the value of the property. But to what extent will he be considered to guarantee possession of the property? This has reference to cases where no one raises a controversy, that is to say, neither the promisor himself, nor his heirs, nor their successors. 3If anyone should raise a question, not with regard to the ownership of the property, but merely to its possession, or to the usufruct or the use of the same, or to any right attaching to what has been sold, it is clear that the stipulation becomes operative, for he has not the unrestricted right to anything where what he has is diminished in any way. 4The question arose whether the promise to hold property only applies to what belongs to the person himself, or whether it also applies to property belonging to others. The better opinion is that a promise of this kind can be made with reference to the property of others, if it afterwards should come into the hands of the promisor. Hence, if it still continues to belong to someone else, it must be said that the stipulation does not become operative, unless a penalty was added, although nothing may have been done by the person himself or his successor. 5Just as he who makes the promise and his successors are liable, so, also, the stipulation becomes operative for the benefit of the stipulator himself and his successor, if he should not be allowed to have the property. If, however, another is not allowed to have it, it is certain that the stipulation does not become operative; and it makes no difference whether I stipulate “that he shall be permitted to have it,” or “that I shall be permitted to have it.” 6Those who are under the control of others can stipulate with the latter that they shall be permitted to hold the property, for the same reason that they can stipulate for other things for their benefit. If, however, a slave should stipulate that he himself shall be entitled to have the property, the question arises whether he must be considered to have entered into a legal stipulation? Julianus, in the Fifty-second Book of the Digest, says if a slave stipulates that he shall be permitted to have certain property, or promises that nothing will be done by him to prevent the stipulator from having it, the stipulation does not become operative, although he can be deprived of the property, and he himself can take it away; for in a stipulation of this kind not a fact, but a right, is involved. Therefore, if he stipulates that nothing shall be done by the promisor to prevent him from making use of a right of way, Julianus says that not the right of stipulation, but a fact, is involved. It seems to me, however, that although the stipulation that he should be permitted to have the property includes the statement of a right, still, in the case of a slave and a son under paternal control, it should be understood to apply to the retention, and not to the deprivation of possession, and the stipulation will be valid. 7This stipulation also, “Do you promise that I shall have possession?” is valid. Let us see whether a slave can properly make use of such a stipulation for his personal advantage. But although a slave cannot hold possession under the Civil Law, still this has reference to natural possession, and therefore there can be no doubt that the slave has made a valid stipulation. 8It is definitely settled that if a slave has stipulated that he shall be permitted to hold property, the stipulation is valid. For although slaves cannot hold possession civilly, still there is no doubt that they can hold it. 9The term “to have” is susceptible of two different meanings, for we say that a person who is the owner of property has it, and that he who is not the owner holds it. Finally, we are accustomed to say that we “have” property which has been deposited with us. 10If anyone should stipulate that he shall be permitted to enjoy anything, this agreement does not affect the heir. 11And if he did not add “For himself,” I do not believe that this stipulation for the usufruct will pass to the heir. This is our practice. 12Ad Dig. 45,1,38,12ROHGE, Bd. 12 (1874), Nr. 106, S. 360: Verträge zu Gunsten eines Contrahenten und eines weiteren noch unbestimmten Personenkreises. Aufführungsrecht für den Theaterdirector und dessen Nachfolger.If anyone stipulates that he and his heir shall be permitted to enjoy some right, let us see whether the heir can bring an action under the stipulation. I think that he can do so, although usufructs are different; for if the stipulation was with reference to a right of way to be enjoyed by himself and his heir, we should adopt the same opinion. 13If anyone desires to provide against the fraud of a promisor and his heir, it will be sufficient for him to stipulate that there is no fraud, and that there will not be any. If, however, he desires to provide against the fraud of everyone else, it will be necessary for him to add: “If any fraud exists in this transaction, or should arise hereafter, do you promise to pay a sum equal to the value of the property?” 14Anyone can add to his own person that of his heir. 15The person of an adoptive father can also be added. 16A distinction exists between a day which is uncertain and one that is certain; and therefore it is evident that anything which is promised at a certain time may be paid immediately, for all the intermediate time is left to the promisor for payment. And where anyone promises that, “If anything should be done, or when anything shall be done,” and he does not make payment when the thing is done, he will not be considered to have complied with his promise. 17Ad Dig. 45,1,38,17ROHGE, Bd. 16 (1875), Nr. 101, S. 399: Zweck der Konventionalstrafe. Verstärkungsmittel der Vertragserfüllung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3.No one can stipulate for another except a slave for his master, and a son for his father, as obligations of this description have been contrived in order that everyone may acquire for himself anything in which he may be interested, but I have no interest in what is given to another. It is clear that if I wish to do this, a penalty should be included in the stipulation, in order that, if what has been agreed upon should not be done, the stipulation will become operative, even in favor of a person who has no interest in the transaction. For when anyone stipulates for a penalty, his interest is not taken into account, but only the quantity and difference of the stipulation, whatever that may be. 18Ad Dig. 45,1,38,18ROHGE, Bd. 7 (1873), S. 1: Auslegung von Verträgen zu Gunsten des Verpflichteten.When the intention of a stipulation is examined, the language should be interpreted against the stipulator. 19When anyone says, “Ten to me and ten to Titius,” he is understood to mean the same ten, and not two tens. 20If I stipulate for another, when I am interested in doing so, let us see whether the stipulation becomes operative. Marcellus says that, in a case of this kind, the stipulation is valid. Where anyone undertakes the administration of the guardianship of a ward, and gives it up to his fellow-guardian, stipulating that the property of the ward shall be secured, Marcellus says, that the stipulation can be maintained to be valid, for it is to the interest of the stipulator that what he agreed to shall be done, as he would be liable to the ward if this were not the case. 21If anyone promises to build or lease a house, and then stipulates with another that a house shall be built for the stipulator; or if anyone promises that Mævius will convey a tract of land to Titius, and if he does not do so, that he will pay a penalty; or if he stipulates with Mævius to transfer a tract of land to Titius, just as if anyone should lease something to be done which he himself had undertaken; it is certain that he will be entitled to an equitable action based on the lease. 22Hence, if anyone should stipulate when it is to his interest that something should be given, he is in such a position that the stipulation will be valid. 23Therefore, where I stipulate that something shall be given to my agent, and, likewise, if I stipulate that it shall be given to my creditors, the stipulation will be valid, because it is to my interest that no penalty should attach, nor any land be sold which has been hypothecated. 24If anyone stipulates as follows, “Do you promise to produce him in court?” there is no reason why this obligation should not be valid. 25We can stipulate for the building of a sacred or religious edifice, otherwise we cannot bring an action under a lease.

39Paulus, On Sabinus, Book XII. A master, by stipulating for his slave, acquires for himself, as a father also does, if he stipulates for his son; so far as this is permitted by the laws.

40Pomponius, On Sabinus, Book XXVII. If my son stipulates for my slave, the acquisition is obtained for my benefit.

41Ulpianus, On Sabinus, Book L. It is clear that no doubt can arise where anyone stipulates for payment on the Kalends of January, and adds on “the first” or “the next.” And, also, if he mentions the second or the third, or any other, he also fixes the date beyond dispute. If, however, he does not mention what January, he introduces a question of fact as to his intention; that is to say, what was agreed upon between the parties; for we examine what was the intention, and decide accordingly. Where the intention is not evident, we must adopt the opinion of Sabinus, and hold that the first Kalends of January were meant. But if anyone makes a stipulation on the very day of the kalends, what rule shall we follow? I think that the intention should be considered to refer to the following kalends. 1Whenever the day is not stated in an obligation, the money is considered to be due at once; unless a place is mentioned which requires a certain time to arrive there. Where, however, a day is fixed, the effect is that the money will not immediately be due, from which it is clear that the mention of the time is in favor of the promisor, and not of the stipulator. 2This rule also applies to the ides, and the nones, and, generally speaking, to all dates.

42Pomponius, On Sabinus, Book XXVII. Where anyone stipulates for payment this year, or this month, he cannot properly bring suit until all of the year, or all of the month, has expired.

43Ulpianus, On Sabinus, Book L. If anyone should stipulate that restitution shall be made to him, for instance, by the arbitration of Lucius Titius, and then the stipulator himself should cause Titius to delay in rendering his award, the promisor will not be liable for being in default. But what if he who is to decide the matter should cause delay? It will be better to hold that the case should not be withdrawn from the jurisdiction of him to whose arbitration it was submitted.

44Paulus, On Sabinus, Book XII. And, therefore, if nothing is decided, the stipulation will be void, so that if a penalty has been added it can not be enforced.

45Ulpianus, On Sabinus, Book XL. Whatever one person stipulates in favor of another who has control over him will be considered as if the latter himself had made the stipulation. 1Just as anyone can stipulate for something “when he dies,” so, also, those who are subject to the authority of others can stipulate in such away that what they provide will take effect at the time of their death. 2Where anyone stipulates as follows, “Do you promise to pay my daughter after my death?” or, “Do you promise to pay me after my daughter’s death?” the stipulation will be valid; but, in the first case, the daughter will be entitled to an equitable action, although she may not be her father’s heir. 3We can stipulate not only, “When you die,” but also, “If you die,” for as there is no difference between “When you come,” or, “If you come,” likewise there is no difference between, “If you die,” and “When you die.” 4A son is understood to stipulate for payment to his father, even if he does not say so.

46Paulus, On Sabinus, Book XII. We can legally stipulate for payment on the hundredth kalends, because the obligation is present, and payment is postponed until the prescribed time arrives. 1Anything which consists of an act cannot be deferred until the death of the person, as for instance, “Do you promise to come to Alexandria when you die?” 2Ad Dig. 45,1,46,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.If I should stipulate as follows, “When you please,” some authorities say that the stipulation is void; others hold that it is void if you should die before you make up your mind; which is true. 3Ad Dig. 45,1,46,3ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.This stipulation, however, “If you are willing to pay,” is held to be invalid.

47Ulpianus, On Sabinus, Book XL. Anyone who stipulates as follows, “Do you promise to pay what you ought to pay on these kalends” is understood to be stipulated not for to-day, but for the time agreed upon, that is to say, for the kalends.

48Ulpianus, On Sabinus, Book XXVI. If I stipulate for the payment of ten aurei on demand, the stipulation contains a notice for the payment of the amount more quickly, and, as it were, without delay, rather than conditionally; and therefore, even if I should die before making the demand, the condition will not be considered to have failed.

49Paulus, On the Edict, Book XXXVII. When a son under paternal control promises to deliver Stichus, and it was his fault that he was not delivered, and Stichus should die, an action De peculia will be granted against the father for the amount for which the son was liable under the obligation. If, however, the father was in default, the son will not be liable, but a prætorian action should be granted against the father. All these things are said to be applicable to a surety. 1If I stipulate that nothing shall be done by you to prevent me from enjoying a right of way, and I accept a surety from you, and it should be the fault of the surety that I do not enjoy the servitude, neither party will be liable; but if the promisor is to blame, both of them will be. 2In the following stipulation, “It shall be done neither by you nor by your heir,” the act is considered to have been performed by the heir, even though he may have been absent, and ignorant of the fact, and hence did not do what was required by the terms of the stipulation. A minor, however, is not considered to be responsible for a stipulation of this kind, even if he is the heir. 3If the promisor of a slave is required to deliver him before the time agreed upon, and the slave should die, he will not be held responsible.

