Corpus iurisprudentiae Romanae

1 Ulpianus, On Sabinus, Book XXXIX. A surety can be added to every obligation.

2 Pomponius, On Sabinus, Book XXII. A surety can be taken for property which was loaned for use, or deposited, and he will be liable; even if the deposit or the loan was placed in the hands of a slave, or a ward, but only where those for whom security was given have been guilty of fraud or negligence.

3 Ulpianus, On Sabinus, Book XLIII. He who has promised to furnish security is considered to have complied with the stipulation, if he gives anyone for this purpose who can be rendered liable and be sued. If, however, he gives a slave, or a son subject to paternal authority, under circumstances when an action De peculia cannot be granted, or a woman, who can avail herself of the aid of the Decree of the Senate, it must be said that he has not complied with the stipulation to furnish security. If he gives a surety who is not solvent, it is clear that he should be considered to have complied with the agreement, because he who accepted the surety approved him as solvent.

4 The Same, On Sabinus, Book XLV. A surety can be taken in an action on mandate, or in one for business transacted, which I am about to bring against the person for whom I became surety. 1A surety is not only liable himself, but he also leaves his heir liable, because he occupies the position of a debtor.

5 The Same, On Sabinus, Book XLVI. Julianus says that, generally speaking, he who becomes the heir of a person for whom he appeared as surety is released so far as the latter is concerned, and is only liable as the heir of the principal debtor. Finally, he says that if the surety becomes the heir of him for whom he made himself responsible, he will be liable as the principal debtor, but will be released as surety; still a principal debtor who succeeds a principal debtor is liable under two obligations; for it cannot be ascertained which one of them annuls the other; but, in the case of a surety and a principal debtor, this can be easily determined, because the obligation of the principal debtor is the more binding. When any difference exists between the obligations; it can be held that one is annulled by the other. Where, however, they are both of the same force, and it cannot be ascertained why one of them should be annulled rather than the other, he refers this matter to an example in which he desires to show that there is nothing new in the fact that two obligations may exist in the same person at the same time. This is his example. If one of two joint-promisors becomes the heir of the other, he will be liable to two obligations. Likewise, if one joint-stipulator becomes the heir of the other, he will benefit by two distinct obligations. It is evident that, if he instituted proceedings under one of them, he will make use of both; that is to say, because the nature of the two obligations which he had is such that, if one of them is brought into court, the other will also be disposed of.

6 The Same, On Sabinus, Book XLVII. I stipulate with a debtor, but do not take a surety, and afterwards I wish a surety to be furnished. If I add a surety, he will be liable. 1It makes little difference whether I bind the surety absolutely, or from a certain time, or under some condition. 2A surety can, moreover, be furnished for a future as well as for a past obligation, provided this obligation is a natural one.

7 Ulpianus, Digest, Book LIII. For where what has been paid cannot be recovered, it is proper that a surety for this natural obligation should be received.

8 Ulpianus, On Sabimis, Book XLVII. In Greek, a surety is taken as follows: “In my good faith, I order, I say, I wish,” or “I wish, with a certain determination of mind.” If, however, anyone should say “I affirm,” it will be the same as if he had uttered the words, “I say.” 1It should also be remembered that a surety can be furnished for every kind of obligation, whether with reference to the property, verbally, or by consent. 2It should also be remembered that a surety can be taken for anyone who is liable under the Prætorian Law. 3A surety can be received after issue has been joined in the case, because the civil and natural obligation remains. This was admitted by Julianus, and is our practice. Hence, if the principal debtor loses his case, the question arises whether he can have recourse to an exception, for he is not released by operation of law. If he is not accepted for the payment of the judgment, but merely for the proceedings in court, it is very properly held that he can make use of an exception. Where, however, he has been taken for the entire case, he will not be entitled to an exception. 4Where a surety is given by a testamentary guardian he will be liable. 5If, however, the action is derived from a crime, we think that the better opinion is that the surety will be liable. 6And, generally speaking, no one doubts that a surety can be received in all kinds of obligations. 7The following rule is applicable to all those who are liable for others: namely, if they are made use of in order to impose more severe terms upon them, it has been decided that they will not be at all responsible. It is clear that they can be accepted in matters of inferior importance, for which reason a surety is very properly taken for a small amount. Again, the principal debtor being absolutely liable, the surety can be bound from a certain time, or under some condition. If, however, the principal debtor should be liable under a condition, and the surety absolutely, he will be released. 8If anyone should stipulate for Stichus, and receive a surety as follows, “Do you promise, on your good faith, to deliver Stichus, or pay ten aurei?” Julianus says that the surety will not be bound, because his condition is rendered harder, so that if Stichus should happen to die, he would still be liable. Marcellus, however, says that he is not liable, not only because his condition is rendered more onerous, but also for the reason that he has been accepted rather for another obligation. Finally, a surety cannot be received for a person who has promised to pay ten aurei, as follows, “Do you promise to pay ten aurei, or deliver Stichus?” although, in this instance, his condition is not rendered more burdensome. 9Julianus also says that where anyone has stipulated for a slave, or ten aurei, and takes a surety as follows, “Do you promise to deliver a slave, or pay ten aurei, whichever I wish?” the surety will not be bound, because his condition is rendered more onerous. 10On the other hand, where anyone stipulates for “A slave, or ten aurei, whichever the stipulator wishes,” he can properly take a surety under the following terms, “Ten aurei, or a slave, whichever you wish,” for Julianus says that in this way the condition of the surety is improved. 11But if I interrogate the principal debtor as follows, “Stichus and Pamphilus?” and the surety as follows, “Stichus, or Pamphilus?” I shall put the question properly, because the condition of the surety is rendered less burdensome. 12There is no doubt whatever that one surety can be taken for another surety.

