Corpus iurisprudentiae Romanae

1 Ulpianus, On Sabinus, Book XLIII. Whenever a debtor, who owes several debts, pays one of them, he has the right to state which obligation he prefers to discharge, and the one which he selects shall be paid, for we can establish a certain rule with reference to what we pay. When, however, we do not indicate which debt is paid, he who receives the money has the right to say on what claim he will credit it, provided he decides that it shall be credited on a debt which, if he himself owed it, he would have paid, and be discharged from liability, where he actually owed it, that is to say an obligation which is not in dispute; or one for which no surety has been given, or which has not yet matured; for it appears perfectly just for the creditor to treat the property of the debtor as he would treat his own. Therefore, the creditor is permitted to select the debt which he desires to be paid, provided that he makes his selection as he would do with reference to his own property; he must, however, decide immediately, that is, as soon as payment is made.

2 Florentinus, Institutes, Book VIII. When this is done, the creditor should be at liberty not to receive the money, or the debtor not to pay it, if either of them desires it to be applied to the settlement of some other claim.

3 Ulpianus, On Sabinus, Book XLIII. This, however, is not permitted to be done, after any time has elapsed. The result is, that he who receives it should always be considered to have credited the payment on the most onerous debt, for he would have done this with reference to an obligation of his own. 1Where nothing has been said by either party on this point with reference to debts which are payable on a certain date, or under a specified condition, that debt will be considered to have been discharged whose day of payment has arrived.

4 Pomponius, On Quintus Mucius, Book III. And this preferably applies to a debt which I owe in my own name, rather than to one for which I have given sureties; and rather to one which a penalty is attached than to one in which no penalty is involved; and rather to one for which security has been furnished than to one which has been contracted without it.

5 Ulpianus, On Sabinus, Book XLIII. With reference to debts which are due at the present time, it is decided that whenever any money is paid without stating on what debt it shall be credited, it should be considered to have been paid on the one which is most burdensome. If, however, one is not more burdensome than another, that is to say, if all the obligations are alike, it should be paid upon the oldest one. A debt which is given with security is considered more burdensome than one which has been contracted without it. 1If anyone has given two sureties, he can pay in such a way as to release one of them. 2The Emperor Antoninus, with his Divine Father, stated in a Rescript that when a creditor obtains his money by the sale of pledges, and interest is due, some of it by the Civil Law, and some by Natural Law, whatever is paid by way of interest shall be credited on both kinds of obligations; as, for instance, where some interest is due by virtue of a stipulation, and some is due naturally as the result of an agreement. If, however, the amount of the interest due under the Civil Law is not equal to that due under the other, what has been paid should be credited on both, but not pro rata, as the terms of the Rescript show. But where no interest is due under the Civil Law, and the debtor simply pays interest which was not stipulated for, the Emperor Antoninus, together with his Father, stated in the Rescript that it ought to be credited on the principal. At the bottom of the Rescript was added the following clause, namely, “What has been generally decided as to the interest being first paid seems to have reference to such interest as the debtor is compelled to pay,” and as interest paid under the terms of an agreement cannot be recovered, any more than if it had not been paid under that name, it will not be considered as paid at the desire of him who received it. 3The question is asked by Marcellus, in the Twentieth Book, if anyone agrees with a debtor that he will accept him for the principal and interest, whether the payment of the principal and interest shall be pro rata, or whether the interest should first be paid, and if anything remains, it should be credited upon the principal? I do not doubt that a provision of this kind with reference to the principal and the interest calls for the payment of the interest first, and that then, if there is any surplus, it ought to be credited on the principal.

6 Paulus, On Plautius, Book IV. For it is not the order of the written instrument which should be considered, but what appears to be the intention of the parties must be determined according to law.

7 Ulpianus, On Sabinus, Book XLIII. Where something is due, both on an obligation in which infamy is involved, and on one which is not of that character, payment is held to be made on that which involves disgrace. Hence, if anything is due on account of a judgment, or on a claim for which judgment has not been rendered, I think that payment should be applied to the judgment; and Pomponius adopts this opinion. Therefore, in a case in which liability increases by denial, or in one involving a penalty, it must be said that payment should be considered to be made on the latter, by the settlement of which the release of the penalty will be effected.

8 Paulus, On Sabinus, Book X. Pomponius says that it has very properly been stated that when the terms and the contracts are the same payment will be held to have been made pro rata on all the sums in question.

9 Ulpianus, On Sabinus, Book XXIV. I stipulate that payment shall be made to me or to Stichus, the slave of Sempronius. Payment cannot be made to Sempronius, although he is the master of the slave. 1A man who owes ten aurei, by the payment of half of this sum will be released from liability for half of his obligation, and only the remaining five aurei will be due. Likewise, where anyone owes Stichus and delivers a part of him, he is liable for the remainder. If, however, he owes a slave, and delivers a part of Stichus, he will not, for that reason, cease to owe a slave. Finally, an action can be brought against him to recover the slave. But when the debtor delivers the remaining part of Stichus, or the creditor is to blame for not accepting him, the former will be released.

10 Paulus, On Sabinus, Book IV. When I stipulate for myself or for Titius, Titius cannot bring suit, or make a novation, or give a release; he can only be paid.

11 Pomponius, On Sabinus, Book VIII. If I stipulate for payment to be made to me or to a ward, and the promisor pays the ward without the authority of his guardian, he will be released, so far as I am concerned.

12 Ulpianus, On Sabinus, Book XXX. Payment can legally be made to a genuine agent. We should consider a genuine agent to be one who has been specially authorized, or to whom the management of all the property of the principal has been entrusted. 1Sometimes, however, payment is legally made to a person who is not an agent; as, for instance, to one whose name is inserted in the stipulation, where someone stipulates for payment for himself or for Titius. 2If, however, anyone should direct me to pay Titius, and afterwards forbid him to receive the money, and I, not knowing that he had been forbidden to receive it, pay him, I will be released; but if I am aware of it, I will not be released. 3The case is different, if you suppose that someone has stipulated for himself, or for Titius. For even if he forbids me to pay Titius, I will, nevertheless, be released if I pay him; because the stipulation has a certain condition which the stipulator cannot alter. 4But even if I pay someone who is not a genuine agent, but the principal ratifies the payment, a release will take place; for ratification is equivalent to a mandate.

13 Julianus, Digest, Book LIV. The principal, however, should ratify the act as soon as he is informed of it, but with some degree of latitude and allowance, and it should include a certain period of time. As in the case of a legacy, where either its acceptance or rejection is concerned, a certain period of time, which is neither too small or too great, and which can better be understood than expressed in words, should be permitted.

14 Ulpianus, On Sabinus, Book XXX. If anyone should make payment under the condition that he can recover the money by a personal suit, if the principal does not ratify the act of the agent, and he does not ratify it, an action will lie in favor of him who made payment. 1There are some guardians who are called honorary; there are others who are designated for the purpose of giving information; others still, are appointed to transact business; or the father prescribes this, so that, for instance, one of them shall administer the guardianship, or the transaction of business is entrusted to a single guardian, with the consent of the others; or the Prætor issues a decree with reference to this effect. Therefore, I say that no matter to what kind of a guardian payment may be made, even to an honorary guardian (for responsibility attaches to him), it is properly done; unless the administration of the guardianship has been forbidden him by the Prætor, for if this is the case, payment cannot legally be made to him. I hold that the same rule applies where anyone knowingly pays guardians accused of being suspicious, for the administration of the guardianship is, in the meantime, considered to be forbidden them. 2If payment is made to a guardian who has been removed, the debtor pays one who has ceased to be a guardian, and for this reason he will not be released. 3But what if he has paid someone in whose place a curator should be appointed; for example, a man who has been perpetually, or temporarily banished? I say that if he pays him before the curator has been substituted for him, he should be released from liability. 4Even if he has paid a guardian who is about to be absent on public business, the payment will be legal. And, indeed, he can pay him during his absence, provided another has not been appointed in his place. 5Payment may properly be made to a single guardian, whether the guardians are legal or testamentary, or have been appointed as the result of a judicial inquiry. 6Let us see whether payment can legally be made to a guardian appointed for the purpose of giving information, because he was appointed to advise his fellow-guardian. But, as he is a guardian, and payment to him has not been prohibited, I think that if it is made, a release will take place. 7Payment may properly be made to the curator of an insane person, as well as to the curator of one who cannot take care of himself, either on account of his age, or for any other good reason. It is, however, settled that payment can legally be made to the curator of a ward. 8It is clear that a ward cannot pay without the authority of his guardian. If he should pay money, it does not become the property of him who received it, and can be recovered by an action. It is evident that if it has been expended the ward will be released from liability.

15 Paulus, On Sabinus, Book VI. Payment cannot be made to a ward without the authority of his guardian. He cannot delegate a debtor, because he cannot alienate anything. If, however, the debtor has paid him, and the money is safe, upon the demand of the ward for payment a second time, the debtor can bar him by an exception on the ground of fraud.