50Ulpianus, On the Edict, Book L. In the following stipulation the words, “Nothing will be done by you,” do not mean that you will not do anything to prevent some act from being performed, but that you will use your utmost efforts to accomplish it. 1Again, in a stipulation having reference to the purchase of an estate, and which is in the following terms, “All the money which comes into your hands; or which you have prevented from coming into your hands; or which you may, in the future, prevent from doing so,” there is no doubt that he who has prevented anything from coming into his hands will be liable.

51The Same, On the Edict, Book LI. A man who has promised a slave belonging to another will not be liable to an action under the stipulation, if the slave obtains his freedom; for it is sufficient for him not to be guilty of fraud or negligence.

52The Same, Disputations, Book VII. In conventional stipulations the contracting parties prescribe the form of the agreement; but prætorian stipulations are governed by the intention of the Prætor who introduced them. Finally, it is not permitted to change anything in prætorian stipulations, or to add to, or take anything from them. 1If anyone promises to deliver a vacant possession, this stipulation, does not include a bare fact, but also has reference to the condition of the property.

53Julianus, Digest, Book LXII. It is very convenient to draw up stipulations in such a way that they shall contain everything which can be expressly included in them, and so that also the clause having reference to fraud will apply to matters which cannot be recalled at the time, as well as to uncertain future events.

54The Same, Digest, Book XXII. In stipulations, species and genera are differently distributed. When we stipulate for species, it is necessary for the stipulation to be so divided between owners and their heirs that a part of each article will be due to each one. Whenever we stipulate for genera, the division is made between them by number. For instance, if anyone who stipulates for Stichus and Pamphilus leaves two heirs entitled to equal portions of his estate, it is necessary for half of both Stichus and Pamphilus to be due to each of them. If the same person has stipulated for two slaves, one slave will be due to each of his heirs. 1A stipulation for services resembles those in which genera are included, and therefore a stipulation of this description is made, not with reference to the parts of the services, but to the number of those entitled to them. If a slave held in common stipulates for one kind of service, it is necessary for each of his owners to demand a part of the service in proportion to his interest in the said slave. The discharge of an obligation of this kind is very easy, if the freedman prefers to offer the appraised value of his services, or his patrons consent that his labor shall be performed for their joint benefit.

55The Same, Digest, Book XXXVI. When anyone stipulates that payment should be made to himself for Titius, payment can be properly made to Titius, but not to his heirs.

56The Same, Digest, Book LII. Where anyone makes a stipulation as follows, “Do you promise to pay ten aurei to Titius and myself?” it is probable that he stipulated for only ten aurei to be paid to Titius and himself together; just as where anyone makes a bequest to Titius and Sempronius, he is only understood to have left ten aurei to them conjointly. 1“Do you promise that you and Titius, your heir, will pay ten aurei?” It was superfluous to include Titius, for, if he is the sole heir, he will be liable in full; and if he is the heir to only a part of the estate, he will be liable to the same extent as the remaining co-heirs; and although it seems to have been agreed that suit could be brought only against Titius, and not against his co-heirs, still, this informal agreement which has been entered into will be of no benefit to his co-heirs. 2Anyone who stipulates for payment to himself or to his son clearly includes his son in the stipulation, in order that he may legally be paid. Nor does it make any difference whether he stipulates for himself and a stranger, or for himself and his son. Therefore payment can properly be made to the son, either while he is under the control of his father, or after his emancipation; nor does it matter that a party who stipulates for payment to be made to his son acquires for himself, because the stipulator, when including himself, causes it to be understood that his son is joined with him, not for the purpose of acquiring an obligation, but to render payment more easy. 3Where anyone has stipulated that payment shall be made to his son alone, who is under his control, it cannot legally be made to the latter; because his son is mentioned in the contract rather on account of the obligation than for the purpose of payment. 4Where a person stipulates as follows, “Do you promise to pay ten aurei as long as I live?” he can legally demand the ten aurei immediately, but his heir can be barred by an exception on the ground of an informal agreement; for it is clear that the stipulator did this to prevent his heir from making the claim; just as he who stipulates that money shall be paid to him “up to the time of the kalends,” can, in fact, bring suit for it after the kalends have arrived, but he will be barred by an exception based on the contract. For the heir, also, of one to whom a servitude attaching to a tract of land has been granted for his lifetime, will be entitled to the right of way, but he can be barred by an exception based on the informal agreement. 5He who stipulates as follows, “Do you promise to pay before the next kalends?” does not differ from one who stipulates for payment on the kalends. 6A person who has the ownership of property without the usufruct can legally stipulate for the usufruct to be transferred to him; for he inserts in the obligation something which he has not at the time, but which he can have subsequently. 7If I stipulate with you for the Sempronian Estate, and afterwards I stipulate with another for the same estate, without its usufruct, the first stipulation will not be renewed because you will not be released by transferring to me the land without its usufruct; but I can still properly bring suit against you to recover the usufruct of the said land. What then should be done? When you transfer the land to me, he also with whom I stipulated for the land without the usufruct will be released from liability. 8If Seius promises me, under a condition, the same slave for whom I have absolutely stipulated with Titius, and while the condition is pending, and after Titius is in default, the slave should die, I can immediately bring an action against Titius, and the condition having been fulfilled, Seius will not be liable. If, however, I should give Titius a release, Seius will be bound, if the condition should be complied with. There is, therefore, this difference, namely, after the slave dies, the property for which Seius was liable ceases to be in existence, but the release having been given, the slave whom Seius promised still remains.

57The Same, Digest, Book LIII. Where anyone promises to pay ten aurei if Titius should become Consul, even though the promisor should die while the condition is pending, he will leave his heir liable.

58The Same, Digest, Book LIV. He who stipulates for the usufruct of land, and afterwards for the land itself, resembles one who stipulates for a part, of the land and afterwards for the whole of it, because the land is not understood to be conveyed if the usufruct is reserved. And, on the other hand, where anyone stipulates for the land, and afterwards for the usufruct, he resembles one who stipulates for all of it, and afterwards for a part. When a person stipulates for a right of way to drive, and afterwards for a footpath, the subsequent stipulation is void, just as where the stipulation of anyone for ten aurei, and afterwards for five, is void. Likewise, if anyone stipulates for the crops, and afterwards for the use of the land, the stipulation is void; unless, in all these cases, he expressly states that he does this with the intention of making a new stipulation, for then the first obligation having been extinguished, a right of action will arise from the second, and the right of passage, and the use of the land, as well as the five aurei, can be exacted.

59Ad Dig. 45,1,59Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 7.The Same, Digest, Book LXXXVIII. Whenever anyone stipulates for oil to be delivered on a certain day, or under some condition, its value should be estimated on the day when the obligation becomes due, for then it can be demanded; otherwise, an advantage will be taken of the promisor.

60Ad Dig. 45,1,60Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 7.Ulpianus, On the Edict, Book XX. The same rule will apply if anyone stipulates for the delivery of a certain weight of oil at Capua, for an estimate should be made at the time when it can be claimed, which is as soon as a person can arrive at the place designated.

61Julianus, On Urseius Per ox, Book II. A stipulation formulated as follows, “Do you promise to pay me such-and-such a sum of money, if you do not appoint me your heir?” is void, as this stipulation is contrary to good morals.

62The Same, On Minicius, Book II. If a slave, after having been forbidden by his master, stipulates for the payment of money by another, he will still render the promisor liable to his master.

63Africanus, Questions, Book VI. Where anyone stipulates as follows, “If a ship should come from Asia, or Titius should be made Consul,” no matter which condition is first fulfilled, the stipulation will become operative, but this will not be done a second time. For when one of two distinct conditions fails, the one which is fulfilled will necessarily render the stipulation operative.

64The Same, Questions, Book VII. The following stipulation was entered into: “If Titius should be made Consul, do you promise to pay ten sesterces annually, from to-day?” The condition was fulfilled after three years; may it not reasonably be doubted whether proceedings could be instituted to compel payment for this time? The answer was that the stipulation was valid, and that payment should be understood to be due even for those years which had elapsed before the condition was fulfilled, as the meaning was, that if Titius should be made Consul, ten sesterces must be paid every year, and that even the time which had passed ought to be included.

65Florentinus, Institutes, Book VIII. Anything which you may add that is foreign to the stipulation and which has no reference to the present contract will be considered as superfluous, but will not vitiate the obligation; for instance, if you say, “I sing of arms and the man, I promise,” the stipulation will be valid. 1When, however, any change is made in the designation of the property, or of the person concerned in the transaction, it is held that this will present no obstacle. For if he stipulates for denarii, you will be bound, if you promise aurei to the same amount. And where a slave stipulates for Lucius, his master, and you promise to pay Titius, who is the same person, you will be liable.

66Paulus, On the Lex Ælia Sentia, Book III. If a minor of twenty years of age stipulates with his debtor for the manumission of a slave, the execution of the stipulation should not be granted. If, however, the minor is twenty-five years of age, the manumission will not be prevented, because the law mentions a minor of that age.

67Ulpianus, On the Edict, Book II. The following stipulation, “Do you promise to guarantee the payment of ten thousand sesterces?” is valid. 1A person who stipulates that someone shall see that he is paid ten aurei cannot bring suit to recover that sum, as the promisor may be released by giving a solvent surety, as Labeo says, and Celsus also states in the Sixth Book of the Digest.

68Paulus, On the Edict, Book II. When I stipulate for a penalty if you do not lend me a sum of money, it is certain that the stipulation is valid. If, however, I should stipulate as follows, “Do you promise to lend me a certain sum of money?” the stipulation is vague, because what is to my interest is included therein,

69Ulpianus, On the Edict, Book VII. Where a man who is dead cannot be produced in court, the penalty for something which is impossible is not incurred; just as where someone, having stipulated to deliver Stichus, who is dead, provides for a penalty if he should not be delivered.

70The Same, On the Edict, Book XI. A woman who gave a dowry to my compatriot, Glabrio-Isidor, made him promise this dowry to a child if she should die during marriage, which she did. It was decided that an action under the stipulation would not lie, as a person unable to speak could not stipulate.

71The Same, On the Edict, Book XIII. Whenever we stipulate for a penalty in order that some act may be performed, we express ourselves properly as follows, “If it is not done in this way.” If, however, the penalty is for some act not to be performed, we should express it as follows, “If anything contrary to this is done.”