9 Pomponius, On Sabinus, Book XXVI. Sureties can properly be taken for a part of the money, or for a part of the property.

10 Ulpianus, Disputations, Book VII. When a creditor doubts whether the sureties are solvent, and one of them, who is selected by him to be sued, is ready to give security, so that his fellow-sureties may be sued for their shares at his risk, I hold that he should be heard; but only provided he offers security, and that all his fellow-sureties who are said to be solvent are at hand. For the purchase of the claim is not always easy when the payment of the entire debt is not free from difficulties. 1The action is divided between the sureties, where they do not deny their liability. For, if they do deny it, the benefit of division should not be granted. 2A son under paternal control can give security for his father, and his act will not be without effect. In the first place, because, when he becomes his own master, he can be held liable to the extent of his means; and, besides this, judgment can be rendered against him, even if he remains subject to his father’s authority. Let us see, however, whether his father will be liable for the reason that he is held to have acted by his order. I think that this rule is applicable to all contracts; but if he became surety for his father without the knowledge of the latter, this action will not lie; still suit can be brought against his father on the ground that the proceeding was for the benefit of his property. It is clear that, if the emancipated son has paid the debt, he should be entitled to an equitable action, and the same action can be brought by him if he remains under the control of his father, and has paid the money for the latter, out of his peculium castrense.

11 Julianus, Digest, Book XII. Where anyone has lent money to a son under paternal control in violation of the Decree of the Senate, and the son is dead, he cannot take a surety from his father, because he is entitled to no action, either civil or prætorian, against his father, and there is no estate for which sureties can become liable.

12 The Same, Digest, Book XLIII. It is evident that a surety can properly be taken on account of the action De peculio, which will lie against the father.

13 The Same, Digest, Book XIV. If you lend ten aurei to Titius, by my direction, and bring an action on mandate against me, Titius will not be released from liability; but I ought not to have judgment rendered against me in your favor, unless you assign to me the rights of action which you have against Titius. Likewise, if you bring an action against Titius, I will not be released, but I will only be liable to you for the amount which you cannot collect from Titius.

14 The Same, Digest, Book XLVII. When the principal debtor becomes the heir of his surety, the obligation of suretyship is extinguished. What, then, must be done? If the principal debtor is sued for the claim, and makes use of the exception to which the surety was entitled, a replication in factum should be granted, for recourse can be had to one on the ground of fraud.

15 The Same, Digest, Book LI. If you have stipulated with me without any consideration, and I have given a surety, and am unwilling for him to make use of an exception, but prefer that he shall pay, in order that he may bring an action on mandate against me, the exception should be granted him, even against my consent; for he has more interest in keeping his money than in recovering it from the principal debtor, after having paid the stipulator. 1If one of two sureties who have become liable to you for twenty aurei should either pay you, or promise to pay you five aurei, to prevent you from suing him, the other will not be released; and if you proceed to collect fifteen aurei from him, you will not be barred by an exception. If you attempt to collect the remaining five aurei from the former surety, you can be barred by an exception on the ground of fraud.

16 The Same, Digest, Book LIII. A surety cannot be rendered liable to a person to whom the principal debtor is not liable. Wherefore, if a slave owned in common by Titius and Sempronius is specifically stipulated to be given to Titius, and his surety should be asked, “Do you promise to give this to Titius, or Sempronius?” Titius, indeed, can demand it from the surety, but Sempronius appears to have been introduced for the sole purpose that payment might be made to him before issue is joined in the case, while Titius is not aware of the fact, or is unwilling that this should be done. 1A person who has promised to pay at a certain place is, to some extent, subjected to a more severe condition than if he had been simply interrogated, for he cannot make payment in any other place than that in which he agreed to pay, if the stipulator is unwilling for him to do so. Wherefore, if I interrogate the principal debtor absolutely, and I accept the surety with the addition of payment in a certain place, the surety will not be liable. 2Even if the principal debtor, while at Rome, should promise to make payment at Capua, and the security at Ephesus, the surety will not be liable any more than if the principal debtor had promised to pay under a condition, and the surety had agreed to do so on a certain day, or had promised absolutely. 3A surety can be accepted whenever any civil or natural obligation, which is applicable to him, exists. 4Natural obligations are not estimated solely by the fact that some action can be brought on account of them, but also where the money, once paid, cannot be recovered. For although natural debtors cannot strictly be said to be indebted, still they may be considered such, and those who receive money from them to have obtained that to which they were entitled. 5Where a stipulation has been entered into which is to take effect at a specified time, and a surety has been accepted under a condition, the rights of the latter will remain in suspense, so that, if the condition is complied with before the time prescribed, he will not be liable; but if the time and the condition should coincide, or if the. condition should be fulfilled after the specified time has elapsed, he will be liable. 6When a surety is accepted under the following terms, “Will you be responsible if the principal debtor does not pay the forty aurei which have been lent to him?” it is probable that the intention was that if the principal debtor did not pay when called upon, the surety would be liable; but if the principal debtor, before being notified to pay, should die, the surety will be liable, because, even in this case, it is true that the principal debtor did not make payment.