16 Pomponius, On Sabinus, Book XV. If a release is granted to a debtor conditionally, and the condition is afterwards complied with, he will be understood to have been released some time before. Aristo says that this takes place even should payment actually be made, for he holds that if anyone promises money under a condition, and pays it with the understanding that if the condition should be complied with payment shall be considered to have been made, and the condition is fulfilled, he will be released; and no objection can be raised because the money previously became the property of the creditor.

17 The Same, On Sabinus, Book XIX. Cassius says that if I have given money to anyone to enable him to pay my creditor, and he pays it in his own name, neither of the parties will be released. I will not be, because it was not paid in my name, and he will not be, because he paid what was belonging to another, but he will be liable under the mandate. If, however, the creditor should spend the money without being guilty of fraud, he who paid it in his own name will be released, for fear that, if it were decided otherwise, the creditor might profit by the transaction.

18 Ulpianus, On Sabinus, Book XLI. Where anyone pays a slave who has been appointed to collect the money, after his manumission, if this is in accordance with the contract of his master, it will be sufficient that he was not aware that the slave had been manumitted. If, however, the money was paid for some reason connected with the peculium, even though the master knew that the slave had been manumitted, still, if *he did not know that he had been deprived of his peculium, he will be released from liability. In both cases, however, if the manumitted slave did this for the purpose of taking the money from his master, he will be guilty of theft. For if I direct my debtor to pay a sum of money to Titius, and I then forbid Titius to accept it, and the debtor is not aware of this, and pays Titius, who pretends to be the agent, the debtor will be released, and Titius will be liable in an action of theft.

19 Pomponius, On Sabinus, Book XXI. My fugitive slave, pretending to be a freeman, lent you money which he had stolen from me. Labeo says that you are liable to me, and if you, believing him to be free, should pay him, you will be released, so far as I am concerned. If, however, you pay another by his order, or you ratify such a payment, you will not be released; because, in the first instance, the money becomes mine, and is understood to be paid, as it were, to myself. Hence, my slave, by collecting what he lent as part of his peculium, will release the debtor, but if he delegates him or makes a novation, this will not be the case.

20 The Same, On Sabinus, Book XXII. If I pay you by giving you an article of mine which was due to you, but which was pledged to another, I will not be released; because the property can be recovered from you by the person who received it in pledge.

21 Paulus, On Sabinus, Book X. If, having stipulated with Titius for ten aurei, you then stipulate with Seius to pay you whatever you cannot collect from Titius; even if you bring an action for ten aurei against Titius, Seius will still not be released. But what if Titius, having had a judgment rendered against him, should not be able to pay anything? Even if you first bring suit against Seius, Titius will not, in any respect, be discharged from liability, for it is uncertain whether Seius will owe anything at all. Finally, if Titius discharged the entire debt, Seius will not be considered to have been a debtor, for the reason that the condition upon which his indebtedness depended has failed to be fulfilled.

22 Ulpianus, On Sabinus, Book XLV. A son under paternal control cannot release a debtor of his father against the latter’s consent, as he can acquire an obligation for him, but he cannot diminish one.

23 Pomponius, On Sabinus, Book XXIV. We can be released from liability by payment, or by appearance in court in our behalf, even against our consent, and without being aware of it.

24 Ulpianus, On Sabinus, Book XLVII. When a surety has become responsible for ten aurei for two persons, he will be liable for twenty; and whether he pays twenty for them together, or ten for each one, he will release both debtors from liability. If, however, he pays five, let us see which of the two debtors he will release to that extent. The one mentioned in the release will be discharged from liability for that amount, or if this does not appear, the sum should be credited upon the oldest debt. The same rule will apply where fifteen aurei are paid, if it is apparent what the intention was with reference to ten of them, and the remaining five will be credited on the other obligation. But where the intention cannot be ascertained, ten aurei will be credited on the oldest note, and five on the other.

25 Pomponius, On Sabinus, Book XXXV. Where anyone who has been appointed heir to a portion of an estate pays the entire sum of ten aurei which the deceased had promised, he will be released from liability for the share to which he is entitled as heir; and he can recover the remainder by a personal action. If, however, before he brings this action, the residue of the estate should accrue to him, he will also be liable for the balance; and therefore, if he brings a personal action to recover property which was not due, I think that he can be barred by an exception on the ground of fraud.

26 The Same, On Sabinus, Book XXXV. If a creditor sells a tract of land which has been hypothecated to him, and collects all that was due, the debtor will be released. When the creditor gives a release of the price to the purchaser, or stipulates with him for it, the debtor will still be released. If, however, a slave, who has been pledged, is sold by the creditor, the debtor will not be released, as long as the slave can be recovered under the terms of a conditional sale; as is the case where any pledge is sold subject to rescission of contract.

27 Ulpianus, On the Edict, Book XXVIII. The right of action arising from a stipulation and from a will continues to exist even if the property which was due has been delivered; and although the title to it may be defective, an action can still be brought to recover it; as, for instance, I can bring suit for a tract of land, even though it has been conveyed to me, provided some right guaranteed by the bond has not been transferred.

28 Paulus, On the Edict, Book XXXVIII. Debtors are released by payment to anyone who transacts the business of the ward instead of his guardian; if the money becomes a part of the property of the ward.

29 Ulpianus, On the Edict, Book XXXVIII. When Stichus and Pamphilus are promised to two persons, Stichus cannot be delivered to one and Pamphilus to the other, but the half of each one of them is due to each individual creditor. The same rule applies where anyone promises to give two Stichuses or two Pamphiluses, or ten slaves to another slave who belongs to two masters. For the expression “ten slaves,” like “ten denarii,” is ambiguous, and the half of the ten can be understood in two different ways. But with reference to money, oil, wheat, and other things of this kind, which are included in a common species, the intention appears to have been that the obligation should be divided by a number, when this is more convenient for the promisor and the stipulator.

30 The Same, On the Edict, Book LI. If a debtor tenders money which he owes, and his creditor declines to accept it, the Prætor will refuse him an action.

31 The Same, Disputations, Book VII. A great difference exists between artisans with respect to their talents, character, knowledge, and education. Therefore, if anyone promises to build a ship, or a house, or to excavate a ditch, and it is specially agreed that he shall do this with his own worktnen, and the surety himself constructs the building, or makes the \excavation, without the consent of the stipulator, the debtor will not be released from liability. Hence, even if the surety should add the following clause to the stipulation, “Nothing shall be done by you to interfere with my right of way,” and the surety prevents me from passing, he does not render the stipulation operative; and if he permits the servitude to be enjoyed, he does not hinder the stipulation from taking effect.

32 Julianus, Digest, Book XIII. If a slave lends money out of his peculium, and his debtor, not knowing that his master was dead, pays the slave before the estate has been entered upon, he will be released. The same rule of law will apply even if the debtor pays the money after the slave has been manumitted, provided he is ignorant of the fact that his peculium was not bequeathed to him; nor does it make any difference whether the money was delivered to him during the lifetime or after the death of his master, since, even in the latter instance, the debtor will be released, just as if the debtor had been ordered by his creditor to pay a sum of money to Titius; for although the creditor may be dead, still he does not pay it any the less properly to Titius, provided he was not aware that he was dead.

33 The Same, Digest, Book LII. Where anyone stipulates that a tract of land shall be conveyed to him, or to Titius, even though the land should be given to Titius he will still be entitled to an action, if he is subsequently evicted; just as if he had stipulated for a slave, and the promisor had given Titius one who was to be free under a condition, and the slave should afterwards obtain his liberty. 1Where a man, who promised to give Stichus or Pamphilus, wounds Stichus, he is not released by delivering him, any more than if he had only promised Stichus, and delivered him after he had been wounded by him. Likewise, where anyone promises to give a slave, and tenders him wounded, he will not be freed from liability. And where the case is pending in court, and the defendant tenders a slave who has been wounded by him, he should have judgment rendered against him; and even if he tenders a slave who has been wounded by someone else, he will have judgment rendered against him, if he can give another slave.

