Iudicatum solvi
(Concerning security for the payment of a judgment.)
1 Paulus libro vicensimo quarto ad edictum. In stipulatione iudicatum solvi post rem iudicatam statim dies cedit, sed exactio in tempus reo principali indultum differtur.
1 Paulus, On the Edict, Book XXIV. The stipulation for the payment of a judgment becomes operative immediately after the decision is rendered; but the execution is postponed for the time granted to the principal debtor.
2 Idem libro septuagensimo primo ad edictum. Cum lite mortua nulla res sit, ideo constat fideiussores ex stipulatu iudicatum solvi non teneri.
2 The Same, On the Edict, Book LXXI. When the suit is ended the obligation is disposed of, and therefore it is held that under the stipulation the sureties are not liable for the payment of the judgment.
3 Ulpianus libro septuagensimo septimo ad edictum. Si quis apud aliquem iudicem iturus stipulatus est iudicatum solvi et agit apud alterum, non committitur stipulatio, quia non huius iudicis sententiae fideiussores se subdiderunt. 1Stipulationem iudicatum solvi et procurator et tutor et curator stipulari possunt. 2Procuratorem eum accipere debemus, cui mandatum est, sive huius rei tantum mandatum susceperit sive etiam universorum bonorum. sed et si ratum fuerit habitum, procurator videtur. 3Sed et si forte ex liberis vel parentibus aliquis interveniat vel vir uxoris nomine, a quibus mandatum non exigitur, an committatur stipulatio, quaeritur: magisque erit, ne committi debeat, nisi fuerit ei mandatum vel ratum habitum: quod enim eis agere permittitur edicto praetoris, non facit eos procuratores. itaque si talis persona interveniat, ex integro erit cavendum. 4Sed et quod de tutore diximus, ita accipiendum est, ut, si is fuerit, qui tutelam administrabat, cum tutor non esset, tutoris appellatione eum non contineri. 5Sed et si quidem tutor sit, non tamen quasi tutor negotia administret (vel dum ignorat vel alia ex causa), dicendum erit non committi stipulationem: nam edicto praetoris illi tutori agendi facultas datur, cui a parente maioreve parte tutorum eorumve, cuius ea iurisdictio fuit, tutela permissa erit. 6Sed et curatorem accipiemus furiosi furiosae, item pupilli pupillae, ceterorum quoque curatores, puta adulescentis: vel si alterius cuius curator sit, committi puto stipulationem. 7Si tutor esse proponatur regionis alicuius vel provinciae vel rerum Italicarum, consequens erit dicere, stipulationem ita demum committi, si ex ea causa egerint, quae ad administrationem eorum pertinebat. 8Si reus, postquam iudicatum solvi promisit, demens factus sit, an stipulatio committatur ob rem non defensam, quaeritur: magisque est, ut committatur, si nemo eum defendat. 9Ob rem non defensam stipulatio non committitur, quamdiu potest existere qui defendat. 10Si plures fuerint fideiussores, posteaquam cum uno lis contestata est ex clausula ob rem non defensam, ipse reus potest suscipere defensionem:
3 Ulpianus, On the Edict, Book LXXVII. If anyone, being about to appear before a certain judge, should stipulate for the payment of a judgment, and bring suit in another court, the stipulation will not take effect, because the sureties did not subject themselves to the decision of this judge. 1An agent, a guardian, and a curator, can stipulate for the payment of a judgment. 2We should understand an agent to be one upon whom authority has been conferred, either specially for this purpose, or generally for the administration of all the property. And he is even considered to be an agent if his acts subsequently should be ratified. 3The question arises, if a child or a relative should happen to interfere in the transaction of business, or a husband should do so in behalf of his wife, persons from whom no mandate is required, whether the stipulation will take effect. The better opinion is that it should not, unless authority was granted, or what has been done is ratified; for while they are permitted by the Edict of the Prætor to act, this does not render them agents; and therefore, if anyone of this kind should offer his services voluntarily, he must again furnish security. 4What we have said with reference to a guardian, however, must be understood to mean that if he is a person who administered a guardianship, when he was not actually a guardian, he should not be designated by that appellation. 5But even if he is a guardian, and does not transact business as one, or if he is not aware that he is a guardian, or any other cause exists, it must be said that the stipulation will not take effect. For, by the Edict of the Prætor, the power of acting as guardian is granted to him to whom the guardianship was entrusted, either by the father, by the majority of the guardians, or by those invested with competent jurisdiction. 6By the term curator, we understand the curator of an insane person of either sex, or of a male or female ward, or of any other person, for example, a minor, and, under these circumstances, I think that the stipulation will take effect. 7If we suppose that a guardian appointed for any region or province, or for the administration of property in Italy, is intended, the result will be that we can say that the stipulation will only take effect if he acted with reference to matters which pertained to his administration. 8If the defendant, after having promised to pay the judgment, should lose his mind, the question arises whether the stipulation will become operative, for the reason that his case has not been defended. The better opinion is that it will become operative, if no one appears for his defence. 9A stipulation does not take effect merely because a case is not defended, as long as anyone can appear to undertake the defence. 10Where there are several sureties, after issue has been joined with one of them with reference to the clause, “Because the case is not defended,” the principal debtor can undertake the defence.