17 The Same, Digest, Book LXXXIX. It is usual to grant relief to sureties by compelling the stipulator to sell any rights of action which he may have against the others to him who is ready to pay the entire debt.

18 The Same, Digest, Book XC. He who delegates his debtor is understood to pay as much money as is due to him; and therefore, if a surety delegates his debtor, even though he may not be solvent, an action on mandate can immediately be brought.

19 The Same, On Minicius, Book IV. A slave became surety for a certain person without the knowledge of his master, and paid the money due, in his name. The question arose whether or not the master could recover the amount from the person to whom it had been paid. The answer was that it was important to ascertain in whose name the slave had become surety, for if he had done so with reference to his peculium, then his master could not recover what he had paid out of his peculium, but anything which he had paid on account of his master could be recovered by him. If, however, he became surety for an amount greater than his peculium, any money belonging to his master, which he had paid, could also be recovered, and what he paid out of his peculium could be recovered by a personal action.

20 Javolenus, Epistles, Book XIII. But where the owner of the slave paid the money, he cannot recover it from him for whom he became surety, but he can do so from the person to whom he paid it, since a slave cannot become liable as surety. Hence it follows that he cannot recover it from him for whom he became surety, as he himself is liable for the debt, and will not be released by the payment of money due under an obligation for which the slave was not responsible.

21 Africanus, Questions, Book VII. An heir received a surety from the debtor of an estate, and then transferred the estate under the Trebellian Decree of the Senate. It is held that the obligation of the surety remains unimpaired. The same rule should be observed in this case which is applicable when an heir, against whom an emancipated son obtains prætorian possession of an estate, accepts a surety. Therefore, in both instances, the rights of action pass with the estate. 1There is nothing new in the fact that a surety is liable under two different obligations for the payment of the same sum of money; for if he was accepted from a certain day, and afterwards accepted absolutely, he will be bound by both obligations; and if a surety becomes the heir of his fellow-surety, the result will be the same. 2I lent money to your slave, you manumitted him, and then I accepted him as surety. If he gave security for the obligation which is payable to you within a year, the slave is said to be liable. If, however, it was done on account of the natural obligation, which is his own, it is better to hold that the agreement is void; for it is incomprehensible that a surety can become liable for himself. But if this slave, after manumission, should become the heir of his surety, it is held that the obligation of suretyship continues to exist, and that the natural obligation will still remain, so that if the civil obligation is extinguished, he cannot recover what has been paid. Nor can it properly be alleged in opposition to this, that when a principal debtor becomes the heir of his surety, the obligation of the surety is extinguished; for the reason that then the double civil obligation cannot exist with reference to the same person. And, on the other hand, if the surety should become the heir of the manumitted slave, the same obligation against him will continue to exist, although he is naturally liable, and no one can become surety for himself. 3If the stipulator should appoint his debtor his heir, he absolutely annuls the liability of the surety, whether the obligation of the debtor was a civil or a natural one; as no one can bind himself with reference to a third party while acting for the latter. When, however, the same stipulator appoints the surety his heir, there is no doubt that he, at once, cancels the sole obligation of the surety. The proof of this is, that if possession of the property of the debtor is delivered to the creditor, it must also be said that the surety will still remain liable. 4When you and Titius are jointly liable for the same sum of money, he who became surety for you can also answer as surety for Titius, although the same money is due to the same person; and this obligation will not be void, so far as the creditor is concerned. Indeed, in some cases, it will be productive of benefit, for instance, if he should become the heir of him for whom he previously became surety; for then, the first obligation having been extinguished through merger, the second one will continue to exist. 5When the surety becomes the heir of the stipulator, the question arises whether, as he himself has required payment, so to speak, from himself, he will be entitled to an action on mandate against the principal debtor. The answer was that, as the principal debtor remains liable, the creditor cannot be understood to have collected the money from himself, as surety. Therefore, he should bring an action under the stipulation, rather than one on mandate.

22 Florentinus, Institutes, Book VIII. A surety can be accepted even before the estate has been entered upon, if the principal debtor is dead, because the estate performs the function of a person in the same way as a municipality, a decurion, and a partnership.

23 Marcianus, Rules, Book IV. “If I stipulate for ten aurei for myself, or for Titius,” Titius cannot take a surety, because he was added only for the purpose of payment.

24 Marcellus, Opinions. Lucius Titius, desiring to become surety to Septicius for his brother, Seius, wrote to him as follows: “If my brother asks you, I request you to pay him the money, on my responsibility, and at my risk.” After having written this letter, Septicius paid the money to Seius; and Titius, having afterwards died, left certain heirs, and among them his brother, Seius, a third part of his estate. If, because the action to which Septicius was entitled against his brother Seius was extinguished by merger, on account of the third part of the estate to which Seius had become the heir to his brother Titius, I asked whether Septicius could bring an action for the entire amount against the other heirs. Marcellus answered that an action on mandate could not be brought against the co-heirs of Seius for the larger part of the estate, but only for their hereditary shares.