72The Same, On the Edict, Book XX. Ad Dig. 45,1,72 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 253, Note 8; Bd. II, § 299, Note 7.Stipulations are not divided when they relate to things which are not susceptible of division; as, for example, rights of way of every description, the privilege of conducting water, and other servitudes. I think that the same rule will apply when anyone stipulates for the performance of some act, for instance, the delivery of land, the excavation of a ditch, the building of a house; or for certain services, or for anything else of this kind, as their division annuls the stipulation. Celsus, however, in the Thirty-Eighth Book of the Digest, says that it was the opinion of Tubero that where we stipulate for something to be done, and it is not done, a sum of money should be paid, and that even in this kind of a transaction the stipulation is divided; in accordance with which, Celsus says that it may be held that an action should be granted, dependent upon the circumstances of the case. 1When anyone stipulates as follows, “If the work is not completed before the Kalends of next March, do you promise to pay a sum of money equal to the value of the work?” the promise will not date from the day when the work was begun, but after the Kalends of March, because the person who makes the promise cannot be sued before the Kalends of March. 2It is clear that if anyone has stipulated to prop up a house, it will not be necessary to wait until the house falls down before bringing suit; nor, where a house is to be built, to wait until the time has passed in which it could be built; but as soon as the promisor is in default in building the house, then suit can be brought, as the time fixed for the performance of the obligation has elapsed.

73Paulus, On the Edict, Book XXIV. Sometimes the performance of an absolute stipulation is delayed by the nature of the thing itself; for instance, where someone has stipulated with reference to an unborn child, or future crops, or a house which is to be constructed, for then the right of action arises whenever delivery can be made, according to the nature of the property. Again, if anyone stipulates for payment to be made at Carthage, while he is at Rome, the time is tacitly understood to be included which will be necessary to consume in order to go to Carthage. In like manner, if anyone stipulates with a freedman for his services, their time will not expire before they have been defined and not performed. 1When a slave belonging to an estate makes a stipulation it will have no force or effect, unless the estate has been entered upon, just as if it was made under a condition. The same rule applies to a slave who is in the hands of the enemy. 2The promisor of Stichus, by tendering him after being in default, purges himself of the default. For it is certain that an exception on the ground of fraud will bar anyone who refuses to receive money tendered him.

74Gaius, On the Provincial Edict, Book VIII. Some stipulations are certain, and others are uncertain. A stipulation is certain when, by its mere mention, its nature and its amount are predisclosed, as for instance, ten aurei, the Tusculan Estate, the slave Stichus, a hundred measures of the best African wheat, a hundred jars of the best Campanian wine.

75Ulpianus, On the Edict, Book XXII. When, however, it is not apparent what the thing stipulated for is, and its nature or amount is undetermined, it must be said that the stipulation is uncertain. 1Therefore, when anyone stipulates for a tract of land without any specific designation, or for a slave in general terms, without mentioning his name, or for wine or wheat without stating its kind, he has included something uncertain in the obligation. 2This is so far true that if anyone stipulates as follows: “Do you promise to give me a hundred measures of good African wheat, and a hundred jars of good Companian wine?” he will be considered to have stipulated for articles which are uncertain, because something better than something good can be found, on which account the appellation “good” does not specify any certain article, as anything which is better than good is also itself good. But when anyone stipulates for “the best,” he is understood to stipulate for an article whose excellence occupies the first rank, the result of which is that this designation refers to something which is certain. 3If anyone stipulates for the usufruct of a certain tract of land, he is understood to have inserted something vague into his obligation. This is the present practice. 4Where a person stipulates that any child which shall be born to the female slave, Arethusa, or any crops grown upon the Tusculan Estate shall be given to him, it is doubtful whether he shall be considered to have stipulated for some object which is certain. It is, however, from the nature of the case, perfectly clear that this stipulation is for an uncertain object. 5But where anyone stipulates for the wine, the oil, or the wheat which is in a certain warehouse, he is understood to stipulate for something which is certain. 6When, however, someone stipulates with Titius as follows: “Do you promise to pay me what Seius owes me?” and also he who stipulates as follows, “Do you promise to pay me what you owe me, under your will?” he inserts something which is uncertain into his obligation, even if Seius owes a certain sum, or a certain sum is due him under the will, although these instances can hardly be distinguished from those which we have mentioned with reference to the wine, oil, or wheat stored in the warehouse. On the other hand, the sureties are considered to have promised something certain, provided he for whom they bound themselves owes something that is certain; although they may also be asked, “Do you consider yourselves liable for this?” 7Any person who stipulates for something to be done, or not to be done, is considered to stipulate for what is uncertain: for something to be done, as, for instance, “the excavation of a ditch, the construction of a house, the delivery of free possession;” for something not to be done, for example, “that nothing shall be done by you to prevent me from walking and driving over your land, or that you will take no steps to prevent me from having the slave Eros.” 8Where anyone stipulates for one thing or the other, for instance, for ten aurei or the slave Stichus, it is not unreasonable to ask whether he has included something which was certain or uncertain in his obligation. For these objects are specifically designated, and uncertainty only exists as to which of them should be delivered. Still he who has reserved the choice for himself, by adding the following words, “Whichever I may wish,” may be considered to have stipulated for something which is certain, as he can maintain that he has the right to give only the slave, or the ten aurei. He, however, who does not reserve the choice for himself, stipulates for something which is uncertain. 9Ad Dig. 45,1,75,9ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.He who stipulates for the principal and any interest whatever is considered to have stipulated for something which is both certain and uncertain; and there are as many stipulations as there are things. 10The following stipulation, “Do you promise to transfer the Tusculan Estate?” shows that the object is certain, and contains the provision that the entire ownership of the property shall be conveyed to the stipulator in some way or other.

76Paulus, On the Edict, Book XVIII. When I stipulate for one thing or the other, whichever I may select, the choice is a personal one and therefore a selection of this kind attaches to a slave or a son under paternal control. If, however, the stipulator should die before making his choice, the obligation will pass to the heirs. 1When we stipulate that you shall either give or do something, that which is owing at the present time is only included in the stipulation, and not what may be due hereafter, for instance, on judgments. Therefore, the words, “What you must pay,” “either now, or within a certain time” are inserted into the stipulation. This is done because a person who stipulates for you to pay something has reference to money which is already due. If, however, he wishes to designate the entire indebtedness, he says, “What you must pay either now or within a certain time.”

77The Same, On the Edict, Book LVIII. Where money is promised upon a certain day, under a penalty, and the promisor dies before the day arrives, the penalty will be incurred, even though the estate may not have been accepted.

78The Same, On the Edict, Book LXII. If a son under paternal control, having stipulated under a condition, should be emancipated, and afterwards the condition should be fulfilled, his father will be entitled to the action; because, in stipulations, the time when we make the contract is considered. 1When we stipulate for a tract of land, the crops which are in existence at the time of the stipulation are not included.

79Ulpianus, On the Edict, Book LXX. If security is furnished to the agent of a person who was present, there is no doubt that an action on the stipulation will lie in favor of the principal.

80The Same, On the Edict, Book LXXIV. Whenever the language of a stipulation is ambiguous, it is most convenient to adopt the meaning which is favorable to the preservation of the property in question.

81The Same, On the Edict, Book LXXVII. Whenever anyone promises to produce another in court, and does not provide a penalty (for instance, if he promises to produce his slave, or a freeman), the question arises whether the stipulation becomes operative. Celsus says, that even when it was not stated in the stipulation that a penalty should be paid, if the person was not produced, it is understood that he who makes the promise will be liable for the interest of his adversary in having him produced. What Celsus says is true, for he who promises to produce another in court promises that he will take measures to do so. 1If an agent promises to produce anyone without a penalty, it can be maintained that he made the agreement, not for his own benefit, but for that of the person whom he represents; and it can be assured with still more reason that the stipulation of the agent includes the value of the property involved.

82The Same, On the Edict, Book LXXVIII. No one can make a valid stipulation for his own property, but he can make one for its price. I can legally stipulate that my own property shall be restored to me. 1If the slave to be produced should die after the promisor is in default, the latter will still be liable, just as if the slave were living. 2He is considered to be in default who prefers to go into court rather than to make restitution.

83Paulus, On the Edict, Book LXXII. The contract is made between the stipulator and the promisor, and therefore where one of them promises for another that he will either pay something, or perform some act, he will not be liable, for each one must promise for himself. And he who asserts that there is no fraud connected with the transaction, and that there will be none, does not simply make a disavowal, but promises that he will see that no fraud is committed. The same rule applies to the following stipulations, namely, “that the party interested will be permitted to have the property,” and that “Nothing will be done either by you or your heir to prevent this from taking place.” 1If, when stipulating for Stichus, I have another slave in my mind, and you have still another, the transaction will be void. This was also the opinion of Aristo with reference to judgments. The better opinion, however, is that he shall be considered to be demanded whom the purchaser had in his mind; for while the validity of the stipulation depends upon the consent of both parties, a judgment is rendered against one of them without his consent, and therefore the plaintiff should rather be believed; otherwise the defendant will always deny that he consented. 2If, when I stipulate for either Stichus or Pamphilus, you promise to give me one of them, it is decided that you will not be liable, and that no answer was given to the interrogatory. 3The case of sums of money is different, as, for instance, “Do you promise to pay ten, or twenty aurei?” For, in this instance, although you promise ten, the answer was properly given, because a person is considered to have promised the smaller of two sums of money. 4Again, if I stipulate for several things, for example, for Stichus and Pamphilus, although you may have promised one of them, you will be liable, for you are considered to have answered in one of these two stipulations. 5I cannot legally stipulate for anything which is sacred or religious, or which has been perpetually destined for the use of the public, as a market or a temple, or a man who is free; although what is sacred may become profane, and anything which has been destined for public service may revert to private uses, and a man who is free may become a slave. For when anyone promises that he will give something which is profane, or Stichus, he will be released from liability if the property becomes sacred, or Stichus obtains his freedom, without any act of his. Nor will these things again become the subject of the obligation, if by some law, the property should again become profane, and Stichus, from being free, should again be reduced to servitude; as what is the consideration of both the release and the obligation can neither be delivered nor not be delivered. For if the owner of a ship, who has promised it, takes it apart and rebuilds it with the same materials, the obligation is renewed, because it is the same ship. Hence Pedius states that it can be said that if I stipulate for a hundred jars of wine, from a certain estate, I should wait until it is made, and if it was made and was then consumed without the fault of the promisor, I should again wait until more has been made, and can be delivered; and during these changes, the stipulation will either remain in abeyance or will become operative. These cases, however, are dissimilar, for when a freeman is promised, it is not necessary to wait until the time of his servitude, as a stipulation of this kind with reference to a freeman should not be approved; for example, “Do you promise to deliver So-and-So, when he becomes a slave?” and also, “Do you promise to transfer that ground when, from being sacred and religious, it becomes profane?” because such a stipulation does not include the obligation of the present time, and only such things as by their nature are possible can be introduced into an obligation. We are considered to stipulate not for a species but for a genus of wine; and, in this instance, the time is tacitly included. A freeman belongs to a certain species, and it is not in accordance with either civil or natural law to expect an accident or adverse fortune to happen to a man who is free, for we very properly transact our affairs with reference to such property as can immediately be subjected to our use and ownership. If a ship is taken apart with the intention of using its planks for some other purpose, although the owner may change his mind, it must be said that the original vessel has been destroyed, and that this is a different one. If, however, all of the planks have been removed for the purpose of repairing the ship, the original vessel is not considered to have been destroyed, and when the materials are put together again, it again becomes the same; just as where beams are taken from a house with the intention of being replaced, they continue to belong to the house. If, however, the house is taken down to the level of the ground, even though the same materials are replaced, it will be a different building. This discussion has reference to prætorian stipulations by which provision is made for the restoration of property, and the question arises whether it is the same property. 6If I have stipulated for something under a lucrative title, and I obtain it by such a title, the stipulation is extinguished. Where I become the heir, the stipulation is extinguished by the ownership. If, however, I being the heir, the deceased charged me with a legacy of the property, an action can be brought under the stipulation. The same rule applies if the legacy was bequeathed conditionally, because if the debtor himself should bequeath the property under a condition, he will not be released. If, however, the condition should not be complied with, and the property should remain in the possession of the heir, there would be no further ground for the claim. 7If I stipulate for Stichus, who is dead, even though this is the case, and a personal action for his recovery can be brought, just as can be done from a thief, Sabinus says that I have made a valid stipulation. But where a stipulation is made under other circumstances, it will be void; for even though the slave may be due, the promisor is released from liability by his death. He would therefore hold the same opinion if I should stipulate for the dead slave, when the debtor was in default. 8Where anyone promises to produce a female slave, who is pregnant, in a certain place, although he may produce her without her child, he is understood to produce her in the same condition.