34 The Same, Digest, Book LIV. Where anyone who has promised to give a slave, or pay ten aurei to you, or to Titius, delivers to Titius a part of the slave, and afterwards pays you ten aurei, he can bring an action to recover the part of the slave, not against Titius, but against you, just as if he had given to Titius with your consent, something that he did not owe him. The same rule will apply if he should pay ten aurei after the death of Titius; as he can recover the share of the slave rather from you than from the heir of Titius. 1If two joint-stipulators contract that a slave shall be delivered to them, and the promisor delivers to each of them different shares of different slaves, there is no doubt that he will not be released. If, however, he gives to both of them the shares of the same slave, a release takes place, because the common obligation has such an effect that what is paid to two persons is held to have been paid to one. On the other hand, when two sureties promise a slave shall be delivered, and they give shares of different slaves, they will not be released, but if they give shares of the same slave, they will be freed from liability. 2I stipulated for ten aurei to be paid to me, or a slave to be delivered to Titius. If the slave is delivered to Titius, the promisor will be released, so far as I am concerned; and before he is delivered I can demand the ten aurei. 3If I give Titius charge of all my business, and afterwards, without the knowledge of my debtors, I forbid him to transact it, the latter, by paying him, will be released; for he who gives anyone charge of his business is understood to direct his debtors to pay him as his agent. 4If my debtor, without any authority from me, should erroneously believe that he has my consent to pay money to another person, he will not be released; and therefore no one will be freed from liability by payment of an agent, who voluntarily offers himself to transact the affairs of another. 5If a fugitive slave who asserts that he is free sells any property, it has been decided that the purchasers are not released from liability to his master by paying the fugitive slave. 6If a son-in-law pays a dowry to his father-in-law, without the knowledge of the daughter of the latter, he will not be released, but he can bring a personal action for recovery against his father-in-law, unless the daughter ratines what he has done. The son-in-law, to a certain extent, resembles one who pays the agent of a person who is absent, because, in the case of a dowry, the daughter participates in the dowry, and is, as it were, a partner in the obligation. 7If I, desiring to make a donation to Titius, order my debtor to pay a sum of money to him, even though Titius may accept the money with the intention of rendering it mine, the debtor will, nevertheless, be released from liability. If, however, Titius afterwards gives me the same money, it will become mine. 8A testator appointed, as his heir, a son under paternal control from whom he had received a surety. If he should enter upon the estate by the order of his father, the question arises whether the latter can bring an action against the surety. I stated that whenever the principal debtor became the heir of him who received security, the sureties would be released, because they could not be indebted to the same person, on account of the same person. 9If a thief restores to someone claiming an estate property which he has collected from debtors of the estate, the latter will be released. 10If I stipulate that ten aurei shall be paid, or a slave be delivered, and I receive two sureties, Titius and Mævius, and Titius pays five aurei, he will not be released until Mævius also pays five. If, however, Mævius delivers a share of a slave, both of them will remain liable. 11Anyone who can protect himself by means of a perpetual exception can recover what he has paid, and therefore will not be released. Hence, when one of two promisors makes an agreement that nothing shall be demanded of him, even though he should make payment, the other will, nevertheless, remain liable.

35 Alfenus Varus, Epitomes of the Digest of Paulus, Book II. Whatever a slave has lent, or deposited, out of his peculium, although he may be sold or manumitted afterwards, can legally be paid to him; unless something should take place from which if may be inferred that payment has been made against the consent of the person to whom the slave belonged at the time. Where, however, anyone borrows, at interest, money from him which belonged to his master, while the slave was conducting the business of his master with his permission, the same rule will apply. For he who made the contract with the slave is considered to have received the money from him, and paid it to him, with the consent of his master.

36 Julianus, On Urseius Ferox, Book I. If my father should die, leaving his wife pregnant, and I, as heir, should demand payment of all the debts due to him; some authorities hold that I will still retain my rights of action, and if no child is afterwards born, that I can legally bring suit, because it is true that I am the only heir in existence. Julianus says that the better opinion is that the entire estate to which I was heir was claimed by me before it was certain that a child would not be born; or the fourth part because three children could be born; or the sixth, because five could be born. For Aristotle has stated that five children can be born, because the womb of a woman has that many receptacles, and that there was a woman at Rome who came from Alexandria in Egypt, who had five children at one birth, all of whom survived. I have obtained confirmation of this in Egypt.

37 The Same, On Urseius Ferox, Book II. Whenever one of several sureties has paid his share as having transacted the affairs of the principal debtor, this is considered the same as if the debtor himself had paid the share of the indebtedness for which one of the sureties was liable; but this does not diminish the amount of the principal, and only the surety, in whose name payment was made, is released.

38 Africanus, Questions, Book VII. When anyone stipulates that payment shall be made to him, or to Titius, the better opinion is that it will only be properly made to Titius, when he remains in the same condition in which he was when the stipulation was entered into. If, however, he has been adopted, or sent into exile, or forbidden the use of fire and water, or has become a slave, it cannot be said that legal payment has been made, for this agreement, namely, “If he remains in the same condition,” is understood to have been tacitly included in the stipulation. 1If I order my debtor to pay Titius, and, afterwards I forbid Titius to receive the money, and my debtor not being aware of the fact, pays him, it was held that the debtor was released, if Titius did not receive the money with the intention of profiting by it; otherwise, it would remain the property of the debtor, just as if he was about to steal it, and hence he cannot be released by operation of law; still, it is but just that relief should be granted him by means of an exception, if he is ready to assign to me the right of personal action, on account of theft, to which he is entitled against Titius; as is done where a husband, being desirous of making a donation to his wife, directs his debtor to pay her. For, in this case also, because the money does not become the property of the woman, the debtor will not be released, but he can be protected against the husband by an exception, if he assigns to him the right of action which he has against his wife. In the case stated an action for theft will be in my favor, after a divorce has been granted, when it is to my interest that the money should not be appropriated. 2The action De peculia was brought against a master, and judgment having been rendered against him, he paid it. The opinion was given that the sureties received for the slave were released, for the same money can be used to satisfy several claims, because when security is given for the payment of a judgment, and judgment is rendered against the defendant, and he pays it himself, the sureties are released, not only on account of the satisfaction of the judgment but also under the stipulation. This case is quite similar to the one where the possessor of an estate, believing himself to be the heir, makes payment, and the heir is not released; for this happens because the possessor, by paying money which was not due in his own name, can recover it. 3Where he who has promised a slave delivers one who is to be free under a condition, I think that the better opinion is that we should not wait for the fulfillment of the condition, but that the creditor can bring a personal action for recovery. If, however, in the meantime, the condition should fail to be fulfilled, the promisor will be released, just as if anyone had made payment through mistake, while a condition was pending, and it should be fulfilled before he brought the personal action. But it certainly can not be said, that if Stichus should die, and the condition should fail to be fulfilled, the debtor would be released, although if it was not fulfilled during his lifetime he would be freed from liability, since, in this case, you have, at no time, absolutely made the slave mine. Otherwise, it might also be held that if you deliver me a slave in whom some other person enjoys the usufruct, and the slave should die during the continuance of the usufruct, you will be considered released by this delivery; which opinion can, by no means, be adopted, any more than if you had delivered a slave owned in common, and he should die. 4Where anyone becomes surety for a person who has returned after having been absent on public business, and he incurs no risk of being sued on this account, will the surety also be released after the expiration of a year? This opinion was not adopted by Julianus, even where no power to proceed against the surety existed. In this instance, however, in accordance with the terms of the Edict, restitution should be granted by means of an action against the surety himself, just as is done against a surety who kills the slave that had been promised. 5Where anyone who has become surety for you to Titius gives a pledge for the further security of his obligation, and you afterwards appoint him your heir, although you will not be liable by virtue of the suretyship, still, the pledge will still remain encumbered. If the same person gives another surety, and appoints you his heir, he says that it is better to hold that the obligation of the debtor for whom security was taken having been extinguished, he also who had become his surety will be released.

39 The Same, Questions, Book VIII. If, being desirous of paying the money, I deposit it by your direction with an assayer to be tested, Mela, in the Tenth Book, says that you do this at your own risk. This is true, in case it was your fault that the coins were not immediately tested, for then it will be the same as if I was ready to pay, and you, for some reason or other, refused to accept the money. In this instance, the money is not always at your risk, for what if I should tender it at an inopportune time or place? I think that the result would be that, even if the purchaser and vendor, having little confidence in one another, should deposit the money and the merchandise, the money will be at the risk of the purchaser, if he himself selected the person with whom it was deposited, and the same rule will apply to the merchandise, because the sale was perfected.

40 Marcianus, Institutes, Book III. If anyone should pay my creditor for me, even though I am not aware of it, I will acquire a right to bring suit to recover my pledge. Likewise, if anyone pays legacies, the legatees must relinquish possession of the estate; otherwise, the heir will be entitled to an interdict to compel them to surrender it.

41 Papinianus, On Adultery, Book I. Where a creditor is accused of a crime, there is nothing to prevent the payment of money by his debtors; otherwise, many innocent persons would be deprived of the necessary means of defence.

42 Paulus, On Adultery, Book III. Nor is it held to be forbidden for payment to be made by the accused party to his creditor.

43 Ulpianus, Rules, Book II. In all cases where persons are released from liability, the accessories are also released, for instance sureties, and property hypothecated or pledged; except where merger having taken place between the creditor and the sureties, the principal debtor is not released.

44 Marcianus, Rules, Book II. In the payment of money, it sometimes happens that two obligations are discharged by one payment, at the same time; as, for instance, where anyone sells to his creditor the property which has been pledged to secure his debt; for it happens that, by the sale, the obligation of the debt is also extinguished. Again, where a bequest is made by a creditor to a ward who has borrowed money without the authority of his guardian, under the condition that he will pay this money, the ward is held to have paid it for two reasons: first, to discharge his debt, as it will be credited on the Falcidian portion of the heir; and second, in order to comply with the condition to enable him to obtain the legacy. Likewise, if the usufruct of a sum of money has been bequeathed, it happens, that by one payment the heir will be released from the obligation imposed by the will, and will render the legatee liable to himself. The same thing occurs where anyone has been ordered by the court to sell or lease property to another; for, either by selling or leasing, the heir will be freed from liability under the will, and will render the legatee liable to himself.