25 Ulpianus, On the Edict, Book XI. Marcellus says that if anyone should become surety for a ward who has incurred liability without the authority of his guardian, or for a spendthrift, or an insane person, the better opinion is, that he will not be entitled to relief, as an action on mandate will not lie in their favor.

26 Gaius, On the Provincial Edict, Book VIII. According to a Rescript of the Divine Hadrian, an obligation is not divided among sureties by operation of law. Therefore, if any one of them should die, without having an heir, before paying his share of the indebtedness, or should become poor, his portion of the liability will be added to that of the others.

27 Ulpianus, On the Edict, Book XXII. Where there are several sureties, and one of them has been accepted absolutely, and another from a certain time, or under some condition, the one who was accepted absolutely is entitled to relief, as long as the condition can be fulfilled; that is, in such a way that, in the meantime, he can only be sued for an individual share. If, however, he who was accepted under a condition should not be solvent at the time when it is fulfilled, Pomponius says that the case must be restored to the previous condition of absolute suretyship. 1Moreover, if one surety appears for another, or if there are several, the same rule which was established by the Divine Hadrian must be observed with reference to them. 2Again, if there is any doubt whether the principal surety is solvent or not, the means of the following surety must be added to his own. 3Pomponius says that relief should be granted to the heirs of a surety, just as it would be granted to the surety himself. 4If there is a surety who is at once the principal debtor, and a surety of the surety, the original surety cannot ask that the obligation be divided between himself and the one who has become responsible for him, for the original surety occupies the position of a debtor, and a debtor cannot request that the obligation be divided between him and his surety. Hence, if one of two sureties gives a surety, the obligation is not divided with reference to him for whom he became responsible; but the better opinion is, that it is divided so far as the surety himself is concerned.

28 Paulus, On the Edict, Book XXV. If one surety maintains that the others are solvent, the exception should be granted him that he will pay, “If the others should prove insolvent.”

29 The Same, On the Edict, Book XVIII. If I have stipulated under an impossible condition, I cannot be compelled to furnish a surety.

30 Gaius, On the Provincial Edict, Book V. Anyone can become surety for another, even if the promisor is not aware of the fact.

31 Ulpianus, On the Edict, Book XXIII. If a surety or anyone else wishes to pay the creditor for the debtor, before the time when the claim becomes due, he should wait for the day when payment must be made.

32 The Same, On the Edict, Book LXXVI. The exception relating to the principal debtor, and, indeed, where he is unwilling, as well as all the other advantages attaching to the case, are available by the surety and the other accessories who are liable.

33 The Same, On the Edict, Book LXXVII. If Titius should bequeath a slave his freedom, and appoint him his heir, and I had previously asked for him, and had received security on.his account in case he actually belonged to Titius, it must be said that the right of action against him should be transferred, and if this is not permitted to be done, the stipulation will become operative. If, however, the slave belonged to me, the plaintiff, and he should not enter upon the estate by my order, the sureties will be liable on the ground that no defence was made. But where the slave enters upon the estate by my order, the stipulation disappears. It is clear that if the slave was mine, and I deferred the acceptance of the estate until I obtained a favorable decision in court, and then I order him to accept it, and, in the meantime, I wish to institute proceedings because the suit was not defended, the stipulation will not become operative, because an arbiter would not decide in this manner.

34 Paulus, On the Edict, Book LXXII. Those who promise responsibility as sureties can assume a lighter, but not a heavier, burden. Therefore, if I stipulate for myself with the principal debtor, and I cause a surety to promise for me, or for Titius, Julianus thinks that the condition of the surety is better, because he can even pay Titius. If I have stipulated with the principal debtor for payment to myself, or to Titius, and with the surety only for payment to me, Julianus says that the condition of the surety is more onerous. But what if I should stipulate with the principal debtor for Stichus, or Pamphilus, and with the surety only for Stichus? Will the surety be in a better or in a worse condition if he does not have the right of selection? It is true that his condition will be better, because he will be released from liability by the death of Stichus.

35 The Same, On Plautius, Book II. When anyone becomes surety for a slave he is liable in full, even if there is nothing in the peculium of the slave. It is clear that if he becomes surety for the master, against whom he has a right of action De peculia, he will only be liable for the amount of the peculium at the time when judgment was rendered.

36 The Same, On Plautius, Book XIV. Where a creditor, who has a principal debtor and sureties, receives the money due from one of the sureties, and transfers to him his rights of action, it may be said that they no longer exist, as he has received what he was entitled to, and all the others are released by the payment; but this is not the case, for he did not receive it by way of payment, but he, as it were, sold the claim on the debtor, and he still had the right of action, because he was obliged to assign these rights to the person who paid him.

37 The Same, On Plautius, Book XVII. If anyone who has been released after the time has passed for the collection of a debt gives a surety, the surety will not be liable, as security given by mistake is void.