84The Same, On the Edict, Book LXXIV. If I stipulate for the construction of a house, and the time in which you could build it should elapse, so long as I do not bring the case into court, it is established that you will be released if you build the house. If, however, I have already brought suit, it will be of no advantage to you if you build it.

85The Same, On the Edict, Book LXXV. In the discharge of an obligation, it must be remembered that there are four things to be considered: for sometimes we can recover something from each individual heir; and sometimes it is necessary to bring suit for the whole property, which cannot be divided; and again, an action can be brought for a part of the property, while the debt cannot be paid unless in its entirety; and there are instances where an action must be brought for all the property although the claim may admit of a division of payment. 1The first case has reference to the promisor of a certain sum of money, for both the demand and the payment depend upon the hereditary shares of the estate. 2The second case applies to some work which the testator ordered to be done. All the heirs are liable conjointly, because the effect of the work cannot be divided into separate parts. 3If I should stipulate that nothing shall be done either by you or your heir to prevent me from using a right of way, and that, if you should do so, you shall pay a specified sum of money, and one of several heirs of the promisor prevents me from using the right of way, the opinion of the best authorities is that all the heirs will be bound by the act of one of them, because, although I am prevented by one alone, I am still not partially prevented, but the others can be indemnified by an action in partition. 4The claim can be demanded in part, where all must be paid, as, for instance, where I stipulate for a slave who is not specifically designated, for the claim is divided, but it cannot be discharged except in full; otherwise this might be effected by the transfer of parts of different slaves, which the deceased could not have done, to prevent me from obtaining what I stipulated for. The same rule will apply, if anyone should promise ten thousand sesterces or a slave. 5An action can be brought for the entire amount, and payment of a part will bring about a release, when we institute proceedings on account of eviction; for the heirs of the vendor should all be notified together, and all of them must defend the case, and if one of them does not do so, all will be liable, but each one will only be required to pay in proportion to his share of the estate. 6Likewise, if a stipulation was made as follows, “If the Titian Estate is not transferred, do you promise to pay a hundred aurei?” the penalty of a hundred aurei will not be incurred, unless the entire estate is transferred, and it is of no advantage to convey the remaining shares of the land, if one of the parties refuses to convey his share; just as the payment of a part of a debt to a creditor is not sufficient to release the property pledged. 7If anyone, who will become liable under a certain condition, prevents the condition from being fulfilled, he will, nevertheless, be liable.

86Ad Dig. 45,1,86ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Ulpianus, On the Edict, Book LXXIX. When it is said that there are as many stipulations as there are things, this only applies where the things are mentioned in the stipulation, but if they are not enumerated, there is but one stipulation.

87Paulus, On the Edict, Book LXXV. No one can legally stipulate for something which is his, in the event that it will belong to him.

88The Same, On Plautius, Book VI. The default of the principal debtor also injures the surety, but if the surety should offer a slave, and the principal debtor is in default, and the slave should die, relief must be granted the surety. If, however, the surety should kill the slave, the principal debtor will be released, but an action based on the stipulation can be brought against the surety.

89The Same, On Plautius, Book IX. If I rent land to a tenant for five years, and, after three years have elapsed I stipulate as follows, “Do you promise all that you are obliged to pay, or do?” nothing more is embraced in this stipulation than what should be done at that time; for in making a stipulation nothing is included but what is already due. If, however, it should be added, “What you will be obliged to pay, or do,” the obligation will have reference to the future.

90Pomponius, On Plautius, Book III. When we stipulate that if the principal is not paid, a penalty shall be due every month, instead of the legal interest, even though a judgment may be obtained for the principal, the penalty will still continue to increase, because it is certain that the principal has not been paid.

91Paulus, On Plautius, Book XVII. Ad Dig. 45,1,91 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 265, Note 13.If I stipulate for a slave, and he should die without anyone being in default, even if the promisor should kill him, legal proceedings may be instituted. Where, however, the promisor neglects him when he is ill, will he be liable? When we consider whether this is the case, where an action is brought to recover a slave, and he has been neglected by the person who has possession of him, the latter will be liable on the ground of negligence; just as where anyone who has promised to deliver the slave to whom the stipulation has reference is presumed to be negligent in doing something, and not for refraining from doing something. The latter opinion should be approved, because he who promises to pay is responsible for payment, and not for the performance of some specific act. 1If, however, the property is in existence, but cannot be delivered, as, for instance, a tract of land which has become religious, or sacred, or a slave who has been manumitted, or even captured by the enemy, negligence is determined as follows: if the property belonged to the promisor at the time of the stipulation, or became his afterwards, and any of the occurrences above mentioned took place, he will still be liable. The same thing will occur if this happened through the agency of another, after the slave had been alienated by the promisor. Where, however, the slave belonged to someone else, and something of this kind occurred through the agency of another, the promisor will not be liable, because he did nothing, unless something of this kind took place after he delayed making payment. Julianus accepts this distinction. Again, if a slave who belonged to the promisor was taken from him for the reason that he was to be free under a certain condition, he should be considered to be in the same position as if he had promised the slave of another, because the slave ceased to belong to him without any act on his part. 2The question is asked if, not being aware that he owed the slave, he should kill him, will he be liable? Julianus thinks that this is the case where one, not knowing that he was charged by a codicil to deliver a slave, manumits him. 3Ad Dig. 45,1,91,3ROHGE, Bd. 7 (1873), S. 230: Erweiterung der Verpflichtungen des Schuldners durch Zahlungsverzug.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung des Verzuges der Erfüllung, wenn dazu die Mitwirkung des Gläubigers erforderlich ist.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 28, Note 5.In the next place, let us consider the rule established by the ancients, that is to say, whenever the debtor is guilty of negligence, the obligation will continue to exist. How should this be understood? And, indeed, if the promisor acts in such a manner as to render himself unable to pay, the constitution becomes easy of comprehension. Where, however, he is only in default, a doubt may arise whether, if he should not afterwards delay, the former default will be disposed of. Celsus says, that he who is in default in delivering Stichus, whom he promised, can clear himself of the default by subsequently tendering the slave; for this is a question having reference to what is proper and equitable, and, in a case of this kind, pernicious errors are frequently, committed in relying too much on the authority of the science of the law. This opinion is probably correct, and is adopted by Julianus. For when the question of damages arises, and the case of both parties is the same, why should not the position of him who holds the property be preferable to that of him who attempts to obtain it? 4Now let us see to what persons this constitution applies. There are two things to take into account: first, we must inquire what persons are responsible for the continuance of the obligation; and second, for whom they cause it to be continued. The principal debtor certainly perpetuates the obligation, but is there any doubt that the other debtors also perpetuate it? It is the opinion of Pomponius that they do, for why should a surety extinguish his obligation by his own act? This opinion is correct, therefore the obligation is perpetuated both in their persons and in those of their successors, as well as in those of their accessories, that is to say, their sureties; for the reason that they have given their promise with reference to it under all circumstances. 5Let us see whether a son under paternal control, who made a promise by the order of his father, can prolong the obligation of the latter by killing the slave. Pomponius thinks that he can do so, because we understand the person who gives the order to be an accessory. 6The effect of this regulation is, that the slave can still be claimed, but it is held that a release may be granted, or a surety be accepted on account of the obligation. There is some doubt as to whether this obligation can be renewed, for the reason that we cannot stipulate for a slave who is not in existence, or for money which is not due. I think that a renewal can be made if it is agreed upon between the parties; which is also the opinion of Julianus.

92The Same, On Plautius, Book XVIII. If I stipulate as follows, “Do you promise that nothing will be done by you to prevent me, or my heir, from removing my vintage?” the action will also be granted to my heir.

93The Same, On Vitellius, Book III. If I stipulate as follows: “Do you promise that you will do nothing to prevent me from taking one of the slaves which you have?” I will be entitled to the choice.

94Marcellus, Digest, Book III. A man stipulated for wheat to be delivered to him. This is a question of fact, and not of law. Therefore, if he had a certain kind of wheat in his mind, that is to say, wheat of a certain quality, or of a certain quantity, this is considered to have been stated. Otherwise, if he intended to designate the kind of wheat and the amount, and did not do so, he is considered not to have stipulated for anything, and hence the other party is not bound to deliver a single measure of wheat.

95Ad Dig. 45,1,95Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3; Bd. II, § 361, Note 3.The Same, Digest, Book V. Where anyone stipulates for the construction of a house, he only acquires the obligation when it is evident in what place he desired the house to be built, and if he is interested in having it built there.

96The Same, Digest, Book XII. Where anyone owes me a slave under the terms of a stipulation and he surprises him in the act of committing a crime, and kills him with impunity, a prætorian action cannot be brought against him.

97Celsus, Digest, Book XXVI. If I stipulate as follows, “Will you appear in court? And if you do not do so, will you deliver a centaur?” the stipulation will be the same as if I had merely promised to appear in court. 1Ad Dig. 45,1,97,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 361, Note 3.I can legally stipulate with you as follows: “Do you promise that you will pay in the name of Titius?” For this is not similar to the stipulation that “Titius will give something,” but under it I can bring an action, if I have any interest; and therefore if Titius is solvent, I can recover nothing under this stipulation, for what interest have I in inducing you to do something, while if you do not do it, I shall be equally sure of my money? 2“Do you promise to pay me ten aurei, if I marry you?” I think that, in this case, after proper cause has been shown, the action can be refused; still, there is not infrequently ground for a stipulation of this kind. The same rule applies where a husband stipulates with his wife in this way, when there is no reference to a dowry.

98Marcellus, Digest, Book XX. I think that property which belongs to me can be stipulated for under a condition, as I can stipulate for a right of way to a tract of land, although the land may not belong to me at the time. If, however, this should not be the case, and I stipulate for land belonging to another, under a condition, and the land afterwards becomes mine by a lucrative title, the stipulation is immediately annulled. If the owner of the land stipulates for a right of way under a condition, the stipulation will be annulled as soon as the land is alienated; and this is certainly the case in the opinion of those authorities who hold that obligations which have been legally contracted are extinguished, when the conditions under which they exist become such that they could not have been established under them. 1The question arises when suit can be brought under the following stipulation: “Do you promise to prop up such-and-such a house?” It is not necessary to wait until the house falls down, for it is to the interest of the stipulator that it should be propped up, rather than that it should not be; still proceedings cannot properly be instituted, if sufficient time has not elapsed for the person to prop it up who intends to do so.