4 Iulianus libro quinquagensimo quinto digestorum. is autem, cum quo actum fuit, absolvi debet.
4 Julianus, Digest, Book LV. He, also, against whom the action was brought should be discharged.
5 Ulpianus libro septuagensimo septimo ad edictum. Tam tamen fideiussore, qui iudicium acceperat, damnato frustra defensionem reus suscipit: ceterum et si solutum fuerit, posteaquam iudicatum est, repetitionem constituerimus eius quod solutum est. 1Unus ex fideiussoribus vel heredibus pluribus alio cessante suscipere defensionem potest. 2In hac stipulatione quia plures causae sunt una quantitate conclusae, si committeretur statim stipulatio ex uno casu, amplius ex alio committi non potest. 3Nunc videamus, qualis defensio exigatur, ne committatur stipulatio, et quarum personarum. et si quidem ex personis enumeratis in defensionem quis succedat, palam est recte rem defendi nec committi stipulationem. si vero exstrinsecus persona defensoris interveniat, aeque stipulatio non committetur, si modo ille paratus sit rem boni viri arbitratu defendere, hoc est satisdare: sic enim videtur defendere, si satisdet: ceterum si simpliciter paratus sit intervenire nec admittatur, committetur ista stipulatio ob rem non defensam. quod si quis eum vel cum satisdatione vel sine satisdatione admiserit, consequens erit dicere, stipulationis istius nullam partem committi, quia sibi imputare debet, qui talem defensorem admisit. 4Si ex fideiussoribus, qui iudicatum solvi caverant, existat defensor, placuit ob rem iudicatam stipulationem non committi ceteraque eadem esse, atque si extraneus defensor existat. 5In hac stipulatione hoc tractatur, an hi qui fideiusserint, si defensionem omiserint, mandati iudicio teneantur. et est verius non teneri: hi enim in quantitatem intervenerunt et hoc illis fuit mandatum, non in defensione. 6Quid tamen, si et hoc sibi adsumpserint, ut defendant, an mandati possint agere? et si quidem victi sunt, utique quod ob rem iudicatam praestiterunt consequentur: sumptus tamen litis minime petent. si autem optinuerunt, poterunt sumptus litis consequi, quasi iuxta mandatum, etsi non mandatum fecerint. 7Si tamen plures fideiussores defendere fuerint parati, videamus, utrum unum defensorem debent dare, an vero sufficiat, ut unusquisque eorum pro parte sua defendat vel defensorem substituat. et magis est, ut, nisi unum dent procuratorem, desiderante scilicet hoc actore, committatur stipulatio ob rem non defensam: nam et plures heredes rei necesse habebunt unum dare procuratorem, ne defensio per plures scissa incommodo aliquo adficiat actorem. aliud est in heredibus actoris, quibus necessitas non imponitur, ut per unum litigent. 8Illud sciendum est ibi rem esse defendendam, ut recte defendatur, ubi debet agi.