38 Marcellus, Digest, Book XX. If I stipulate “For Stichus or Pamphilus, whichever the promisor may select,” I cannot take a surety for Stichus or Pamphilus, whichever the surety may choose to be responsible for; because it would be in his power to give a different one from that which the principal debtor might select. 1I received a surety from Titius, who owed me ten aurei conditionally under the terms of a will, and I became his heir, and afterwards the condition upon which the legacy depended was fulfilled, I ask whether the surety is liable to me. The answer was, that if the legacy was bequeathed to you under a condition, and, after having received a surety from the testator you became his heir, you cannot consider the surety as liable, because there is no debtor for whom the surety can be liable, and there is nothing that is due to you.

39 Modestinus, Rules, Book II. An action should not be granted to permit this surety to proceed against his fellow-surety; and therefore, if, of two sureties for the same amount, one, after having been selected by the creditor, makes payment in full, and the rights of action are not assigned to him, the other surety cannot be sued either by the creditor or by his fellow-surety.

40 The Same, Rules, Book III. Where there are two joint-debtors, and a surety is given by one or both of them, he can properly be accepted for the whole amount of the debt.

41 The Same, Opinions, Book XIII. If sureties have been accepted for a sum which cannot be collected by a curator, and after the minor became of age, the amount could have been collected by the same curator, or by his heirs, and he who was a minor fails to assert his rights and becomes insolvent, a prætorian action can properly be brought against the sureties. 1The same authority gave it as his opinion, that if one of several mandators has judgment rendered against him in full and is notified to make payment, he can petition that all rights of action available against those who directed the same act to be performed be assigned to him.

42 Javolenus, Epistles, Book X. If I accept a surety under the following terms, “Do you agree to be responsible for the delivery of a thousand measures of wheat, to be paid for with your money, as security for the ten aurei which I have lent?” the surety will not be liable, because he cannot become responsible for something different from what has been lent, because the estimate of the value of the property which is considered as merchandise can be made in money; just as a sum of money can be estimated in merchandise.

43 Pomponius, Various Passages, Book VII. If, having stipulated with Titius, I accept you as surety, and afterwards I stipulate with another for the same money, and receive another surety, they will not be joint-sureties, for the reason that they are sureties in two different stipulations.

44 Javolenus, Epistles, Book XI. You stipulated that certain work should be done to your satisfaction before a certain date, and you received sureties who, if it should not be done within the prescribed time, agreed to be liable for the amount that you would have paid for having it done; and because the work was not performed, you gave it to a contractor, and as the latter did not furnish security, you did the work yourself. I ask whether the sureties will be liable. The answer was, that according to the terms of the stipulation mentioned by you, the sureties will not be liable, for you do not do what was agreed upon in the stipulation, that is to say, you did not contract for the work to be performed, although you did so afterwards; for the contract which was subsequently made was just the same as if it had not been entered into, since you immediately began to do the work yourself.

45 Scævola, Digest, Book VI. A surety for the vendor of two tracts of land, one of which was afterwards evicted, having been sued by the purchaser, had judgment rendered against him for a certain amount. The question arose whether he could bring suit against the heir of the vendor before the time when he could be forced to obey the judgment. The answer was that he could do so, but that there was good reason for the court to compel the surety either to be defended, or be released from liability.

46 Javolenus, On the Last Works of Labeo, Book X. Whenever the law is opposed to sales, the surety is also released; and there is all the more reason for this, because the principal debtor can be reached by a proceeding of this kind.

47 Papinianus, Questions, Book IX. If the penalty of deportation is imposed upon a debtor, Julianus says that a surety cannot be accepted for him, as the entire obligation against him is extinguished. 1If a son under paternal control accepts a surety in a matter having reference to his peculium as follows, “Do you become responsible for as much money as I may lend?” and, having become emancipated, he lends the money, the surety will not be liable to the father if the principal debtor is not, but on the ground of humanity he ought to be liable to the son.

48 The Same, Questions, Book X. If Titius and Seia should become sureties for Mævius, the woman having been discharged, we will grant an action for the entire amount against Titius, as he could have known, and ought not to have been ignorant of the fact that a woman cannot become a surety. 1The following question seems to be similar; namely, if one surety obtains complete restitution on account of his age, should the other assume the entire burden of the obligation? He, however, ought only to be charged with it, if the minor should subsequently become security, on account of the uncertainty of restitution because of his age. When, however, the minor was fraudulently induced by the creditor to become surety, relief should not be granted the creditor against the other surety; any more than if the minor, having been deceived by a novation, should desire a prætorian action to be granted him against his former debtor.