99Celsus, Digest, Book XXXVIII. Whatever is required to render an obligation binding is understood to have been omitted, if it is not plainly expressed in words; and we almost always interpret it in favor of the promisor, because the stipulator was free to give a broader meaning to the terms; but, on the other hand, the promisor should not be heard if it is to his interest that the agreement should be considered to have reference to certain vessels, or to certain slaves. 1If I stipulate as follows, “Do you promise to pay if you do not ascend to the Capitol within two years?” I cannot legally bring suit before the expiration of the two years; for although these words are ambiguous, still they are understood to have this meaning, “If it is absolutely true that you did not ascend to the Capitol.”

100Modestinus, Rules, Book VIII. A condition which has reference to the past, as well as to the present time, either annuls the obligation immediately, or does not, under any circumstances, defer its performance.

101Ad Dig. 45,1,101Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 71, Note 8.The Same, On Prescriptions, Book IV. Persons who have arrived at the age of puberty can bind themselves under a stipulation without their curators.

102The Same, Opinions, Book V. Vendors furnished security against eviction to a purchaser to the extent of his interest, and they also specially promised that they would be responsible for all expenses which might be incurred by the purchaser, who was the stipulator, if the matter should come into court. After the death of the purchaser, one of the vendors brought suit, alleging that the price was due to him; and the heirs of the purchaser, who proved that the price had been paid, demanded, under the terms of the stipulation, that they should be reimbursed for the expenses incurred in defending the case. Modestinus gave it as his opinion that if the vendors promised to pay the expenses incurred in an action brought to determine the ownership of the property, such expenses could, by no means, be collected under the stipulation where one of the vendors sued to recover the price which had already been paid.

103The Same, Pandects, Book V. A freeman cannot be the object of a stipulation, for demand cannot be made for his delivery, nor can his appraised value be paid, any more than if a person should stipulate for a dead slave, or for land in the hands of the enemy.

104Javolenus, On Cassius, Book XI. Where a slave has agreed to pay a sum of money for his freedom, and has given a surety for that purpose, even though he may be manumitted by another person, the surety will, nevertheless, legally be bound, for the reason that the inquiry was not made to ascertain by whom he was manumitted, but merely to learn whether he has been manumitted.

105The Same, Epistles, Book II. I stipulated that either Damas or Eros should be given to me. When you gave me Damas, I was in default in receiving him. Damas is dead. Do you think that I am entitled to an action under the stipulation? The answer was, that according to the opinion of Massurius Sabinus, I think that you cannot bring suit under the stipulation; for he very properly held that if the debtor was not in default in paying what he owed, he would immediately be released from liability.

106The Same, Epistles, Book VI. When anyone stipulates for one of several tracts of land, which bear the same name, and the said tract has no specified designation, he stipulates for something which is uncertain; that is to say, he stipulates for the tract of land which the promisor may choose to give him. The will of the promisor, however, is in abeyance, until what has been promised is delivered.

107The Same, Epistles, Book VIII. I ask whether you think the following stipulation is dishonorable, or not. A natural father appointed, as his heir, his son, whom Titius had adopted under the condition that he should be released from paternal control. His adoptive father refused to emancipate him, unless he was willing to stipulate for the payment of a sum of money by a third party in consideration of his manumission. After his emancipation, the son entered upon the estate, and then the father, under the terms of the stipulation above mentioned, demanded the money. The answer was, I do not think that the ground of this stipulation is dishonorable, as otherwise he would not have emancipated his son. Nor can the terms of the stipulation be considered unjust, if the adoptive father desired to obtain some advantage, on account of which his son would have more esteem for him after his emancipation.

108The Same, Epistles, Book X. I stipulated with Titius as follows, “If some woman marries me, do you promise to give me ten aurei by way of dowry?” The question arose whether such a stipulation was valid. The answer was that if the dowry was promised to me, stipulating as follows: “Do you promise to pay me ten aurei by way of dowry, no matter what woman I marry?” there is no reason why the money should not be due, if the condition was complied with. For when a condition dependent upon the act of some person who is uncertain can create an obligation, as, for instance, “Do you promise to pay ten aurei if anyone ascends to the Capitol?” or, “If anyone demands ten aurei of me, do you promise to pay as many?” there is no reason why the same answer should not be given as in the case where a dowry was promised. 1Ad Dig. 45,1,108,1ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.No promise is valid which depends upon the will of the person who makes it.

109Pomponius, On Quintus Mucius, Book III. If I stipulate as follows, “Will you pay me ten, or fifteen aurei?” ten will be due. Again if I stipulate as follows, “Will you pay after one, or two years?” the money will be due after two years; because in stipulations, the smallest amount of money, and the longest period of time are considered to be inserted in the obligation.

110The Same, On Quintus Mucius, Book IV. If I stipulate for ten aurei for myself and Titius, when I am not under his control, ten aurei will not be due to me, but only five, as the other half will be deducted; for when I have improperly stipulated for the benefit of a stranger my share will not be increased to that extent. 1Ad Dig. 45,1,110,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 84, Note 11.If I stipulate with you as follows, “Do you promise to give me any women’s clothing which belongs to you?” the intention of the stipulator rather than that of the promisor should be taken into account, and attention should be paid to whatever was in existence, and not to what the promisor had in his mind at the time. Therefore, if the promisor was accustomed to wear a woman’s garment, it will still be due.

111The Same, On Quintus Mucius, Book V. If I stipulate that you shall do nothing to prevent me from making use of a certain house, and you do not prevent me, but prevent my wife from doing so; or, on the other hand, if my wife should make the stipulation, and you should prevent me from making use of the house, does the stipulation become operative? These words should be understood in their broadest signification; for even if I stipulate that you shall do nothing to prevent me from making use of any kind of a right of way, and you do not prevent me from doing so, but interfere with another who enters in my name, it must be held that the stipulation becomes operative.

112The Same, On Quintus Mucius, Book XV. If anyone stipulates for “Stichus or Pamphilus, whichever one he pleases,” he can demand either one that he selects, and he alone will be included in the obligation. If, however, it is asked whether he can change his mind, and demand the other, the terms of the stipulation must be examined in order to ascertain whether its terms are expressed as follows: “The one whom I would have chosen,” or “The one whom I may choose.” If the first of these was employed, the stipulator cannot change his mind after he has once made his selection; but if the words admit of discussion, and are, “The one whom I may choose,” he is at liberty to change his mind until he has made his final decision. 1If anyone stipulates as follows, “Will you give me security for a hundred aurei?” and he gives a surety for this amount; Proculus says that the interest of the stipulator is always considered in the agreement for security, as sometimes this extends to the entire principal, as, for instance, where the promisor is not solvent, and sometimes to less, where the debtor is only partly solvent; and again it amounts to nothing, if the debtor is so wealthy that we have no interest in requiring security from him; but in estimating the solvency of the persons, their integrity, rather than the value of their property, should be taken into consideration.

113Ad Dig. 45,1,113Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 2.Proculus, Epistles, Book II. When I stipulate for myself as follows: “Proculus, if the work is not completed, as I desire it to be, before the Kalends of June, do you promise to pay such-and-such a sum by way of penalty?” and I extend the time; do you think that it may be said that the work has not been done, as I wished it to be, before the Kalends of June, when I, myself, voluntarily gave more time for its completion? Proculus replied that it is not without reason that a distinction should be made whether the promisor was in default in not finishing the work before the Kalends of June, as was agreed upon in the stipulation; or, whether, as the work could not be completed before that date, the stipulator extended the time to the Kalends of August. For if the stipulator extended the time when the work could not be completed before the Kalends of June, I think that the penalty would attach; for it makes no difference if some time had passed before the Kalends of June, during which the stipulator did not desire that the work should be finished before that date; that is to say, that he did not expect something to be done which could not be done. Or, if this opinion is incorrect, even if the stipulator should die before the Kalends of June, the penalty will not be incurred; as being dead, he could not signify his wishes, and some time would remain after his death for the completion of the work. And I am almost inclined to believe that the penalty would be incurred, even if enough time to complete the work was not left before the Kalends of June. 1When anyone sells something, and promises to furnish sureties to the purchaser, and guarantees the property sold to be free from encumbrance, and the purchaser desires the property to be free from all liens, and he who promised that it should be under the stipulation is in default; I ask, what is the law? Proculus answered that the vendor will be responsible to the extent of the plaintiff’s interest, in accordance with the amount of damages assessed in court.

114Ad Dig. 45,1,114Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 278, Note 2.Ulpianus, On Sabinus, Book XVII. If I stipulate for the transfer of a specified tract of land, upon a certain day, and the promisor is responsible for it not having been transferred on that day, I can recover damages to the amount of my interest in not having the delay take place.

115Papinianus, Questions, Book II. Ad Dig. 45,1,115 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 7.I stipulated as follows: “Do you promise to appear in a certain place, and if you do not do so, to pay fifty aurei?” If, through mistake, the time was omitted in the stipulation, when it was agreed that you should appear on a certain day, the stipulation will be imperfect. It is just the same as if something which could be weighed, counted, or measured had been stipulated for by me, without adding the weight, amount, or measure; or where a house was to be built, and the place was not mentioned; or a tract of land was conveyed, without giving its description. If, however, it was understood from the beginning that you might appear on any day whatsoever, and, if you did not do so, that you should pay a specified sum of money, this stipulation would be valid, just as any other made under a condition, and it would not become operative before it was established that the person who made the promise could not appear. 1Ad Dig. 45,1,115,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 286, Note 3.If, however, I should stipulate as follows, “Do you promise to pay a hundred aurei, if you do not ascend to the Capitol, or go to Alexandria?” the stipulation does not immediately become operative, even though you may be able to ascend to the Capitol, or to go to Alexandria; but only when it becomes certain that you can neither ascend to the Capitol, or go to Alexandria. 2Ad Dig. 45,1,115,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 286, Note 3.Again, if anyone stipulates as follows, “Do you promise to pay a hundred aurei if you do not deliver Pamphilus?” Pegasus says that the stipulation does not take effect before it becomes impossible for Pamphilus to be delivered. Sabinus, however, thinks that, according to the intention of the contracting parties, an action can be brought after the slave could have been delivered; but that proceedings cannot be begun under the stipulation, as long as it was not the fault of the promisor that he was not delivered. He sustains this opinion by giving the example of a legacy left for maintenance. For Mucius stated that if an heir was able to furnish maintenance, and did not do so, he would immediately become liable for the money bequeathed. This rule was adopted because of its utility, as well as on account of the wishes of the deceased, and the nature of the thing itself. Hence the opinion of Sabinus may be adopted, if the stipulation does not begin with a condition, for instance, “Do you promise to pay such-and-such a sum, if you do not deliver Pamphilus?” But what if the stipulation was expressed as follows, “Do you promise to deliver Pamphilus, and if you do not do so, do you promise to pay such-and-such a sum?” This undoubtedly would be true, if it was proved to be the intention that if the slave was not delivered, both the slave and the money would be due. If, however, it was promised that the money alone would be due if the slave was not delivered, the same opinion could be maintained; since it was established that the intention of the parties was that the slave should be delivered, or the money paid.