5 Ulpianus, On the Edict, Book LXXVII. If, however, the surety, who is a party to the action, should have judgment rendered against him, the principal debtor will in vain undertake the defence. For even when payment of the debt has been made after the case had been decided, suit can be brought to recover what has been paid. 1If no one else appears for that purpose, one of several sureties or heirs can undertake the defence. 2For the reason that there are several claims included in a single sum, in this stipulation, if, in one of them, the stipulation should immediately take effect, this cannot occur, so far as any other is concerned. 3Now let us see what defence is required, and by whom, in order to prevent the stipulation from taking effect. And, if any one of the persons enumerated as having a right to undertake the defence should do so, it is clear that the case is properly defended, and that the stipulation will not take effect. Where, however, someone, outside of those above mentioned, comes forward to defend it, the stipulation will not, in this instance, become operative; provided he is prepared to undertake the defence in accordance with the judgment of a good citizen, that is to say, by furnishing security, as he is considered to undertake it if he gives security. If, however, he is merely ready to appear, and is not accepted, the stipulation will take effect, because the action was not defended. But where anyone accepts him, either with or without security, the result will be that it must be said that no part of the stipulation becomes operative, because he who accepts such a defender has no one to blame but himself. 4Where one of the sureties who has given bond for the payment of the judgment appears to defend the case, it has been decided that the stipulation for the payment of the judgment does not take effect, and that all other matters are in the same condition as if a stranger had undertaken the defence. 5The question arose, with reference to this stipulation, whether the sureties would be liable in an action on mandate, if they abandoned the defence. The better opinion is that they would not be liable; as they only became sureties for a definite amount, and their mandate related to this, and not to the defence of the case. 6But what if they had taken it upon themselves to defend the case, could they bring an action on mandate? Where, indeed, they were defeated, they could recover what they had paid out in satisfaction of the judgment, but they could, by no means, recover the cost of the litigation. If, however, they gained the case, they could recover the expenses of litigation, just as under a mandate, although they did not act in compliance with the mandate. 7Where, however, several sureties are ready to undertake the defence, let us see whether they should appoint a single defender, or whether it will be sufficient for each of them to undertake the defence of his own share, or substitute a defender. The better opinion is that, unless they appoint a representative, that is to say, if the plaintiff desires it, the stipulation will take effect on the ground that the case is not defended. For several heirs of a debtor are obliged to appoint an attorney for fear that, if the defence should be divided among several parties, it will subject the plaintiff to inconvenience. The case is otherwise with respect to the heirs of the plaintiff, or whom the necessity of appearing in court by a single representative is not imposed. 8It must be remembered that, for a case to be defended properly, this must be done before a court having jurisdiction.
6 Idem libro septuagensimo octavo ad edictum. Iudicatum solvi stipulatio tres clausulas in unum collatas habet: de re iudicata, de re defendenda, de dolo malo.
6 The Same, On the Edict, Book LXXVIII. The stipulation for the payment of a judgment contains three clauses: one relating to the settlement of the claim; another to the defence of the case; and still another providing against the commission of fraud.
7 Gaius libro vicensimo septimo ad edictum provinciale. Si ante acceptum iudicium prohibitus fuerit procurator a domino et actor ignorans prohibitum eum esse egerit, an stipulatio committatur? et nihil aliud dici potest quam committi. quod si quis sciens prohibitum esse egerit, Iulianus non putat stipulationem committi: nam ut committatur, non sufficere ait cum ea persona acceptum esse iudicium, quae stipulationi comprehensa est, sed oportere etiam causam personae eandem esse, quae stipulationis interponendae tempore fuit. et ideo si is, qui procurator datus est, heres exstiterit domino atque ita acceperit iudicium sive etiam prohibitus acceperit, non committitur stipulatio: nam et alias responsum esse, si quis absentem defendens satisdederit, deinde, vel procurator ab eo datus vel postquam heres ei extitit, iudicium acceperit, fideiussores non teneri.
7 Gaius, On the Provincial Edict, Book XXVII. If, before issue is joined, the attorney for the defendant should be forbidden by his client from appearing, and the plaintiff, not knowing that this had been done, should proceed with the case, will the stipulation take effect? Nothing else can be said than that it will take effect. When, however, anyone knowing of the prohibition imposed upon the attorney proceeds to trial, Julianus does not think that the stipulation will become operative. For, in order that it may do so, he says that it is not sufficient for issue to be joined with the person included in the stipulation, but it is necessary that the claim of that person should be the same as it was at the time when the stipulation was entered into. Hence, if he who was appointed attorney appears as the heir of his client, and as such conducts the case, or if he should do this even after he has been forbidden, the stipulation will not become operative. For otherwise, it has been decided that if anyone who is defending an absent person should give security, and afterwards should either be appointed his attorney, or become his heir, and conduct the case, the sureties will not be liable.
8 Paulus libro septuagensimo quarto ad edictum. Si petitor post satisdationem ante iudicium acceptum heres possessori exstiterit, extinguitur stipulatio.
8 Paulus, On the Edict, Book LXXIV. If the plaintiff, after security has been furnished, but before issue has been joined, becomes the heir of the possessor, the stipulation will be extinguished.
9 Ulpianus libro quarto decimo ad edictum. Iudicatum solvi stipulatio expeditam habet quantitatem: in tantum enim committitur, in quantum iudex pronuntiaverit.