49 The Same, Questions, Book XXVII. If an heir, omitting a debtor who has been released by a will, brings suit against his surety, the surety can take advantage of an exception based on fraud, on account of the dishonorable act of the heir; and the same exception would also have benefited the principal debtor, if he had been sued. 1If one of two heirs of a surety, through mistake, pays the entire amount due, certain authorities hold that he is entitled to a personal action, and therefore that his fellow-surety remains liable. They believe that the obligation of the co-heir continues to exist, even if suit should not be brought; because the creditor who, thinking that he is liable, pays a part to him who has discharged the entire indebtedness, will not be entitled to a personal action to recover this part. Where, however, two sureties have been accepted, for example, for twenty aurei, and one of two heirs of the other surety pays the entire sum due to the creditor, he will, indeed, be entitled to a personal action to recover the ten aurei which he did not legally owe. But, could he recover the remaining five if the other surety was solvent, is a question which should be considered. For in the beginning, the heir or heirs of the surety should be heard, just as the surety himself should be; so that each of the sureties may be sued for his respective share. In both instances, the opinion that the payment of a sum of money which was not due should not be recovered is at once more harsh and more convenient, for a Rescript of the Divine Pius states this in the case of a surety who had paid the entire amount of the claim. 2Where a surety, who promised at Rome that he would pay a sum of money at Capua, and if the promisor should be at Capua, the question arose whether he could immediately be sued. I answered that the surety would not immediately be liable any more than if he had made the promise at Capua, when the principal debtor had not been able to reach that city, and that it makes no difference if no one “doubts that the surety would not yet be liable, for the reason that the promisor himself was not. On the other hand, if anyone should say that because the debtor is at Capua the surety is immediately liable, without taking into consideration the time to which he was tacitly entitled; the result would be that, in this case, the surety could be sued at a time when the debtor himself could not be, if he were at Rome. Therefore, it is our opinion that the obligation of suretyship includes the implied condition of necessary time to which both parties, that is to say, the promisor as well as his surety, are entitled; since if a different conclusion was arrived at, this would be understood to impose a more burdensome condition upon the surety, in violation of the rule of law.

50 The Same, Questions, Book XXXVII. A creditor, who became the heir to a portion of the estate of his debtor, accepted his co-heir as surety. So far as his own share of the estate is concerned, the obligation is extinguished by merger or (more correctly speaking) by the power of payment. But, with reference to the share of the co-heir, the obligation remains unimpaired, that is to say, not the obligation of his suretyship but the hereditary obligation, since the larger one has rendered the smaller of no force or effect.

51 The Same, Opinions, Book III. The action should be divided between those sureties who have become responsible for the entire amount, and their own equal shares. The case would be different, where the following words were used, “Do you promise to be responsible for the entire amount, or your respective share of the estate,” for then it is settled that each one will only be liable for his individual share. 1A surety who has paid a portion of the amount due either in his own name, or in that of a promisor, cannot refuse to have suit brought against him for the division of the remainder. For the amount which each of them owes individually should be divided between those who are solvent at the time of the judgment. It is, however, more equitable to come to the relief of the party who paid by means of an exception if the other was solvent at the time when issue was joined. 2Two joint-debtors gave separate sureties. The creditor is not obliged against his will to divide the actions between all the sureties, but only between those who became responsible for each of the debtors. It is clear that if he wishes to divide his action among all of them, he cannot be prevented from doing so, any more than if he should sue the two debtors for their respective shares of the debt. 3A creditor is not compelled to sell a pledge, if, having abandoned the pledge, he wishes to sue the person who simply became surety. 4The action having been divided among the sureties, some of them, after issue was joined, ceased to be solvent; but this fact has no reference to the responsibility of one who is solvent, nor will the plaintiff be protected in case of his minority, for he is held not to have been deceived when he had recourse to the Common Law. 5Where the property of a surety against whom judgment has been rendered is claimed by the Treasury, and the action is afterwards divided between the sureties, the Treasury will be considered to occupy the position of an heir.

52 The Same, Opinions, Book XI. The loss of a pledge by the ruin of a house affects the surety as well as the principal debtor. Nor does it make any difference if the surety was accepted as follows, “At least as much as may be realized over and above the value of the pledge, if sold,” for, by these words it is agreed that the entire debt shall be included. 1The action having been divided among the sureties, if the party against whom judgment was rendered ceases to be solvent, the fraud or negligence of the guardians who could have obtained the execution of the judgment will prejudice them. For if it is established that the action having been divided between sureties who were not solvent, relief by means of complete restitution will be applied for in the name of the ward. 2It is settled that sureties who have been given by farm tenants are liable for the money expended in the cultivation of the land, because this kind of an agreement draws to itself the obligation of a lease. Nor does it make any difference whether they render themselves liable immediately, or after some time has elapsed. 3Where there are several mandators of the same sum of money, and one of them is selected to be sued, the others are not released from liability by his discharge, but all of them will be released by the payment of the money.

53 The Same, Opinions, Book XV. The sureties of a person accused of a capital crime may properly be sued under a contract, and without being able to oppose an exception pleaded by the creditor, who has accused the principal debtor.

54 Paulus, Questions, Book III. If the creditor who received a surety for money lent is deceived in the contract of pledge, he can bring the contrary action on pledge; and, in this action, his entire interest will be included. This proceeding, however, does not affect the surety, for he has become responsible, not for the pledge, but for the money loaned.

55 The Same, Questions, Book XI. If I stipulate as follows with Seius, “Do you promise to pay any sum of money which I may lend to Titius, at any time?” and I receive sureties, and afterwards very frequently lend Titius money, Seius, as well as his sureties, will certainly be liable for all the sums loaned, and anything that can be obtained from his property should be credited equally upon all the debts.