116Ad Dig. 45,1,116ROHGE, Bd. 13 (1874), Nr. 62, S. 174: Schadlosbürgschaft. Einwand der Vorausklage.The Same, Questions, Book IV. If, after having stipulated for ten aurei from Titius, you stipulate with Mævius for all that you cannot obtain from Titius, there is no doubt that Mævius can be compelled to assume responsibility for the payment of the entire amount. If, however, you bring an action against Titius for the ten aurei, Mævius will not be released from liability until Titius has paid the judgment. Paulus says that Mævius and Titius are not liable under the same obligation, but that Mævius is liable on condition that you cannot collect the amount from Titius. Therefore, after Titius has been sued, Mævius will not be discharged from liability, because it is uncertain whether he will owe the money or not; and if Titius should pay, Mævius will not be released, as he was not liable; for the condition upon which the stipulation was dependent has failed; and Mævius cannot properly be sued, while the condition of the stipulation is still pending, for nothing legally can be demanded of him until Titius has been exhausted.

117The Same, Questions, Book XII. If, after having stipulated for a hundred slaves to be chosen by myself and my heir, I leave two heirs before I make my choice, the stipulation will be divided by the number. It will, however, be different if the heir should succeed after the slaves have been chosen.

118The Same, Questions, Book XXVII. A man who is free and who is serving me in good faith as a slave makes a promise to me as stipulator; and this stipulation is almost entirely valid in every respect, even though he may promise me something which is my own property. For what else can be said to show that a freeman is not liable? And still, if I promise the same person as a stipulator, under similar circumstances, I will be liable. For how will he be entitled to an action against me which he would have acquired for my benefit, if he had stipulated with a third party? Therefore, in this respect, he should be compared to a slave in whom someone enjoys the usufruct, or to the slave of another who is serving in good faith. But when a slave promises the usufructuary, or the slave of another who is serving a bona fide purchaser in good faith, with reference to property which belongs to either of them, an action De peculia will not be granted against the master; because, in cases of this kind, such persons are considered as masters. 1“Do you promise to pay ten aurei to-day?” I said that the money could be demanded on this very day, and that the claimant could not be held to have proceeded too soon, even if the day of the stipulation had not ended, which would be the law under other circumstances. For what ought not to be demanded within a certain time cannot be paid within that time; and in the case stated the day is considered to be inserted, not for the purpose of deferring the action, but in order to show that it can be begun at once. 2“Do you promise to pay ten aurei to me, or to Titius, whichever one I may choose?” So far as payment to me is concerned, the. stipulation is certain, but with reference to payment to him it is uncertain. For suppose that it is to my interest that payment should be made to Titius, rather than to myself, as I promised a penalty if payment is not made to Titius?

119The Same, Questions, Book XXXVI. The clause for the prevention of fraud which is placed at the end of a stipulation does not relate to those parts of the agreement concerning which provision is expressly made.

120The Same, Questions, Book XXXVII. If I stipulate as follows, “Do you promise to pay this sum of a hundred aurei?” although the clause, “Provided there are a hundred aurei,” is understood, this addition does not establish a condition, for if there are not a hundred aurei, the stipulation is void; and it has been decided that a clause which does not refer to the future, but to the present time, is not conditional, even though the contracting parties may be ignorant of the truth of the matter.

121The Same, Opinions, Book XI. Where both parties to the stipulation agree to the provision that no fraud has been, or shall be committed in the transaction, suit for an uncertain amount can be brought, in order that the stipulation may be expressed in a more proper manner. 1A woman who was living in the same house with a man with the intention of marrying him stipulated with him for the payment of two hundred aurei, if, during the time of the marriage, he resumed his custom of keeping a concubine. I gave it as my opinion that there was no reason why the woman could not recover the money under the stipulation, if the condition was fulfilled, as the agreement was in accordance with good morals. 2A man, having been banished to an island, made a promise, the stipulation being expressed as follows, “Do you promise to pay when you die?” the stipulation will not become operative unless the promisor should die. 3A stipulation with reference to fraud will bind the heir of him who makes the promise by the mere act of the latter; just as is the case in other contracts, for instance, those of mandate and deposit.

122Scævola, Digest, Book XXVIII. A man who borrowed money at Rome which was to be paid within three months in a distant province promised the stipulator to pay it there; and, a few days afterwards, told his creditor in the presence of witnesses that he was ready to pay the money at Rome, if the amount which he had paid to him as interest was deducted. The question arose if, after having tendered the entire amount to which he was liable under the stipulation, it could be demanded of him, when it became due, in the place in which he promised to pay it. The answer was that the stipulator could demand it on the day when it became due, and at the place where he agreed it should be paid. 1Ad Dig. 45,1,122,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 371, Note 10.Callimachus borrowed money from Stichus, the slave of Seius, in the province of Syria, for the purpose of being used in maritime trade from the city of Berytus to Brindisi. The loan was for the two hundred days required for the voyage, was secured by the pledge and hypothecation of merchandise purchased at Berytus, to be taken to Brindisi, and also included that which was to be purchased at Brindisi, and conveyed to Berytus; and it was agreed between the parties that when Callimachus arrived at Brindisi, he should depart from there by sea, before the next Ides of September, with the other merchandise which he had purchased and placed on board the ship; or if, before the time above mentioned, he did not purchase the merchandise or leave the said city, that he would immediately repay the entire amount, just as if the voyage had been completed; and that he would pay to those demanding the money all the expenses incurred in taking it to Rome; and Callimachus promised Stichus, the slave of Lucius Titius, as stipulator, to pay and perform all this faithfully. And when, in accordance with the agreement, before the above-mentioned ides, the merchandise had been placed on board the ship, Callimachus embarked with Eros, the fellow-slave of Stichus, with the intention of returning to the province of Syria; and the ship having been lost, and Callimachus, as had been agreed, having placed the merchandise on the ship leaving Berytus at the time when he ought to have repaid the money to be taken to Rome, the question arose whether he could profit by the consent of Eros, who had been with him, and to whom his master had neither permitted, nor ordered anything more to be done with reference to the money, after the day which was agreed upon for its payment, than to take it to Rome as soon as he had received it; and whether Callimachus would still be liable in an action on the stipulation for the delivery of the money to the master of Stichus. The answer was that, according to the facts stated, he would be liable. I also ask, as Callimachus had sailed after the day above mentioned, with the consent of Eros, the said slave, whether the latter could deprive his master of the right of action after it once had been acquired by him. The answer was that he could not do so, but that there would be ground for an exception, if it had been left to the judgment of the slave whether the money should be paid at any time, and at any place that he might select. 2Flavius Hermes donated the slave Stichus, in order that he might be manumitted, and made the following stipulation with reference to him: “If the said slave, Stichus, whom I have this day delivered to you as a donation for the purpose of his manumission, should not be manumitted, and set free in proper form by you and your heir (provided this is not prevented by some fraud on my part), Flavius Hermes has stipulated for fifty aurei to be paid by way of penalty, and Claudius has promised to pay this sum.” I asked whether Flavius Hermes can bring an action against Claudius for the freedom of Stichus. The answer was that there is nothing in the facts stated to prevent him from doing so. I also ask, if the heir of Flavius Hermes wished to collect the penalty from the heir of Claudius, whether the latter could give Stichus his freedom, in order to be released from the penalty. The answer was that he could. I also ask, if the heir of Flavius Hermes did not wish to bring suit against the heir of Claudius for the reason above stated, whether the freedom to which Stichus was entitled in accordance with the agreement entered into by Hermes and Claudius, as evidenced by the above-mentioned stipulation, should still be granted by the heir of Claudius. The answer was that it ought to be done. 3Certain co-heirs, having divided the lands of an estate, left one tract to be held in common, under the condition that if anyone wished to alienate his share of the same he should sell it either to his co-heirs or the successor of the latter, for the sum of a hundred and twenty-five aurei. The parties mutually stipulated for the payment of a hundred aurei by way of penalty, if any of them should violate this contract. A woman who was one of the co-heirs, having frequently notified the guardians of the children of her co-heir, in the presence of witnesses, and requested them to either purchase or sell the said tract of land, in accordance with the agreement, and the guardians having done nothing, I ask whether, if the woman should sell the land to a stranger, the penalty of a hundred aurei could be collected from her. The answer was that, in accordance with the facts stated, she could, under such circumstances, interpose an exception on the ground of bad faith. 4Agerius, a son under paternal control, promised the slave of Publius Mævius, as the stipulator, that he would pay him whatever it might be decided that his father owed Publius Mævius. The question arose how much he would owe, his father having died before the amount was ascertained; and, if suit was brought against his heir, or some other successor, and a decision rendered with respect to the indebtedness, whether Agerius would be liable. The answer was, that if the condition was not fulfilled, the stipulation would not become operative. 5Seia, the heir of a single guardian, having made an agreement based on a settlement with the heir of a female ward, paid the greater part of the debt, and gave security for the remainder; the said heir, however, immediately refused to abide by the agreement, brought an action on guardianship, and, having lost his case, appealed to a competent judge, and afterwards from him to the Emperor; and this appeal was decided to have been taken on insufficient grounds. As the heir of the ward was in default in receiving the money mentioned in the stipulation from the heir of the guardian, having never even demanded it, the question arose whether interest would now be due from the heir of the guardian. The answer was, that if Seia had not been in default in tendering the money provided for by the stipulation, interest would not legally be due. 6Two brothers divided an estate between them, and mutually obligated themselves to do nothing against the division, and if either of them violated the agreement, that he would pay a penalty to the other. After the death of one of them, the survivor brought an action for the estate against his heirs, alleging that it was due to him under the terms of a trust bequeathed by his father; and judgment was rendered against him on the ground that he had made a compromise with reference to the matter. The question arose whether the penalty was incurred. The answer was that, in accordance with the facts stated, the penalty would be due.

123Ad Dig. 45,1,123ROHGE, Bd. 15 (1875), Nr. 7, S. 18: Verweisung des Gläubigers seitens eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?Papinianus, Definitions, Book I. A stipulation entered into concerning a crime which has been Or is to be committed, is void from the beginning.

124The Same, Definitions, Book II. “Do you promise to build a house in such-and-such a place within two years?” The stipulation will not become operative before the end of two years, even though the person making the promise should not build it, and sufficient time does not remain in which it can be completed; for the provisions of the stipulation, the time of which was fixed in the beginning, cannot be changed by something which may afterwards occur, and this was inserted in the agreement for the purpose of compelling someone to appear in court; that is to say, the stipulation will not become operative before the prescribed date, even if it is certain that there is not sufficient time remaining to comply with the contract.

125Paulus, Questions, Book II. When we stipulate as follows, “Whatever you must give, or pay, or do,” nothing more is included in such a stipulation than what is due at the present time, for it does not provide for anything else.