45 Ulpianus, Opinions, Book I. It was held by Callippus that although a husband had promised his wife, who was the stipulator, that in case the marriage should be dissolved, the land which was hypothecated for the dowry should be given in payment, still it would be sufficient to tender the amount of the dowry. 1The same authority stated to Fronto, that if a guardian continued to administer the affairs of the guardianship, although he had been accused of a capital crime, payment could be made to him of what was actually due to his ward.

46 Marcianus, Rules, Book III. If anyone should give to his creditor with his consent, by way of payment, one kind of property instead of another, and it should be evicted, the former obligation will continue to exist. If the property should only partly be evicted, the obligation for the entire amount will still remain unimpaired, as the creditor would not have accepted it if there had been any doubt as to the title. 1But even if, for example, he had given two tracts of land instead of paying his debt, and one of them was evicted, the obligation would remain unimpaired. Therefore, when one article is given in payment for another, a release from liability is effected, and it absolutely belongs to the person who receives it. 2But where anyone, through fraud, gives in payment a tract of land which is estimated at more than it is worth, he will not be released unless he makes up the deficiency.

47 The Same, Rules, Book IV. Where payment is made to a ward without the authority of his guardian, and an inquiry is instituted to ascertain the time when he profited by it, the date on which he brought his action is taken into account; and this is done in order to determine whether he can be barred by an exception on the ground of fraud. 1It is evident (as Scævola says) that if the property was lost before issue had been joined, the ward is sometimes considered as having profited pecuniarily; that is to say, if he bought something which was necessary, and which should have been purchased with his own money. For he is considered to have profited by the transaction by the mere fact that he did not become any poorer. Hence the opinion was advanced that the Macedonian decree of the Senate does not apply to the case of a son under paternal control, if he borrowed money for necessaries and lost it.

48 Marcellus, Opinions. Titia, in order to secure her dowry, obtained possession of the property of her husband, and acted in every respect as if she owned it, for she collected the income, and sold the chattels. I ask whether what she collected out of the property of her husband should be credited on her dowry? Marcellus answers that, in the case stated, it did not seem unjust for such a credit to be made, for what the woman collected under such circumstances should rather be considered a payment. But if the arbiter appointed to decide as to the recovery of the dowry should also require an account of the interest to be rendered, this must be computed in such a way that whatever came into the hands of the woman will not be deducted from the entire amount, but will first be credited on the interest to which she was entitled. This is not inequitable.

49 Marcianus, On the Hypothecary Formula. We understand a sum of money to be paid naturally, where it is counted out to the creditor. If, however, it is paid to another by his order, or to his creditor, or to someone who is about to become his debtor, or even to a person to whom he intends to donate it, he should be released from liability. The same rule will apply if the creditor ratifies a payment which has been made. Also, where the money is paid to a guardian, a curator, an agent, or any successor whomsoever, or to a slave who is a steward, this will be valid. If a release, for the purpose of extinguishing an hypothecation, is given by means of a stipulation or without it, the term “payment” cannot be adopted, but that of “satisfaction” may be.

50 Paulus, On Sabinus, Book X. If, having promised you gold, I should, without your knowledge, give you copper instead, I will not be released, but I cannot recover it as having been paid without being due, because I gave it knowingly; nevertheless, if you bring suit for gold, I can bar you by means of an exception, if you do not return the copper which you received.

51 The Same, On the Edict, Book IX. Payment can properly be made to a steward if he has been dismissed without the knowledge of the debtor; for he is paid with the consent of his master, and if he who pays him is not aware that his master has withdrawn it, he will be released.

52 Ulpianus, On the Edict, Book XIV. Satisfaction is equivalent to payment.

53 Gaius, on the Provincial Edict, Book V. Anyone can make payment in behalf of a debtor who is ignorant of the fact, even against his consent; for it is established by the Civil Law that the condition of a person can be improved who is not aware of it, and who is also unwilling.

54 Paulus, On the Edict, Book LVI. The term “payment” is applicable to every release from liability made in any way whatsoever, and relates to the substance of the obligation, rather than to the delivery of the money.

55 Ulpianus, On the Edict, Book LXI. Where anyone pays with the intention of again receiving the money, he will not be released, just as money which is paid in order to be returned is not alienated.

56 Paulus, On the Edict, Book LXII. Anyone who directs payment to be made is himself considered to pay.

57 Ulpianus, On the Edict, Book LXXVII. When anyone stipulates for ten aurei to be paid in honey, honey can be delivered to him before proceedings are instituted under the stipulation. If, however, an action has once been begun, and the ten aurei demanded, the debt can no longer be paid in honey. 1Again, if I should stipulate for payment to be made to me or to Titius, and I afterwards bring suit, payment can no longer be made to Titius, although it could have been done before issue had been joined.

58 The Same, On the Edict, Book LXXV. If anyone should, in good faith, pay a person who had voluntarily taken charge of the business of another, when will he be released? Julianus says that he will be released when the principal ratines the transaction. He also asks whether a personal action can be brought against him for recovery, on this ground, before the principal ratifies the transaction. In answer to this, he says that it makes a difference with what intention the payment was made, whether this was done in order that the debtor might be discharged immediately, or only after the principal had ratified. the act. In the first instance, the agent can be sued at once, and then, when the principal has ratified what has taken place, the right of action will be extinguished; but, in the second instance, no cause of action will arise unless the principal refuses to ratify what the agent has done. 1If a creditor, to whose agent payment has been made without his knowledge, gives himself to be arrogated, the acceptance of the money will be valid if the father ratifies it, but if he does not do so, the debtor can recover what he has paid. 2Where there are two joint-stipulators, and payment is made to the agent of one of them, who is absent, and before he ratifies it, payment is made to the other, the last payment as well as the first remains in abeyance; since it is uncertain whether the last stipulator has collected something which was due, or which was not due.

59 Paulus, On Plautius, Book II. If I stipulate as follows, “Do you promise to pay me or Titius?” and the debtor agrees to pay me, although an action to collect money on an informal agreement will lie in my favor, the promisor can still pay him who has been added. And if I stipulate for myself or for Titius with a son under paternal control, the father can pay Titius out of the peculium, that is, if he wishes to pay in his own name, and not in that of his son; for when payment is made to the person who was added, it is considered to be made to me. Therefore, if payment of something which is not due is made to the person who has been added, Julianus says that suit can be brought against the stipulator to recover it, so that it makes no difference whether I direct you to pay Titius, or whether the stipulation was framed in this way in the beginning.

60 The Same, On Plautius, Book IV. He who has given a slave that did not belong to him in payment, will be released, if the slave is acquired by usucaption.

61 The Same, On Plautius, Book V. Whenever what I owe you becomes yours in perpetuity, and the title is perfect, and what has been paid cannot be recovered, the release will be complete.

62 The Same, On Plautius, Book VIII. I directed my steward to be free by my will, and I bequeathed him his peculium. After my death, he collected money from my debtors. The question arises whether my heir can withhold what he collected from his peculium. If he collected the money after the estate had been entered upon, there can be no duobt that he cannot deduct it from his peculium on this account; because, having been made free, he will become liable himself if the debtors of the estate are released by payment. But if the steward received the money before the estate was entered upon, and the debtors were released by the payment of the same, the amount unquestionably can be deducted from the peculium, because the steward begins to be indebted to the heir by having transacted his business, or complied with his mandate. If, however, the debtors are not released, and, in transacting my business, you were paid by them, and I did not afterwards ratify your act, and then, if I wish to bring an action on the ground of voluntary agency, the question arises whether I can do so properly if I give security to indemnify you against loss. I do not think that this is the case, for suit on the ground of voluntary agency cannot be brought, for the reason that I have not ratified the transaction, and hence the debtors remain liable, to me.

63 The Same, On Plautius, Book IX. Where a debtor is the usufructuary of a slave, the slave can be liberated by means of a release, for he will be held to have acquired from the property of the usufructuary. We say the same thing in the case of an agreement.

64 The Same, On Plautius, Book XIV. When, by my order, you pay what you owe me to my creditor, you are released so far as I am concerned, and I am freed from liability to my creditor.

65 Pomponius, On Plautius, Book I. If the daughter of an insane person should be divorced from her husband, it has been decided that the dowry can be paid to the agnate curator, with the consent of the daughter, or to the daughter with the consent of the agnate.

66 The Same, On Plautius, Book VI. If the debtor of a ward, by his direction and without the authority of his guardian, pays money to the creditor of the former, he releases the ward from liability to the creditor, but he himself remains bound. He, however, can protect himself by means of an exception. But if he was not indebted to the ward, he cannot bring a personal action for recovery against the latter, who is not responsible as he acted without the authority of the guardian; nor can he bring one against the creditor, with whom he contracted by the order of another. The ward, however, having been released from liability for his indebtedness, can be sued in a prætorian action for the amount by which he has been pecuniarily benefited.