56 The Same, Questions, Book XV. If anyone should swear that he will give his services for a person who is not a freedman, and becomes his surety, he will not be liable. 1Likewise, when a son stipulates with his father, or a slave with his master, and a surety is accepted, he will not be liable; for no one can be bound to the same person for the same thing. On the other hand, when a fattier stipulates for his son, or a master for his slave, the surety will be liable. 2If you lend money belonging to another, as if it was your own, without any stipulation, Pomponius says that the surety will not be liable. But what if the money having been expended, the right to bring a personal action for recovery is established? I think that the security will be liable, for he is considered to have been accepted in order to be responsible for everything which might arise out of the payment of the money, 3A surety can be taken in an action of theft, and also for anyone who has violated the Aquilian Law. The rule is different in popular actions.

57 Scævola, Questions, Book XVIII. A surety cannot be sued before the principal debtor becomes liable.

58 Paulus, Questions, Book XXII. If, having stipulated with a tenant, I received a surety, the stipulation provides for all payments of rent, and therefore the surety will be liable for all of said payments. 1When, by his act, the principal debtor perpetuates the obligation, that of the surety also continues to exist; for instance, if he was in default in delivering Stichus, and the latter died.

59 The Same, Opinions, Book IV. Paulus gave it as his opinion that a surety to whom pledges given by his fellow-sureties have been transferred, does not appear to be substituted in the place of the purchaser, but only in that of him who received the pledges, and therefore he must be accountable for the crops and the interest.

60 Scævola, Opinions, Book I. He also held that whenever the principal debtor was discharged by his creditor, in such a way that a natural obligation remained, the surety continued to be liable; but when the obligation passed by a species of novation, the surety should be released either by law, or by means of an exception.

61 Paulus, Opinions, Book XV. If, as has been stated, when money is lent it was agreed that it should be paid in Italy, it should be understood that the mandator has contracted in the same manner.

62 Scævola, Opinions, Book V. If the surety has notified the creditor to compel the debtor to pay the money, or sell the pledge, and he does not attempt to collect the claim, can the surety bar him by an exception on the ground of fraud? The answer was that he can not do so.

63 The Same, Opinions, Book VI. It was agreed between a creditor and her debtor, that if the hundred aurei which she had lent were not paid as soon as they were demanded, that the creditor should be permitted within a specified time to sell certain ornaments which had been given by way of pledge, and, if the proceeds of the sale amounted to less than what was due as principal and interest, the difference should be paid to the creditor; and a surety was furnished. The question arose whether the surety would be liable for the entire amount. The answer was, that, according to the facts stated, the surety would be liable only for whatever was not realized by the sale of the pledge.

64 Hermogenianus, Epitomes of Law, Book II. A surety who has tendered money to a minor of twenty-five years of age, and, apprehensive of complete restitution, has sealed and deposited it in a public place, can immediately bring an action on mandate.

65 The Same, Epitomes of Law, Book VI. Just as the principal debtor is not liable unless he makes a personal promise, so likewise sureties are not bound unless they themselves agree to pay something or perform some act; for they promise without effect when they contract for the principal debtor to pay, or do something, because to promise the act of another is void.

66 Paulus, On Neratius, Book I. If a slave belonging to another becomes surety for Titius, and pays the debt, Titius will be released from liability, if the master of the slave brings an action on mandate against him; for he who brings such an action is considered to have ratified the payment.

67 The Same, On Neratius, Book III. After having made use of an exception, which should have benefited you, an unjust decision was rendered against you. You can recover nothing by virtue of the mandate, for the reason that it is more equitable that the wrong done to you should not be redressed rather than be transferred to another; provided that, through your own negligence, you caused the unjust decision to be rendered against you.

68 The Same, Decrees, Book III. It has been decided that the sureties of magistrates, who have not promised to be liable for penalties or fines, should not be sued. 1Petronius Thallus and other persons became sureties for Aurelius Romulus, a farmer of the revenue, for the sum of a hundred aurei annually. The Treasury seized the property of Romulus as having a claim upon it, and sued the sureties for both principal and interest, which they refused to pay. The obligation of the sureties having been read, and they having bound themselves only for a hundred aurei every year, and not for the entire amount of the lease, it was decided that they were not liable for the interest, but that everything which had been collected from the property of Romulus should first be credited upon the interest, and the balance upon the principal; and if there was any deficit, recourse should be had to the sureties, just as in the case of the sale of pledges by a creditor. 2Sureties cannot be sued when the principal debtor has been released by a compromise.

69 Tryphoninus, Disputations, Book IX. A guardian appointed for the son of a man to whom he was liable as surety should collect payment from himself, and even though released by lapse of time, he, as well as his heir, will still be liable in an action on guardianship, because proceedings are instituted against him on account of the guardianship and not as surety. And if the guardian makes payment, not as surety, but in his fiduciary capacity, even though he may have been released by lapse of time, I held that he would be entitled to an action on mandate against the principal promisor; for the right to collect the debt attaches to both of these conditions; as, by payment, he has released the principal promisor from the obligation with reference to which he became surety for him, and not the title of the action, but the consideration of the debt should be taken into account. For although the guardian, who is also liable to his ward as surety, made payment with the authority of his ward, because the principal promisor was released, he who is both guardian and surety will also be freed from liability; which cannot be done by his own authority, even if he made payment, not with the intention of releasing himself, but especially for the purpose of releasing Titius, and he will be entitled to an action on mandate against him.