126The Same, Questions, Book III. Where I stipulate as follows, “If Titius should become Consul, do you then promise from that day to pay ten aurei every year?” If the condition is fulfilled after three years, thirty aurei can be demanded. 1Titius stipulated with Mævius for a tract of land, with the reservation of its usufruct, and also for the usufruct of the same land. There are two stipulations, and there is less in the usufruct which anyone promises by itself than there is in that which accompanies the ownership. Finally, if the promisor should give the usufruct, and the stipulator should lose it by non-user, and afterwards convey the land with the reservation of the usufruct, he will be released from liability. The same thing, however, does not happen in the case of one who promises the land without any reservation, and conveys the usufruct, and afterwards, having lost the usufruct, conveys the ownership of the land without it; for, in the first instance, he will be released by the transfer of the usufruct, but, in the second, he will be discharged from no part of the obligation, unless he conveys the land, with all the rights attaching thereto, to the stipulator. 2“I, Chrysogonus, the slave of Flavius Candidus, and his agent, have stated in writing, in the presence of my master, who has also subscribed and sealed this instrument, that, having received a thousand denarii as a loan from Julius Zosa, the agent of Julius Quintillianus, who is absent, the said Zosa, freedman and agent of the said Quintillianus has stipulated that the said money shall be paid to Quintillianus, or his heir, entitled to the same, upon the next Kalends of November; and my master, Candidus, has promised, and Julius Zosa has stipulated, that if the money is not paid on the day aforesaid, interest shall be due at the rate of eight denarii for the time during which the sum remains unpaid. Flavius Candidus, my master, has given this promise, and has signed this instrument.” I gave it as my opinion that we cannot acquire any obligation by means of any free person who is not subject to our authority, or does not serve us in good faith as a slave. It is clear that if a freeman pays a sum of money in our name, which either belongs to him, or to us, in order that it may be paid to us, he acquires for us the obligation of a loan; but what a freedman stipulates to be paid to his patron is void, so that he does not benefit a person who is absent and is intended to be made the principal creditor, even to the extent of receiving payment. It remains to be ascertained whether, after the money has been counted, the contracting party can collect the sum which was lent; for whenever we loan money, and stipulate for the same money, two obligations are not created, but only a single verbal one. It is clear that if the coins were counted first, and the stipulation followed, it cannot be said that the natural obligation was departed from. Where the stipulation follows, and interest is agreed upon without mentioning the name of the person entitled to it, this has not the same defect; but it must not be considered to the detriment of the patron to hold that the freedman has stipulated for interest for the benefit of him who is entitled to the principal; and hence the stipulation for interest will profit the freedman, but he will be compelled to surrender it to his patron; for, as a rule, in stipulations the words from which the obligation arises should be considered. Rarely does the intention appear to include a time or condition, and it never includes a person, unless this is expressly stated. 3If I stipulate for you to appear in court, and, if you do not do so, that you shall give something which is impossible for the promisor to furnish; the second stipulation is omitted, and the first one remains valid, and it will be just the same as if I had merely stipulated for you to appear in court.

127Scævola, Questions, Book V. If a ward, without the authority of his guardian, promises Stichus to give a surety, and the slave dies after the ward has been in default, the surety will not be liable on this account; for no default can be understood to take place where no right to make a demand exists. The surety, however, will be liable to the extent that he can be sued during the lifetime of the slave, or afterwards, if he himself should be in default.

128Paulus, Questions, Book X. When there are two contracting parties, and one of them stipulates for something that is valid, and the other for something that is void, payment cannot properly be made to him to whom the promisor is not liable; because payment is not made to him in the name of another, but on account of an obligation of his own which is of no force or effect. For the same reason, where anyone stipulates for Stichus or Pamphilus, and the obligation is only valid with reference to one of them, because the other belongs to the stipulator, and even if he should cease to belong to him, delivery cannot legally be made, because both the objects of the stipulation have reference to the obligation and not to payment.

129Scævola, Questions, Book XII. Where anyone stipulates as follows, “Will you pay ten aurei if a ship arrives, and Titius becomes Consul?” the money will not be due unless both of these events take place. The same rule applies to the opposite case, “Do you promise if a ship does not arrive, and Titius does not become Consul,” for it is essential that neither of these things should occur. The following written agreement resembles this, namely, “If a vessel does not arrive, and Titius is not made Consul.” When, however, the stipulation is in the following terms, “Will you pay if a ship arrives, or Titius becomes Consul?” it is sufficient for one of these events to take place. On the other hand, if it is expressed as follows, “Will you pay if a ship does not arrive, or Titius does not become Consul?” it will be sufficient if only one of these things does not occur.

130Paulus, Questions, Book XV. When it is said that a father legally stipulates for his son just as he stipulates for himself, this is true so far as matters which can be acquired by the father under his right of paternal authority are concerned. Otherwise, the stipulation will be yoid if the act has reference to the son personally; as, for instance, if it provided that he should be permitted to hold property, or to enjoy a right of way. On the other hand, the son, by stipulating for his father to enjoy a right of way, acquires it for him; nay more, he acquires for his father what he himself cannot individually obtain.

131Scævola, Questions, Book XIII. Julianus says, “If I stipulate that nothing shall be done either by you or by Titius, your heir, to prevent me from using the right of way,” not only Titius will be liable, if he does anything to prevent this, but his co-heirs as well. 1A person who stipulates that a tract of land shall be conveyed to him, or Titius, even though the land may be conveyed to Titius, can still claim it, in order that he may be guaranteed against eviction; for he is interested, as he can recover the land from Titius in an action on mandate. If, however, he merely interposed Titius for the purpose of making a donation, it can be said that the principal debtor is at once released by its delivery.

132Paulus, Questions, Book XV. Where anyone undertakes the care of the son of another, and promises the person who places him in his charge that he will pay a certain sum of money if he should treat him otherwise than as a son, and, after he had driven him from the house, or, at the time of his death, left him nothing by his will, I ask if the stipulation will become operative, and whether it makes any difference if the youth referred to is the son, the foster-child, or a relative of the stipulator. I ask, besides, if anyone should legally give his son in adoption, and the stipulation should have been made as above mentioned, and his adoptive father should disinherit or emancipate him, whether the stipulation will become operative? I answered that the stipulation is valid in both instances. Therefore, if anything is done in violation of the agreement, the stipulation will take effect. But in the case in which there was a lawful adoption, let us first consider whether suit can be brought if the individual disinherited or emancipated is an adopted son, for a father is accustomed to do these things with reference to his son, and hence he did not treat him otherwise than he might have done his own son. Therefore, he who was disinherited can bring an action on the ground of inofficiousness. But what shall we say if he deserved to be disinherited? It is clear that an emancipated son is not entitled to this remedy, hence the adoptive father should agree to pay a specified sum if he emancipated, or disinherited him. Still, in this case, if the stipulation became operative, it might be asked whether the disinherited son should be permitted to allege that the act was inofficious; especially if he was the natural heir of his father, and if he should lose his case, whether an action under the stipulation could be refused him. If, however, it should not be refused the stipulator, and the son should lose his case, he ought not to be denied the right to collect the money which was due. With reference to one who did not adopt him, I do not see how the following clause, “If he should treat him otherwise than as a son,” must be understood. Shall we, in this instance, require disinheritance or emancipation, acts which cannot be performed by a stranger? If he who adopted the son in accordance with law does nothing contrary to the terms of the stipulation, when he makes use of his right as a father, he speaks to no purpose when he refers to one who does not do this. Still, it may be said that the stipulation becomes operative. 1Where a son under paternal control stipulates as follows, “Will you be responsible for all the money which I shall lend to Titius?” and, after having been emancipated, he lends him money, his surety will owe nothing to the father, because the principal debtor is not liable to him.

133Scævola, Questions, Book XIII. If I stipulate as follows, “Do you promise that force will not be employed by you, or by your heir?” and I bring suit against you because you used violence against me, any act of this kind committed by the heir will still properly remain subject to the terms of the stipulation; for it can take effect, even if force is subsequently employed by the heir, as reference is not merely made to a single act of violence. For, just as the person of the heir is included, so also are any act or acts of violence committed by him, in order that judgment may be rendered against him to the amount of the other party’s interest. Or, if we wish the stipulation to be as follows, “Do you promise that nothing shall be done by you or by your heir?” so that it may relate to only the first act of violence committed, and if this occurs, the stipulation will not take effect a second time, on account of any act of the heir. Therefore, if an action based on this act of violence is brought, nothing further can be done under the stipulation. This is not true.

134Paulus, Opinions, Book XV. Titia, who had a son by a former husband, married Gaius Seius, who had a daughter; and, at the time of the marriage, they made an agreement that the daughter of Gaius Seius should be betrothed to the son of Titia, and an instrument was drawn up to this effect with a penalty added, if either of the parties placed any impediment in the way of the marriage. Gaius Seius afterwards died during his marriage, and his daughter refused to marry her betrothed. I ask whether the heirs of Gaius Seius are liable under the stipulation. The answer was that, in accordance with the facts stated, as in accordance with good morals, proceedings could not be instituted under the stipulation, an exception on the ground of bad faith might be pleaded against the party bringing the suit, because it is considered dishonorable for marriages which are to take place in the future, or where they already have been contracted, to be hampered by the imposition of penalties. 1Ad Dig. 45,1,134,1BOHGE, Bd. 1 (1871), S. 22: Auslegung eines Vertrages nach den übrigen zweifellosen Vertragsbestimmungen.The same authority gave it as his opinion that, in general, matters which are inserted in the preliminaries are also understood to have been repeated in the stipulation, so that the agreement does not become void on account of a repetition of this kind. 2The same authority held that Septicius, having provided for the payment of money by instruments in writing as well as for interest at six per cent, which was deposited with Sempronius, and this transaction having taken place between persons who were present, it should be understood that, even so far as Lucius Titius was concerned, the provisions of the stipulation had already been accepted. 3The same authority was of the opinion that, where several different contracts had been entered into, and a single stipulation was subsequently made with reference to all of them, even though there was but one interrogatory, and one answer, still it was the same as if each agreement constituted a separate stipulation.