67 Marcellus, Digest, Book XIII. If anyone should promise two slaves, and deliver Stichus, and he afterwards becomes the owner of the said Stichus, he will be released from liability by delivering him. With reference to the payment of money, there is less doubt, and, indeed, almost none at all. For in Alfenus, Servius says that a creditor who is willing to accept less than is due from his debtor, and release him, can do so by frequently receiving a sum of money from him, returning it, and afterwards receiving it again; for instance, if a creditor, to whom a debtor owes a hundred aurei, is willing to release him on the payment of ten, and after haying received the ten, gives the same coins back to him, and afterwards receives them and returns them up to the full amount, and finally retains them, although this has not been accepted by certain authorities as being sufficient payment, because he who takes the money in order to refund it, seems rather to have paid it himself than to have received it.

68 The Same, Digest, Book XVI. A slave, having been ordered to pay ten aurei to a ward and become free, if the ward is an heir, or the condition is merely personal, can the slave, by making payment to the ward in the absence of his guardian, obtain his freedom? Some difficulty will arise in comparing this condition with that which consists of an act; for instance, if he should give his services to a ward, which can be done without the intervention of his guardian. And, it is asked, what if he is ordered to make payment to an insane person, who has a curator; will he, by paying the curator, be released? Suppose that a tract of land was left to someone on condition that payment should be made to a minor, or a person who is insane. It must be remembered that, in all these cases, payment can legally be made to the guardian or curator, but is not valid if made to the insane person or ward, for fear that what is paid may be lost by their weakness. For it was not the intention of the testator that the condition should be considered to have been complied with no matter in what way payment was made.

69 Celsus, Digest, Book XXIV. If you surrender a slave by way of reparation for damage committed, and someone else has the usufruct in said slave, or he has been pledged for a debt to Titius, he in whose favor a judgment has been rendered against you can cause the judgment to be executed, and it will not be necessary to wait until the creditor evicts him. If, however, the usufruct should be extinguished, or the obligation of the pledge be discharged, I think that a release will take place.

70 The Same, Digest, Book XXVI. Anything which has been promised on a certain date can be given or paid immediately, for all the intermediate time is understood to be left free to the promisor for the purpose of making payment.

71 The Same, Digest, Book XXVII. When, having stipulated for ten aurei to be paid to myself or to Titius, I accept five; the promisor can properly pay the remaining five to Titius. 1If a surety pays the agent of the creditor, and the latter ratifies the payment after the time when the surety could have been released has elapsed, still, for the reason that the surety paid while he still was liable on account of his suretyship, he cannot recover what he paid, and he is just as much entitled to the action on mandate against the principal debtor as if he had paid the creditor when present. 2Again, if the creditor, not being aware that payment has been made to his agent, gives a release to the slave or the son of the debtor, and he afterwards learns of the payment, and ratines it, it is confirmed; and the release which he gave becomes of no force or effect. And on the other hand, if he does not ratify the payment, the release remains valid. 3If, however, not being aware of the payment, he institutes legal proceedings, and ratifies the payment while the suit is pending, the party against whom the action is brought will be discharged; but if he does not ratify it, judgment shall be rendered against the defendant.

72 Marcellus, Digest, Book XX. Where anyone who owes ten aurei tenders them to his creditor, and the latter, without any good reason, refuses to accept them, and afterwards the debtor loses them, without any fault of his own, he can protect himself by an exception on the ground of fraud, even though, after having been notified, he does not make payment; for, indeed, it is not just for him to be liable for the money which was lost, because he would not be liable if the creditor had been willing to take it. Wherefore, what the creditor was in default in receiving should be considered as having been paid. And certainly, if a slave formed part of a dowry, and the husband tendered him, and the slave died, or if he rendered money, and should lose it, after the woman has refused to accept the slave or the money, he ceases to be liable by operation of law. 1If you owe me Stichus, and are in default in delivering him, having promised him under a condition, and while the condition is pending Stichus dies, as the first obligation cannot be renewed, let us see whether suit can be brought to recover the slave, if there was no stipulation. It may, however, be said in reply that when the debtor promised the stipulating creditor under a condition, he does not appear to have been in default in the delivery of the slave. For it is true that he who was notified and refused to deliver him will be released from liability, if he tenders him subsequently. 2But what if the creditor should stipulate with another, without the knowledge of the debtor? In this instance, also, the debtor should be considered as having been released from liability; just as if anyone should tender a slave in the name of the debtor, and the stipulator should refuse to accept him. 3The same opinion was given in the case where a man, after a slave had been stolen from him, stipulated under a condition for all that the thief was able to pay, or do; for the thief will be released from liability to an action for recovery, if the owner of the slave should refuse to accept him when he is tendered. If, however, the stipulation was entered into while the slave was in a province, and suppose that, before the thief or the promisor was able to obtain possession of him, the slave should die, there would be no ground for the application of the rule which we mentioned above; for, on account of the absence of the slave, he could not be considered to have been tendered. 4I stipulated for Stichus and Pamphilus, when Pamphilus belonged to me. If he should cease to be mine, the promisor will not be released by giving Pamphilus; for no contract is considered to have been made with reference to the slave, Pamphilus, either by way of obligation or payment. But where anyone stipulates for the delivery of a slave, the promisor, by giving one of the slaves who belonged to him at the time the stipulation was made, will be released. And, indeed, the stipulator, by the terms of the agreement, seems to have contracted for a slave to be delivered who did not belong to the promisor at the time. Let us suppose the stipulation was as follows: “Do you promise to give one of the slaves that Sempronius left?” If Sempronius left three, one of them would belong to the stipulator; and let us see if the other two slaves that belonged to someone else should die, whether the obligation would continue to exist. The better opinion is, that the stipulation will be extinguished, unless the remaining slave belonging to the stipulator should cease to be his before the death of the other two. 5Where someone who owes a slave gives Stichus, who is entitled to his freedom under the terms of a trust, he is not considered to have been released. For his delivery of the slave amounts to less than if he had given him while still liable to be surrendered by way of reparation for damage committed. Hence, will the same rule apply if he delivers a grave digger, or some other degraded slave? In this instance, we cannot deny that he has given a slave, but it differs from the former ones, as he has a slave who cannot be taken away from him. 6The promisor of a slave must deliver such a one as the stipulator can manumit, if he desires to do so.

73 The Same, Digest, Book XXXI. I gave a surety for twenty sesterces, and a pledge for ten, in order to secure thirty sesterces which I had borrowed. The creditor collected ten by the sale of the pledge. Does this sum of ten sesterces decrease the entire debt (as certain authorities hold), if, when paying the ten, the debtor said nothing about it; or (which is my opinion) is the surety entitled to be released from liability for the sesterces on all that is due, for the reason that, by mentioning this, the debtor could have brought it about; and as he did not say anything, he would be held rather to have intended to make payment of that which was secured? I am rather inclined to think that the owner of the obligation should be permitted to credit what was paid upon that part of the claim for which the debtor was severally liable.

74 Modestinus, Rules, Book III. Whatever is collected from the debtor as a penalty should enure to the benefit of the creditor.

75 The Same, Rules, Book VIII. Just as a release annuls all preceding actions up to that time, so merger produces the same effect; for if a debtor becomes the heir of his creditor, the merger of the estate annuls the action to recover the debt.

76 The Same, Opinions, Book VI. Modestinus holds that payment having been made of everything that was due on a tutelary account without any agreement, if, after a certain interval, the rights of action are assigned, the assignment is void, because no such right remains. If, however, this was done before payment, or if it was agreed between the parties that the rights of action should be assigned, and payment is made, and the assignment afterwards takes place, the rights of action will remain unimpaired; as, even in the last instance, the price of those which were assigned seems rather to have been paid than that the right which existed at the time has been extinguished.

77 The Same, Pandects, Book VII. A contract for his services cannot be made by a master with his freedman for any time previous to obtaining his liberty.

78 Javolenus, On Cassius, Book XI. When money belonging to another is paid without the knowledge or consent of the owner, it still continues to be his property. If it is mixed with other money, so that it cannot be separated, it is stated in the Books of Gaius that it will belong to the person who receives it; so that an action of theft will lie in favor of the owner against him who paid the money.

79 The Same, Epistles, Book X. The money which you owe me, or any other property which I direct you to produce in my presence, when this is done, causes you immediately to be released, and the property to belong to me. For as the possession of the said property is not actually held by anyone, it is acquired by me, and is, as it were, considered to be delivered to me manu longa.

80 Pomponius, On Quintus Mucius, Book IV. An obligation can be discharged in the same way in which it was contracted. Hence, when we have made an agreement with reference to any property, it should be discharged by the transfer of the thing itself, as, for instance, when we lend some article to be consumed, and its value in money is to be given in return; and where we have contracted for anything orally, the obligation should be discharged by the delivery of the article, or by words. By words, when the promisor is given a release; by the delivery of the article, when what was promised is given. Likewise, where a purchase, sale, or lease, is effected, if this is done by mere consent, the contract can be dissolved by a contrary agreement.