70 Gaius, On Oral Obligations, Book I. If I stipulate conditionally with a principal debtor, I can bind a surety for both this condition and another, provided I unite them; for, unless both of them should be fulfilled, he will not be liable, as the principal debtor is bound by one condition alone. If, however, I separate them, the condition of the surety will become more onerous, and on this account he will not be liable; because, whether a condition will affect both of the parties bound, or only one of them, it will be considered to hold him; while the principal debtor will not be liable unless the common condition is fulfilled. Therefore, either the surety will not be liable at all, or, which is the better opinion, he will be liable if the common condition is previously fulfilled. 1When sureties are interrogated under different conditions, it is a matter of importance to ascertain which one was first complied with. If it was the one imposed upon the principal debtor, the surety will also be liable when this condition is fulfilled, just as if from the very beginning the principal debtor had been absolutely bound, and the surety had been bound under a condition. On the other hand, however, if the condition of the surety should first be complied with, he will not be liable, just as if he had been absolutely bound from the beginning, and the principal debtor was only bound conditionally. 2When the principal debtor is liable for a tract of land, and the surety is accepted for the usufruct, the question arises whether the surety is liable to a less extent, or, indeed, whether he is liable at all, as having promised something else. It does seem to us to be doubtful whether the usufruct is a part of the property, or something which exists by itself. But as the usufruct is a right attaching to the land, it would be contrary to the Civil Law for the surety not to be bound by his promise. 3A surety can be accepted by a slave, just as his master, himself, can legally accept one for the amount due to him; and there is no reason why the surety should not be interrogated by the slave himself. 4If you should stipulate with an insane person, it is certain that you cannot take a surety; for not only is the stipulation itself void, but no business at all is understood to have been transacted. If, however, I should accept a surety for an insane person, who is liable by law, the surety will also be liable. 5When it is commonly asserted that a surety cannot be received for criminal offences, it should not be understood that anyone who has been robbed cannot take a surety for the payment of the penalty for theft, as there is a good reason that penalties incurred by crimes should be paid; but rather in the sense that a person cannot bind the surety for part of the proceeds of a theft, which he desires to be given to him by someone with whom he committed the offence; or where, by the advice of another, he was induced to perpetrate a theft, he cannot take a surety from him with reference to the penalty for the crime. In these instances, the surety does not become liable, because he is not furnished in a valid transaction, and partnership in an illegal act is of no force or effect.

71 Paulus, Questions, Book IV. Uranius Antoninus became mandator for Julius Pollio and Julius Rufus, for money which the latter had borrowed from Aurelius Palma, they being joint-debtors of the latter. The property of Julius escheated to the Treasury, and at the same time, the Treasury became the successor of the creditor. The mandator alleged that he was relieved of liability by the law of merger, because the Treasury had succeeded the creditor, as well as the debtor. And, indeed, if there was but one debtor, I do not doubt that the surety, as well as the mandator, would be released; for even if an action should be brought against the principal debtor, the mandator would not be released, still, when the creditor succeeded the debtor, the obligation was disposed of, as it were, by the right of payment, and the mandator was also released, for the-additional reason that no one can be mandator for the same person to the same person. But when there are two joint-promisors, and the creditor of one of them becomes his heir, there is good reason to doubt whether the other is not also released; just as if the money had been paid, or the person having been removed, whether the obligation is merged. I think that, by the acceptance of the estate, the principal debtor is released by the merger of the obligation, and that, on this account, his sureties are also released, because they cannot be liable to a person for himself, and, as they cannot begin to be in that position, so they cannot remain in it. Therefore, the other joint-debtor for the same sum of money is not released, and on this account, neither his surety nor his mandator can be relieved of liability. It is evident that, because he who had judgment rendered against him in the action on mandate can even select his creditor, he will be entitled to an exception on the ground of fraud, if suit is brought against him. The creditor can proceed against the other debtor, either for the whole amount of the claim, if no partnership existed, or for a portion of it if the debtors were partners. If, however, the creditor should become the heir of the surety, or the surety the heir of the creditor, I think that it is settled that the principal debtor will not be released by the merger of the obligation. 1If we suppose that one of certain joint-debtors agreed that suit should not be brought against him, and the mandator afterwards made payment, he can also bring an action on mandate against the person with whom he made the agreement, for the agreement of the creditor does not deprive him of his right of action against a third party. 2It is established that a mandator is liable even if he directs a creditor to lend money, who is about to lend it at interest.

72 Gaius, On Oral Obligations, Book III. If a surety should bind himself under the condition that a ship will arrive from Asia, and I accept him with the understanding that the obligation will only render him liable during his lifetime, and while the condition is pending he receives a release from me, and the surety dies before the condition is fulfilled, I can immediately bring suit against the principal debtor, because even if the condition should be fulfilled, it could never establish an obligation against one who is already dead, and could not confirm the release which I had granted.

73 Paulus, On the Edict, Book LXXVI. An agent brought a real action, and gave security that his principal would ratify what he had done. Having afterwards lost his case, his principal, on his return, brought suit for the same property, and the defendant, being in possession, refused to surrender it, and for this reason judgment was rendered against him for a considerable sum. The sureties are not liable for any more, as they are not to blame because the party in possession paid a penalty.