135Scævola, Opinions, Book V. If anyone should make the following promise, “I will pay you ten aurei upon the day that you demand them, and interest on the same every thirty days,” I ask if the interest will be due from the date of the stipulation, or from the time when the principal was demanded. The answer was that, according to the facts stated, the interest will be due from the day of the stipulation, unless it is clearly proved that the intention was otherwise. 1The question was also asked if I should pay the money as soon as it was demanded. The answer was that, according to the facts stated, it began to be due from the day on which the stipulation was made. 2Ad Dig. 45,1,135,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 6.Seia entered into a contract with Lucius Titius that, as he had directed her to buy a garden for him, when she had received the entire price of the same with interest, she would transfer the ownership of the garden to him. It was agreed between them immediately afterwards that he should pay her the entire amount before the first Kalends of April, and receive the garden. As all the purchase-money with interest was not paid by Lucius Titius to Seia before the Kalends of April, but he was ready to pay the balance, together with the interest, within a reasonable time, and if Seia refused to accept it, it was not his fault that the balance was not paid, the question arises, if Lucius Titius is still ready to pay the entire amount to Seia, whether he can bring suit under the stipulation. The answer was that he could, if he tendered the money not long afterwards, and if the woman did not suffer any damage on account of the delay; all of which should be referred to the decision of the court. 3Titius stated in an instrument in writing that a slave had been given and delivered to him by Seia, under the condition that he should not come into the hands of his brother, his son, his wife, or his brother-in-law. Seia having stipulated for this, Titius agreed to it, and after the lapse of two years died, leaving two heirs, Seia and his brother, to whom it had expressly been provided that the slave should not belong. The question arose whether Seia could bring suit under the stipulation against this brother, who was her co-heir. The answer was that she could do so, to the extent of her interest. 4A daughter, who instituted proceedings against a will as being inofficious, and afterwards compromised with the heirs by means of a stipulation, in which was inserted the clause relating to fraud, brought an action before the Prefect attacking the will as forged, but was unable to prove this. I ask whether she could be sued under the clause providing against fraud. I answered that whatever was done afterwards had nothing to do with the stipulation.

136Paulus, Opinions, Book V. Where the property with reference to which the stipulation is made has different names of the same meaning, the validity of the obligation is not affected, if one party uses one name and the other another. 1If anyone should stipulate for a right of way to enable him to reach his land, and he afterwards, before the servitude is established, alienates the land or a part of the same, the stipulation will be annulled.

137Venuleius, Stipulations, Book I. The act of the stipulator and the promisor should be continuous, in such a way, however, that any short interval may be permitted to intervene, and the stipulator may be answered with very little delay. If, however, after the interrogatory has been put, something else should be done, the stipulation will be void; even though the promisor answered upon the same day. 1If I stipulate for a slave, and I have one slave in my mind, and you have another, the transaction will be void; for a stipulation is perfected by the consent of both parties. 2When I stipulate as follows, “Do you promise to pay at Ephesus?” a certain time is implied. The question arises, what time should be understood? The better opinion is to refer the entire matter to a court, that is to say to an arbiter, who will estimate how much time the diligent head of a household would require to be able to accomplish what he had promised to do; so that where anyone agreed to pay at Ephesus, he would not be compelled to travel at great speed day and night, and continue his journey regardless of every kind of weather; nor should he travel so leisurely as to appear worthy of blame; but the season, as well as the age, sex, and condition of health of the promisor, should be taken into account, in order that he may act so as to arrive promptly, that is to say, within the time that most men of his rank would ordinarily consume in making the journey. This having elapsed, even if he remained at Rome, he would not be able to pay the money at Ephesus; still he could properly be sued, either because it was his own fault that he did not make payment at Ephesus, or for the reason that he could pay it there by another, or indeed could pay it anywhere. For anything which is due at a certain time can be paid before that time, although it cannot be demanded. If, however, having used the post, or having had an unusually favorable sea voyage, he should arrive at Ephesus sooner than anyone else ordinarily could have done, he will immediately become liable, because when anything is determined by time, or by the performance of an act, there is no longer ground for conjecture. 3Again, where anyone promises to build a house, there is no need of searching for workmen everywhere, and hastening to procure the largest number possible; nor, on the other hand, should the promisor be satisfied with only one or two, but a moderate number should be obtained in accordance with the conduct of a diligent builder, the time and place also being taken into consideration. Likewise, if the work is not begun, that only will be estimated which could have been completed during the interval, and if, after the time has passed which would have been required to finish the house, it is afterwards constructed, the contractor will be released from liability, just as a person will be released who promises to give himself up, if he does so at any time afterwards. 4Ad Dig. 45,1,137,4ROHGE, Bd. 17 (1875), Nr. 83, S. 366: Liberation des Beschädigten von den übernommenen Verpflichtungen. Schadensersatz.It should be considered whether someone who has promised to pay a hundred aurei becomes liable immediately, or whether the obligation remains in abeyance until he can collect the money. But what if he has no money at home, and cannot find his creditor? These matters, however, differ from natural obstacles, and involve the ability to pay. This ability, however, is represented by the ease or difficulty of the person, and does not refer to what is promised; otherwise, if anyone should agree to deliver Stichus, we ascertain where Stichus is; or if it makes much difference when delivery is to be made at Ephesus, or where the person, being at Rome, promises to deliver something which is at Ephesus; for this also has reference to the ability to give, because there is something in common in the payment of the money, and the delivery of the slave, and that is, that the promisor cannot immediately do either. And, generally speaking, the cause of the difficulty has reference to the inconvenience of the promisor, and not to interference by the stipulator; lest it might be alleged that he who has promised to give a slave belonging to another cannot do so because his master is unwilling to sell him. 5If I stipulate with someone who cannot do what is possible for another to accomplish, Sabinus says that the obligation is legally incurred. 6Ad Dig. 45,1,137,6ROHGE, Bd. 15 (1875), Nr. 7, S. 18: Verweisung des Gläubigers seitens eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?When anyone stipulates under the following condition: “If Titius should sell a sacred or religious place, or a market, or a temple,” or anything of this kind, which has been perpetually set apart for the use of the public, and the condition cannot, under any circumstances, legally be complied with, or if the promisor cannot do what is agreed upon, the stipulation will be of no force or effect, just as if a condition which was impossible by nature had been inserted into it. Nor does it make any difference if the law can be changed, and what is now impossible may become possible hereafter, for the stipulation should be interpreted, not according to the law of the future, but according to that of the present time. 7When we stipulate for something to be done, Labeo says that it is customary, and more advisable, for a penal clause to be added, as follows: “If this is not done in this way.” But when we stipulate against something being done, we provide as follows, “If anything contrary to this should be done.” And when we stipulate conjointly, that some things shall be done, and others shall not, the following provision should be inserted, namely, “If you do not do this, or if you do anything contrary to this.” 8Ad Dig. 45,1,137,8ROHGE, Bd. 12 (1874), Nr. 106, S. 360: Verträge zu Gunsten eines Contrahenten und eines weiteren noch unbestimmten Personenkreises. Aufführungsrecht für den Theaterdirector und dessen Nachfolger.Moreover, it should be remembered that what we stipulate shall be given cannot be acquired by only one of our heirs, but must be acquired by all of them. But when we stipulate that something shall be done, only one of them can legally be included.

138The Same, Stipulations, Book IV. When anyone stipulates for something to be given to him on certain market-days, Sabinus says that he can demand it after the first day. Proculus, however, and other authorities of the rival school, think that it can be demanded as long as the smallest part of the market day specified remains. I agree with Proculus. 1When I stipulate absolutely, as follows, “Do you promise to give this, or that?” you can change your mind with reference to what you have to give, as often as you please; because there is a difference between an intention which is expressed, and one which is implied.

139The Same, Stipulations, Book VI. When we attempt to obtain anything by virtue of a double stipulation, the heirs of the vendor should all be sued for the entire amount, and all of them should defend the case; and if one of them fails to do so, it will be of no advantage to the others to make a defence, because the sale must be defended in its entirety, as its nature is indivisible. Where, however, one of them is in default, all are considered to be so; and therefore all of them will be liable, and each one will be required to pay in proportion to his share of the estate.

140Paulus, On Neratius, Book III. After several things were proposed, the following stipulation was agreed to, “Do you promise that everything above mentioned shall be given?” The better opinion is that there are as many stipulations as there are things. 1Ad Dig. 45,1,140,1ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.With reference to the following stipulation, “Do you promise to pay this money on the day appointed in one, two, and three years?” a diversity of opinion existed among the ancients. Paulus: I hold that, in this instance, there are three stipulations for three different sums of money. 2Although it is established that an obligation is extinguished if the conditions are such that it cannot begin, this is not true in all cases. For instance, a partner cannot stipulate for a right of way of any kind for the benefit of land owned in common; and still, if he who stipulated should leave two heirs, the stipulation will not be extinguished. Again, a servitude cannot be acquired by a few of the proprietors, but what is acquired can be preserved for the benefit of the joint ownership. This occurs where a part of the servient estate, or of that to which the servitude is due, becomes the property of another owner.

141Gaius, On Oral Obligations. If a slave, or a son under paternal control, stipulates as follows, “Do you promise to give this article or that, whichever I may wish?” neither the father nor the master, but only the son or the slave, can decide as to the selection of one of the articles. 1If a stranger personally is included in the stipulation, for instance, as follows, “Whichever one Titius may choose,” the stipulator has no right to demand either of the articles, unless Titius has selected it. 2Although a ward can legally stipulate from the moment when he can speak for himself, still, if he is under the control of his father, he will not be liable, unless with his authority; but a child who has arrived at puberty, and is under paternal control, is usually liable just as if he were the head of a household. What we have remarked with reference to a minor can also be said to apply to a son under paternal control who has not yet reached the age of puberty. 3If I stipulate as follows, “Do you promise to pay me or Titius?” and you answer that you will pay me; it is the opinion of all the authorities that you have properly replied to the interrogatory, for the reason that it is established that the right of obligation has been acquired by me alone, but only Titius should be paid. 4If the following stipulation should be made between persons who are at Rome, namely, “Do you promise to pay to-day at Carthage?” some authorities hold that such a stipulation does not always include what is impossible; because it may happen that both the stipulator and the promisor may have, some time previously, notified their agent that a stipulation would be made upon a certain day, and the promisor may have directed his steward to make payment, and the stipulator his to receive it; because, if entered into in this way, the stipulation would be valid. 5When I stipulate for myself or for Titius, it is said that I cannot stipulate for one thing for myself and another for him, as, for instance, ten aurei for myself, or a slave for Titius. If, however, what was specifically designated for Titius is given to him, although the promisor will not be released by operation of law, he still can plead an exception by way of defence. 6Different dates, however, may be fixed, for example, “Do you promise to pay me on the Kalends of January, or Titius on the Kalends of February?” and, again, a nearer date can be agreed upon with reference to Titius, as follows, “Do you stipulate to pay me on the Kalends of February, and Titius on the Kalends of January?” In this case we understand the stipulation to mean, “If you do not pay Titius on the Kalends of January, do you promise to pay me on the Kalends of February?” 7Moreover, I can stipulate for myself absolutely, or for Titius under a condition. On the other hand, if I stipulate for myself under a condition, and for Titius absolutely, the entire stipulation will be void, unless the condition relating to me personally should not be fulfilled: that is to say, the additional obligation will not be valid unless the one which has reference only to me individually takes effect. This, however, can only be determined in this way, if it becomes evident that Titius was added unconditionally; otherwise, if I should stipulate as follows, “If a ship arrives from Africa, do you promise to pay me, or Titius?” Titius is considered to have been added under the same condition. 8From this it appears that if one condition is imposed with reference to me, and another with reference to Titius, and that which has reference to me should not be fulfilled, the entire stipulation will be of no force or effect; but if my condition as well as that of Titius is complied with, payment can be made to Titius, still, if the condition should fail with reference to him, it will be considered as not having been added. 9From all these things it is evident that although another person cannot properly be added, the stipulation is none the less valid, so far as we are concerned.