9 Ulpianus, On the Edict, Book XIV. The stipulation for the payment of a judgment has reference to an indeterminate sum, for it becomes operative for the amount that the judge may decide to be due.
10 Modestinus libro quarto pandectarum. Si ad defendendum procurator datus fuerit, satisdare iubetur iudicatum solvi stipulatione, quae non ab ipso procuratore, sed a domino litis interponitur. quod si procurator aliquem defendat, ipse cogitur satisdare iudicatum solvi stipulatione.
10 Modestinus, Pandects, Book IV. If an attorney is appointed for the purpose of making a defence, he is ordered to give security for the payment of the judgment, by means of a stipulation which is not interposed by the attorney himself, but by the principal party in the case. If, however, the attorney defends someone, he himself is compelled to furnish security by the stipulation for the payment of the judgment.
11 Paulus libro septuagensimo quarto ad edictum. Si servus, qui in rem actione petebatur, lite contestata decesserit, deinde possessor litem deseruerit, quidam fideiussores eius pro lite datos non teneri putant, quia mortuo homine nulla iam res sit: quod falsum est, quoniam expedit de evictione actionis conservandae causa, item fructuum nomine rem iudicari.
11 Paulus, On the Edict, Book LXXIV. If a slave, who is sought to be recovered by a real action, dies, after issue has been joined, and the possessor then abandons the suit, some authorities hold that the sureties given for the payment of the judgment will not be liable, because the slave having died, the property is no longer in existence. This is false, as it is expedient that a decision should be rendered not only for the purpose of preserving the right of action in case of eviction, but also on account of the profits.
12 Pomponius libro vicensimo sexto ad Sabinum. Si reus post iudicatum solvi ab eo datum in magistratu sit nec invitus in ius vocari possit, tamen, nisi res boni viri arbitratu defendatur, fideiussores tenentur.
12 Pomponius, On Sabinus, Book XXVI. Where a defendant, after having given security for payment of the judgment, becomes a magistrate, he cannot be brought into court without his consent; still, if the suit is not defended, as in the judgment of a good citizen it should be, the sureties will be liable.
13 Ulpianus libro septimo disputationum. Cum quaerebatur, si interposita iudicatum solvi stipulatione, cum quis rem non defenderet, postea ex eremodicio sententiam esset passus, an ob rem iudicatam clausula committatur: dicebam unam clausulam in stipulatione iudicatum solvi et ob rem non defensam et ob rem iudicatam in se habere: cum igitur iudicatum solvi stipulatio una cludatur clausula, sive res iudicetur sive res non defendatur, merito quaeritur, si altera causa committatur, an ex altera rursum committi possit. ecce enim si quis stipuletur: ‘si navis ex Asia venerit, aut si Titius consul fuerit’, constat, sive navis prior venerit sive Titius consul ante factus sit, committi stipulationem: sed ubi commissa est ex priore causa, ex altera, licet existat condicio, amplius non committitur: altera causa enim, non utraque inerat stipulationi. proinde videndum, stipulatio ob rem non defensam utrum commissa est re non defensa an non prius creditur commissa, nisi ex stipulatione lis fuerit contestata? quod magis est: et ideo nec fideiussoribus videtur statim dies cedere, ubi res coeperat non defendi. proinde si forte lis finita fuerit, ad quam defensio erat necessaria, vel solutione vel transactione vel acceptilatione vel quo alio modo, consequenter placuit evanescere ob rem non defensam clausulam. 1Si fuero a fideiussore procuratoris stipulatus iudicatum solvi quasi in rem acturus et postea in personam egero, vel alia actione acturus, aliam autem dictavero actionem, non committitur stipulatio, quia de alia actum videtur, de alia stipulatio interposita.