81 The Same, On Quintus Mucius, Book VI. If I stipulate for payment to myself or to Titius, and Titius should die, you cannot pay his heir. 1If Titius should deposit a dish in my hands, and die leaving several heirs, and some of them notify me to deliver it, the best thing will be for the Prætor, after having been applied to, to order me to deliver the dish to some of the heirs, under which circumstances I will not be liable for the deposit to the remaining ones; but if I deliver it, in good faith and without having been ordered to do so by the Prætor, I will be released; or, what is more true, I will not be liable to the obligation resulting from the deposit. The best course to pursue, however, is to do this by the order of the magistrate.

82 Proculus, Epistles, Book V. If Cornelius should give a tract of land which belongs to him, in the name of Seia, to her husband by way of dowry, and make no provision with reference to its return; and he does this in such a way that an agreement is entered into between Seia and her husband that, if a divorce should take place, the land shall be returned to Cornelius; I do not think that, if a divorce does take place, the husband can safely return the land to Cornelius, if Seia should forbid him to do so; just as, where no informal agreement was made, the woman, after the divorce, should direct the land to be returned to Cornelius, and then, before this was done, forbid it, it could not safely be returned to him. If, however, before Seia forbade this to be done, her husband should return the land to Cornelius, and he had no reason to think that, if he did so, she would not consent, I do not think that it would be better or more equitable to deliver the land to Seia.

83 Pomponius, Various Passages, Book XIV. If I lend money to your slave, and then purchase him, and, after having been manumitted, he pays me, he cannot recover the money.

84 Proculus, Epistles, Book VII. You brought an action De peculia against a master for a debt of his slave, and it was held that the sureties were not released. If the same slave who had been entrusted with the management of his peculium should pay the money, you have read correctly that the securities will be released.

85 Callistratus, The Monitory Edict, Book I. Less than the entire amount is paid either by quantity or by time.

86 Paulus, On the Edict, Book VIII. It is our practice that payment cannot properly be made to the attorney in a suit; for it is absurd that it should be made before the case has been decided to one to whom the right to enforce judgment is not granted. If, however, it is given to him for the purpose of payment, he will be released after payment has been made.

87 Celsus, Digest, Book XX. Where a debt is paid by my agent, I cannot recover it, as where anyone appoints an agent for the transaction of all his business he is considered to have directed him to pay his creditors the money to which they are entitled, and it is not necessary to wait until the principal ratifies the transaction.

88 Scævola, Digest, Book V. A father died intestate and left his daughter his heir. Her mother transacted her business, and caused her property to be sold by bankers, and all this was entered upon their accounts. The bankers paid over all the proceeds of the sale, and, after this, for about nine years, her mother attended to whatever was to be done in the name of her minor daughter, and finally, gave her in marriage, and delivered her property to her. The question arose whether the girl was entitled to any action against the bankers, when not she, but her mother, stipulated for the price of the property given to them to be sold. The answer was that if any doubt existed whether the bankers were released by law, after having paid over the money, it should be held that they were freed from liability. Claudius: For the following question with reference to authority to act remains, that is, whether the price of the property which the bankers knew to belong to the minor appeared to have been paid in good faith to the mother, who did not have the right of administration. Hence, if they were aware of this, they would not be released from liability, that is to say, provided the mother should prove to be insolvent.

89 The Same, Digest, Book XXIX. A creditor provided as follows with reference to several of his claims and notes: “I, Titius Mævius, acknowledge to have received and to have in my hands (for which I have given a release to Gaius Titius) all the balance on account, after a calculation has been made of the money for which Stichus, the slave of Gaius Titius, gave me a note.” The question arose whether suit could be brought to collect other notes which were not signed by Stichus, but only by the debtor himself. The answer was that only that obligation had been extinguished on which it was stated payment had been made. 1Lucius Titius wrote to Seius, who owed him four hundred sesterces on two notes, one of which was for a hundred, and the other for three hundred, to send him the amount of the note for a hundred by Mævius and Septicius. I ask whether Seius would be released, if he alleged that he also paid to Mævius and Septicius the amount of the note for three hundred sesterces? The answer was that if the creditor did not direct him to pay the note for three hundred sesterces, or did not ratify the payment after it had been made, that he would not be released. 2Lucius Titius, in two different stipulations, one calling for fifteen aurei at a high rate of interest, the other for twenty at a lower rate, bound Seius on the same date, in such a way that the note for twenty aurei should be paid first, that is to say, on the Ides of September. The debtor, after the time for payment of both stipulations had elapsed, paid twenty-six aurei, and it was not stated by the creditor under which stipulation payment was made. I ask whether what had been paid discharged the obligation which was first due; that is to say, whether the principal of twenty aurei should be considered to be paid, and the remaining six paid by way of interest. I answered that it is customary to understand it in this way.

90 The Same, Digest, Book XXVII. A son in the capacity of heir administered.the estate of his father, lent money forming part of it to Sempronius, which he received in instalments, and afterwards, being a minor, rejected the estate. The question arose whether the curator of the father’s estate would be entitled to an equitable action against Sempronius. The answer was that there was nothing in the case stated to indicate that he who had paid what he had borrowed should not be released.

91 Labeo, Epitomes of Probabilities by Paulus, Book VI. If your debtor refuses to be released by you, and he is present, he cannot be discharged by you against his will. Paulus: Further, you can release your debtor, if he is present, even without his consent, by substituting for him someone with whom you stipulate for payment of the debt with the intention of making a novation; and even if you do not give him a release, still, so far as you are concerned, the indebtedness is immediately extinguished, since, if you attempt to collect it, you will be barred by an exception on the ground of fraud.

92 Pomponius, Epistles, Book IX. If you promise to deliver me a slave belonging to another, or if you have been ordered to do so by will, and the slave should be manumitted by his master before you are obliged to deliver him to me, this manumission will have the same effect as death, for if the slave should die you will not be liable. 1If, however, anyone who has promised to give a slave, and, having been appointed an heir by the master, he delivers him to be free under a condition, he will be released.

93 Scævola, Questions Publicly Discussed. Where there are two joint-stipulators, and one of them appoints the other his heir, let us see whether the obligation will not be merged. It has been decided that it will not be merged. What was the advantage of this decision? If the heir brings suit to compel the property to be delivered to him, it must be given to him either because he is the heir, or because he is entitled to it in his own name. A great difference, however, exists in this case, for if one of the stipulators can be barred by a temporary exception arising from the contract, it is important to know whether the heir brings the action in his own name, or as the heir, so that in this way you can ascertain whether there will be ground for an exception, or not. 1Again, where there are two joint-promisors, and one of them appoints the other his heir, the obligation will not be merged. 2If, however, a principal debtor should make the heir his surety, the obligation will be merged. And it may be considered a general rule that, where a principal obligation is joined to one which is accessory, the two are merged, but where there are two principal obligations, one of them is added to the other rather for the purpose of strengthening the action rather than to produce a merger. 3What is the rule where a surety appoints the principal debtor his heir? The obligation will be merged, according to the opinion of Sabinus, although Proculus dissents from it.

94 Papinianus, Questions, Book VIII. Where anyone to whom a debtor has paid money belonging to another continues to demand payment of what is due him while the said money is in his hands, and does not offer to return what he has received, he will be barred by an exception on the ground of fraud. 1If, however, I lend money which is owned in common, or I pay it, a right of action and a release will immediately arise with reference to my share, whether the undivided joint interest in the money be taken into account, or whether this money is considered, not as to its corporeal existence, but as to its amount. 2But when a surety pays money belonging to someone else, for the purpose of being. released from liability, and it is expended, he can bring an action on mandate. Therefore, if he pays the money which he purloined, he can bring an action on mandate after he has paid the amount of the judgment obtained in an action of theft, or in one for the recovery of property. 3Favius Januarius to Papinianus, Greeting: Titius owed Gaius Seius a certain sum of money under the terms of a trust, and also as much more for another reason, that he was unable to collect, but which, after it had been paid, could not be recovered. A slave, who was the agent of Titius, paid the sum of money during the absence of his master, it being equal to the amount of one of the claims, and stated that it should be credited on the entire indebtedness. I ask upon which claim the amount which was paid should be considered to have been credited. The answer was that if Seius stated to Titius that the payment should be credited on the entire indebtedness, the term “indebtedness” would seem to indicate only the sum due under the trust, and not that for which he could not bring suit, and after the payment of which the money could not be recovered. But as the slave, who was the agent of Titius, paid the money during the absence of his master, the ownership of the said money would not pass to the creditor under the kind of obligation in which recourse could be had to an exception, even if payment was alleged to be made on this debt; because it is not probable that the master would have appointed his slave to pay the money on the debt which should not be paid; any more than to make payment out of the peculium in order to release the slave from liability as surety, which the slave had assumed without reference to the benefit of his peculium.

