1Ulpianus, On the Edict, Book LXX. There are three kinds of prætorian stipulations; namely, judicial, cautional, and common. 1We call those stipulations judicial which are interposed on account of a judgment, in order to procure its ratification, so that it may be paid, or notice served with reference to the construction of a new work. 2Cautional stipulations are those which take the place of a lawsuit, and are introduced to permit a new action to be brought; such are stipulations with reference to legacies and guardianships, to enable ratification to be made, and for the prevention of threatened injury. 3Common stipulations are those which are entered into for the purpose of causing a party to appear in court. 4It should be remembered that all stipulations are in their nature cautional, for in agreements of this kind the intention is that, by means of them, a person may be rendered more secure and safe. 5Some of these prætorian stipulations require security, others merely a promise; but there are very few of them which require a mere promise, and, when they are enumerated, it will be evident that those which are mentioned are not promises, but obligations with security. 6A stipulation made with reference to notice of a new work sometimes includes security, and sometimes a promise. Hence, after what kind of a notice to discontinue a new work should security be given? How should it be given? Security must be given for a work which is constructed on private property, but where it is constructed on public lands, a mere promise will be sufficient. Those, however, who contract in their own names promise; those who contract in the name of another furnish security. 7Likewise, in a case of threatened injury, sometimes a promise is made, and at others security is given; for when anything is built in a public stream, security is furnished, but a mere promise is made with reference to houses. 8Stipulation for double damages is a promise, unless an agreement was made that security should be furnished. 9Where, however, there is some controversy, as, for instance, if, for the purpose of annoying an adversary, it is stated that a stipulation should be interposed, the Prætor himself should decide the case summarily, and either order security to be furnished, or refuse it. 10But where anything is to be added, taken from, or changed in the stipulation, this belongs to the jurisdiction of the Prætor.

2Paulus, On the Edict, Book LXXIII. Prætorian stipulations either involve the restitution of the property, or an indeterminate amount, 1As, for instance, the stipulation with reference to notice of a new work, whereby it is provided that everything shall be restored to its former condition. Therefore, whether the plaintiff or the defendant dies, leaving several heirs; and whether either of them gains, or loses the case, everything must be restored to its former condition; for as long as anything remains it cannot appear that complete restitution has been made. 2A stipulation involves an indeterminate amount, when an agreement is made that the judgment shall be paid; that the principal will ratify what has been done; that injury will not be caused; and other things of this kind. With reference to these, it can be said that they are divided among the heirs, although it may be maintained that a stipulation made by the deceased, and which descends from him, cannot, in the persons of his heirs, render their condition different. But, on the other hand, it is perfectly reasonable that if one of the heirs of the stipulator gains his case, the stipulation will become operative, so far as his share is concerned; since this is caused by the words of the stipulation: “As much as the property is worth.” If, however, one of the heirs of the promisor is in possession of the entire property, Julianus says that judgment must be rendered against him in full. It may be doubted whether he himself, as well as his sureties, are liable under the stipulation, or even liable at all; and it is a question whether the stipulation becomes operative. If the possessor should die after issue has been joined, one of the heirs ought not to have judgment rendered against him for a larger share than he is entitled to from the estate, even though he may be in possession of all the land.

3Ulpianus, On the Edict, Book LXXIX. Generally speaking, in all prætorian stipulations security is furnished, even to agents.

4Paulus, On the Edict, Book LXXV. Prætorian stipulations are often interposed when, without the fault of the stipulator, the security ceases to exist.

5Ad Dig. 46,5,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 330, Note 12.The Same, Qn the Edict, Book XLVIII. In all prætorian stipulations, it should be noted that if my agent stipulates for my benefit, an action will lie in my favor by virtue of the stipulation, if proper cause is shown. The same thing happens where a factor is in such a position that, through his personal interposition, the principal will lose his. merchandise; for example, where his property is to be sold, for the Prætor should come to the relief of the principal.

6The Same, On Plautius, Book XIV. In all prætorian stipulations in which something is to be previously done, and if it is not done, we impose a penalty, the stipulation takes effect on account of the penalty.

7Ulpianus, On the Edict, Book XIV. Prætorian security requires persons to appear for themselves, and no one can replace this kind of security by pledges, or by depositing money or articles of gold or silver.

8Papinianus, Questions, Book V. Paulus says that when anyone is appointed under a condition, and is recognized as capable of holding possession of the estate, he will be compelled to give security to the substitute, but for a more remote date. For the Prætor does not wish the benefit which he confers to become a source of deceit, and a man can seem to demand security for the purpose of annoyance, when another precedes him. 1When a legacy has been bequeathed to Mævius and to Titius, under opposite conditions, security is furnished to both of them, because both expect a legacy under the will of the deceased.

9Venuleius, Stipulations, Book I. In prætorian stipulations, if the language is ambiguous, it is the duty of the Prætor to interpret it, for its intention should be determined.

10Ulpianus, Opinions, Book I. Answers Valerianus. If the Prætor, who previously had ordered security furnished for three years afterwards, should direct it to be given for a longer time, because he desired that the first stipulation should be abandoned, he is considered to have granted an exception to those who were bound by the first stipulation.

11Venuleius, Actions, Book VIII. In stipulations which include a promise of as much as the property is worth, it is more convenient to mention a definite sum, for the reason that it is frequently difficult to prove the amount of the interest of each of the persons in question and this is reduced to a very small sum.