95 The Same, Questions, Book XXVIII. “Do you promise to deliver Stichus or Pamphilus, whichever one I may desire?” One of the slaves being dead, the survivor alone can be claimed, unless there was delay in delivering the one who died, and whom the plaintiff had chosen; for then he alone who died should have been delivered, as if he had been the only one included in the obligation. 1When the promisor was entitled to make the choice, and one of the slaves should die, the survivor alone can be demanded. If, however, one of them should die by the act of the debtor, as he had the right of selection, although, in the meantime, he only can be demanded who can be delivered, the debtor cannot tender the estimated value of the one who is dead, if he should happen to be much less valuable than the other; for the reason that this rule has been established for the benefit of the claimant, and to punish the promisor. Still, if the other slave should afterwards die without the fault of the debtor, an action can, under no circumstances, be brought by virtue of the stipulation; as the latter, at the time of his death, had not caused the stipulation to become operative. But, as fraud certainly should not remain unpunished, an action on this ground can, not unreasonably, be employed. The rule is otherwise, so far as the person of a surety is concerned, if he kills the slave who was promised; because he will be liable in an action under the stipulation, just as he would be if the debtor should die without leaving an heir. 2The acceptance of an estate sometimes merges an obligation by operation of law; for instance, where a creditor enters upon the estate of the debtor, as his heir, or, on the other hand, the debtor enters upon that of the creditor. It sometimes takes the place of payment if a creditor, who had lent money to a ward without the authority of his guardian, should become his heir; for he does not reserve from the estate merely the sum by which the ward profited, but the entire amount of the debt. It occasionally happens that an obligation which is void is confirmed by the acceptance of an estate; for if an heir who delivered the estate in accordance with the Trebellian Decree of the Senate becomes the heir of the beneficiary of the trust, or a woman who is surety for Titius becomes his heir, the civil obligation will begin to lose the benefit of the exception on account of the inheritance of the person who was liable by law, for it is not proper to come to the relief of a woman who assumes responsibility in her own name. 3The common statement that a surety who becomes the heir of a principal debtor is released from liability as surety is true when the obligation of the principal promisor is ascertained to be greater. For if the principal debtor was only liable, the surety will be released. On the other hand, it cannot be said that the obligation of the surety is not extinguished, if the debtor has a personal defence of his own; for if he lent money in good faith to a minor of twenty-five years of age, and he lost it, and the latter died within the time when he could have demanded complete restitution, leaving his surety his heir, it is difficult to hold that the right under the Prætorian Law by which the minor could obtain relief protects the obligation of the surety, which was the principal right, and to which the obligation of the surety was accessory, without taking into consideration the Prætorian Law. Therefore, the relief of restitution will be granted within the prescribed time to the surety who becomes the heir of the minor. 4A natural obligation is extinguished by operation of law, for instance, by the payment of money, as well as by a just agreement, or by an oath; because the bond of equity by which it is alone sustained is dissolved by the justice of the agreement, and therefore a surety given by a minor is said to be released for these reasons. 5The question arose whether anyone could stipulate as follows, “Do you promise to pay ten aurei to me, or to my son?” or as follows, “To me, or to my father?” A distinction can very properly be made in such cases, for when the son stipulates, the father is added only when the stipulation cannot be acquired for him; and, on the other hand, there is nothing to prevent the son from being added whenever the father stipulates, as where a father stipulates for his son, he is understood to stipulate for himself, when he does not do so expressly. In the case stated, it is clear that the son is added, not with reference to the obligation, but for the purpose of payment. 6I stipulate for an usufruct to be given to me, or to Titius. If Titius loses his civil rights, the power to pay him is not lost, because we can stipulate as follows: “Do you promise to pay me or Titius if his status changed?” 7When a lunatic or a ward is added, the money can properly be paid to his guardian or curator, if payment can legally be made to them also for the purpose of complying with a condition. This rule Labeo and Pegasus think should be adopted on account of its general convenience. It may be adopted, if the money was employed for the benefit of either the ward or the lunatic. This is also the case, where anyone is ordered to pay a master, and pays his slave in order that he may pay his master. But where he is ordered to pay a slave, and he pays his master, he is not understood to have complied with the condition, unless he pays him with the consent of the slave. The same opinion must be given with reference to payment, if Sempronius, having stipulated that ten aurei should be paid to him or to Stichus, the slave of Mævius, the debtor should pay the money to Mævius, the master of the slave. 8Where a creditor is in possession of the estate of his debtor which does not belong to him, and he obtains as much from it as would release the heir, if any other possessor of the estate were to pay him, it cannot be said that the sureties are released, for it must not be assumed that he from whom the estate has been evicted has paid the money. 9You have been guilty of fraud, in order to avoid being in possession of what you have taken from an estate belonging to another. If the possessor surrenders the property itself, or pays its appraised value in court, the transaction will be for your benefit, because the plaintiff has no further interest in the matter. If, however, you, having previously been sued, make payment on account of the fraud which you have committed, this will not, in any way, benefit the possessor of the property. 10If, by my order, you lend money to Titius, a contract of this kind resembles one made between a guardian and the debtor of his ward; and therefore, if the mandator is sued and has judgment rendered against him, reason suggests that the debtor will not be released, even though the money may have been paid, but the creditor must assign his rights of action against the debtor to the mandator, in order that the former may pay him. This has reference to the comparison which we have made with reference to the guardian and the debtor of his ward; for, as the guardian is liable to his ward for not having brought suit against his debtor, where suit is brought against one, the other will not be released; and if the guardian has judgment rendered against him, this fact will not benefit the debtor. Moreover, it is usually stated that a contrary action on guardianship should be brought against the ward, to compel the latter to assign his rights of action against the debtors. 11If the creditor should lose his case against the debtor, through his own fault, it is probable that he can obtain nothing from the mandator by the action on mandate, as he himself was to blame for not being able to assign his rights of action to the mandator. 12If it is agreed between the purchaser and the vendor before anything has been delivered by either of them, that the sale should be annulled, the surety who has been received will be released upon the dissolution of the contract.

96 The Same, Opinions, Book XI. The debtor of a ward, having been delegated by his guardian, paid the money to the creditor of the latter. Release will take place, if it is proved that this was done without any fraudulent arrangement with the guardian. When fraud is committed, however, the creditor of the guardian will be liable to the ward under the interdict based on fraud, if it should be established that he participated in it. 1Where a female ward became the heir of a magistrate who had fraudulently appointed a guardian for another minor, her guardians compromised with the latter. The female ward refused to ratify the compromise. She will, nevertheless, be released by the money of her guardian, and the guardians cannot bring a prætorian action against the minor, who received that to which he was entitled. It is evident that, if the minor should prefer to refund the money to the guardian of the female ward, after having annulled the transaction, he will be entitled to a prætorian action against the said ward who was the heir of the magistrate. 2A sister to whom a legacy was due from her brother, who was the heir, after an action to collect the legacy had been brought, made a compromise; and, being content with the note of the debtor, took no further steps to obtain her legacy. It was decided that, although no delegation was made, and no release took place, the risk of the note was still hers. Therefore, if she should claim the legacy, after having made the agreement, she could be legally barred by an exception based upon the agreement. 3Where pledges are given for two contracts at the same time, the creditor should credit any sum which he receives on the two contracts, in proportion to the amount of each debt, and the choice does not depend upon his will, as the debtor submitted the value of the property pledged to the said contracts in common. It was decided that, if the dates were separated, and the excess value of the pledges was liable, the first obligation would be legally paid by the price received for the pledge, and the second by the excess of the same. 4When anyone who has been appointed heir deliberates as to whether he will accept the estate, and money has been paid to a substitute by mistake to discharge a debt, and the estate afterwards falls to him, the reason for the condition disappears. On this account the obligation of the indebtedness is extinguished.

97 The Same, Definitions, Book II. When a debtor pays money on account of several claims, and does not indicate which one of them he wishes to discharge, that which involves infamy is considered to be entitled to the preference; next, the one to which a penalty is attached; third, one which is secured by the hypothecation or pledge of property; and after this an individual obligation shall have priority, rather than one for which another is liable, as, for instance, that of a surety. The ancient authorities established this rule because it seemed to them probable that a diligent debtor, if properly advised, would transact his business in this manner. Where none of these conditions exist, payment should first be made upon the oldest claim. If the amount paid is larger than that required by any single debt, the first obligation which has the preference having been discharged, the surplus will be considered to have been credited on the second one, either in full satisfaction, or for the purpose of diminishing it to that extent.

98 Paulus, Questions, Book XV. A certain man encumbered his property, and afterwards placed an additional lien on one of the tracts of land by promising it as a dowry for his daughter, and transferred it. If the latter should be evicted by the creditor, it must be held that the husband can proceed under the promise of the dowry, just as if the father had given, by way of dowry to his daughter, a slave who was to be free under a condition, or a legacy which had been conditionally bequeathed; for the delivery of these things cannot afford a release from liability, that is to say, except where they are certain to remain intact. 1A different opinion must be given with reference to the money or property which a patron, under the Favian Law, takes for himself after the death of his freedman; for this action, as it is recent, cannot revoke a release from liability when it has once been obtained. 2A minor of twenty-five years of age, who has been deceived by his creditor, is entitled to the benefit of this rule, and can obtain restitution of whatever he has paid on account of his debt. 3Where a father pays money belonging to a castrense peculium, we must understand this to be just as if he had made payment with what belonged to another; although it can remain in the possession of him to whom it was paid, if the son should die first, and intestate. But it is considered to be acquired only when the son dies, and the event has declared to whom it belongs. This is one of the cases in which matters, which subsequently occur, show what has previously happened. 4I can make a valid stipulation for ten aurei to be paid to me or to Titius absolutely on the Kalends; or conditionally to me on the Kalends of January, or to Titius on the Kalends of February. A doubt may arise as to its validity if it is to be paid to me on the Kalends of February, and to Titius on the Kalends of January. It is better, however, to say that the stipulation is valid, for as this stipulation has reference to a fixed time, payment cannot be made to me before the Kalends of February; and therefore payment can also be made to him. 5Where anyone stipulates for himself or for Titius, and says that if you do not pay Titius, you must pay him, he is held to have stipulated conditionally. Therefore, even if the stipulation was made as follows, “Do you stipulate to pay me ten aurei, or Titius five?” and five are paid to Titius, the principal debtor will be released, so far as the stipulator is concerned. This can be admitted if it was expressly understood a penalty should, so to speak, be imposed upon the promisor, if payment was not made to Titius. But where anyone stipulates simply for himself, or for Titius, Titius is only added for the sake of payment; and therefore where five aurei have been paid to him, the other five still remain in the obligation. And, on the other hand, if I stipulate for five aurei to be paid to me, and ten to be paid to him, and five are paid to Titius, the terms of the stipulation do not permit me to be released. Moreover, if he pays ten, and does not demand that five be refunded, ten will be due to me in an action on mandate. 6I stipulate for payment to me at Rome, or to Titius at Ephesus. Let us see whether, by payment to Titius at Ephesus, the debtor will be released from liability to me. If these are different acts, as Julianus thinks, the question is not the same. For, as the debtor is released on account of payment, which is the principal thing, he will be released, even if I should stipulate that Stichus be given to me, and Pamphilus to Titius, and he delivers Pamphilus to Titius; but when I stipulate merely for an act, for instance, for the construction of a house on my ground, or on that of Titius, if he builds on the ground of Titius, will not a release take place? for no one has said that, where one act is given for another, a release takes place. The better opinion is that, in this instance, it does take place, because one act is not considered to be performed for another, but the choice of the promisor is carried out. 7When a slave, subject to an usufruct, stipulates with reference to the property of the usufructuary, or for the benefit of the owner of the property, or for that of the usufructuary himself, the stipulation is void. But if he stipulates with reference to the property of the owner, for the benefit of the latter, or for that of the usufructuary, the stipulation will be valid; for, in this instance, the usufructuary can only receive payment, but cannot acquire any obligation. 8I promised land belonging to another, and the owner built a house on this land. The question arises whether the stipulation is extinguished. I answered that if I promised the slave of another, and he should be manumitted by his master, I will be released. The statement of Celsus is not accepted; that is to say, if the same slave should again be reduced to servitude by any law whatever, he will be considered as another slave. And he does not make use of a similar argument when he says that if, after you have promised a ship, the owner of the same ship should take it apart, and afterwards rebuild it with the same materials, you will be liable for it. For, in this instance, the ship is the same which you have promised to furnish, so that the obligation seems rather to have been suspended than extinguished. This case would be similar to that of the manumitted slave, if you suppose the ship to have been taken apart with the intention of converting the materials of which it was composed to other uses, and then the owner having changed his mind, they have been put together again. For this last ship seems to be a different one, just as the slave appears to be another man. The ground, however, on which the house was built causes a distinction to arise, for it does not cease to exist; and further, it can be claimed and its appraised value be paid, for the land is a part of the house, and, indeed, the greater part of it, since even the surface belongs to it. A different opinion, however, must be given if the slave who was promised should be captured by the enemy, for under these circumstances he cannot be claimed, just as if the time for doing so had not yet arrived; but if he should return under the law of postliminium, he can then lawfully be claimed, for this obligation remains in suspense, but the land continues to exist, just as all the other materials of which the building is composed. Finally, the Law of the Twelve Tables provides that a person can recover timbers fastened to his house, but, in the meantime, it prohibits them from being removed, and directs that their appraised value should be paid.

99 Paulus, Opinions, Book IV. Holds that a debtor should not be compelled to receive his money in other property, if he will sustain any loss by doing so.

100 The Same, Opinions, Book X. Where curators or guardians are appointed in,a province, I ask whether money which was lent by them, at interest, in the province, under the condition that it should be paid at Rome, can be paid to them there, when the said curators or guardians did not have the administration of the property in Italy; and if payment is made to them, whether the debtor will be released. Paulus gave it as his opinion that the money which was due to a ward could properly be paid to his guardians or curators who transacted his business, and that those appointed guardians or curators in a province do not usually administer the affairs of their trust in Italy, unless the guardians in the province expressly provide that payment should be made to them at Rome.

101 The Same, Opinions, Book XV. Paulus gave it as his opinion that those who are obliged to contribute equal shares under the terms of a trust do not appear to be released, because certain of their colleagues, through mistake, have contributed more than was due. 1Paulus also held that the obligation of the debtor who pays is one thing, and the claim of a creditor who sells a pledge is another; for when a debtor pays a sum of money, it is in his power to determine on what obligation he pays it. When, however, a creditor sells a pledge, he can credit the price of the same even upon something which is only due by nature, and therefore, after deducting this natural debt, he can demand the remainder as due.

102 Scævola, Opinions, Book V. A creditor postponed the acceptance of money tendered by his debtor in order to receive it at another time. This money, which the government was then using, was soon afterwards withdrawn from circulation by order of the Governor, as containing too much copper. Certain money belonging to a minor, which had been kept in order to be invested in good notes, was also rendered worthless. The question arose, who would be compelled to bear the loss? I answered that, according to the facts stated, neither the creditor nor the guardian would be compelled to bear it. 1The parties to a loan having agreed as to the principal of the debt but being involved in litigation with reference to the interest, it was finally decided on appeal that the interest which had been paid could not be recovered, and would not afterwards be due. I ask whether the money which had been paid should be credited on the interest, as was claimed by the plaintiff, or whether it should be employed to reduce the principal. I answered that if he who paid it said that he did so in order that it might be credited on the principal, it should not be credited as interest. 2Valerius, the slave of Lucius Titius, drew up the following receipt: “I have received from Marius Marinus such-and-such a sum of aurei to be credited on a larger amount.” I ask whether this amount should be credited for the coming year, as it constituted the balance for the past year. I answered that the payment should be considered a credit upon any sum which was previously due. 3Titius borrowed a sum of money, promised to pay interest at the rate of five per cent, and did so pay for a few years, and afterwards, without any agreement to that effect, but through mistake and ignorance, paid interest at six per cent. If the mistake should be discovered, I ask whether the amount which he had paid over and above the interest agreed upon in the stipulation would diminish the principal. The answer was, if he had paid more interest by mistake than he owed, any excess should be credited upon the principal.

103 Mæcianus, Trusts, Book II. When a debtor owing several debts pays money, Julianus very properly holds that it ought to be considered as credited on the obligation which, at the very time he paid it, he could have been compelled to satisfy in full.

104 The Same, Trusts, Book VIII. Payments and releases made by the heir before the estate is transferred should be ratified.

105 Paulus, On the Falcidian Law. When we say with regard to an heir that he should repay immediately to the surety of the testator what the surety had paid before the acceptance of the estate, must be understood to admit of some slight delay, for he need not come immediately with his bag of money.

106 Gaius, On Oral Obligations, Book II. It is one thing to be able to pay Titius in accordance with the terms of a stipulation, and another for this to take place by my permission. For if payment is properly made by virtue of the stipulation, the creditor can legally be paid even if I forbid it to be done; but if I permit payment to be made, this will not be legal, if, before it takes place, I notify the promisor not to pay.

107 Pomponius, Enchiridion, Book II. An oral obligation is discharged either naturally or civilly. It is discharged naturally, for instance, by payment, or where the property mentioned in the stipulation has ceased to exist without the fault of the promisor. It is discharged civilly, for example, by a release, as where the rights of the stipulator and the promisor become united in the same person.

108 Paulus, Manuals, Book II. Where anyone, in obedience to my mandate, makes a stipulation to be executed after my death, payment will legally be made to him, because such is the law of obligations. Therefore he can legally be paid, even against my consent. But when I have ordered my debtor to pay someone after my death, payment will not be legally made, because the mandate is annulled by death.