13 Ulpianus, Disputations, Book VII. When a stipulation is made for the payment of a judgment, and the party does not defend the case, and afterwards he suffers judgment to be taken by default, the question arises, does the clause having reference to the judgment become operative? I said that the clause in the stipulation contained two things: one relating to the defence of the case, and the other to the judgment. Therefore, as the stipulation with reference to the payment of the judgment includes everything in one clause, if a decision is rendered, or the case is not decided, the question is very properly asked whether, for one of these reasons, the stipulation will become operative with reference to the other clause. For example, if anyone should stipulate, “If a ship should arrive from Asia,” or, “If Titius should become Consul,” it is established that no matter whether the ship arrives first, or Titius first becomes Consul, the stipulation will become operative. Where, however, it takes effect on account of the first clause, it cannot do so on account of the second, even though the condition may be complied with; for it is one of the clauses, and not both of them, which renders the stipulation operative. Hence it should be considered whether the stipulation having reference to the failure to defend the case will take effect, if this is not done; or whether one must believe that it does not become operative before issue is joined. The latter opinion is the better one; hence the sureties do not appear to be liable the very moment that the action is not defended. Therefore, if a case in which a defence is necessary should be terminated either by payment, by compromise, by a release, or in any other way, it has been decided that, in consequence, the clause that has reference to the failure to defend the case ceases to have any effect. 1If I, being about to bring an action in rem, should stipulate with the surety of an attorney to pay a judgment, and I afterwards intend to bring one in personam, but before doing so, I resolve to bring another, the stipulation will not take effect; because it appears that what has been done has reference to one thing, and the stipulation entered into has reference to another.
14 Iulianus libro quinquagensimo quinto digestorum. Si ex duobus fideiussoribus, qui iudicatum solvi spoponderant, alter ob rem non defensam partem suam solverit, nihilo minus res defendi poterit. nec tamen is, qui solverit, repetet: stipulatio enim pro parte eius perempta est, perinde ac si acceptum ei factum fuisset. 1Quotiens ex stipulatione iudicatum solvi ob rem non defensam agitur cum fideiussoribus, non est iniquum caveri dominum priore iudicio absolvi, quia omissa cautione fideiussores mandati iudicio non consequentur aut certe cogantur dominum priore iudicio defendere.
14 Julianus, Digest, Book LV. When one of two sureties who have promised to pay a judgment pays his share because the case was not defended, the defence can, nevertheless, be undertaken; but he who made payment cannot recover anything, as the stipulation is extinguished, so far as his share is concerned, just as if he had received a release. 1Whenever proceedings are instituted against sureties under a stipulation to pay a judgment, on account of the case not having been defended, it is not inequitable to provide that the principal shall be released from liability for the first judgment; because, if this provision were omitted, the sureties could not have recourse to the action on mandate, or they would certainly be compelled to defend the principal against the first judgment.
15 Africanus libro sexto quaestionum. Haec stipulatio ‘quamdiu res non defendatur’, simul atque defendi coeperit aut defendi debere desierit, resolvitur.
15 Africanus, Questions, Book VI. The following stipulation, “As long as the case is not defended,” is annulled whenever the defence begins, or as soon as the obligation to defend it is at an end.
16 Neratius libro tertio membranarum. Ex iudicatum solvi stipulatione ob rem non defensam cum uno ex fideiussoribus agere volo: is, quod pro parte eius fit, solvere mihi paratus est: non debet mihi in eum dari iudicium. neque enim aequum est aut iudicio destringi aut ad infitiationem compelli eum, qui sine iudice dare paratus est, quo non amplius adversarius eius per iudicem ab eo consecuturus est.
16 Neratius, Parchments, Book III. When I desire to institute proceedings against one of several sureties, under a stipulation to pay the judgment because the case has not been defended, and the surety is ready to pay his share, judgment should not be rendered in my favor against him. For it is not just for him. to be annoyed by an action, or be compelled to interpose a denial, where he is ready to pay what he owes without a judgment by which his adversary could not compel him to pay a larger sum.
17 Venuleius libro sexto stipulationum. Ex clausula re iudicata, dolo malo, ob rem non defensam in solidum committitur stipulatio: non enim videbitur defensa res boni viri arbitratu, quae non in solidum defensa sit.
17 Venuleius, Stipulations, Book VI. When, through fraud, a case has not been completely defended, the stipulation will become operative under the clause relating to the payment of the judgment; for a suit is not considered to be properly defended in accordance with the opinion of a good citizen where a defence is not made for the entire amount of the property involved,
18 Idem libro septimo disputationum. Vir bonus non arbitratur indefensam esse rem, de qua praetor iudicium accipere non cogat.
18 The Same, Disputations, Book VII. A good citizen does not consider a case to be undefended in which the Prætor does not compel this to be done.
19 Idem libro nono stipulationum. Novissima clausula iudicatum solvi stipulationis ‘dolum malum abesse afuturumque esse’ et in futurum tempus permanens factum demonstrat. itaque et si forte decesserit is, qui dolo fecerit, tenebitur heres eius: verbum enim ‘afuturumque esse’ plenissimum est et ad omne tempus refertur, ut, si aliquo tempore non afuerit dolus, quoniam verum sit non afuisse, committatur haec clausula. 1Si autem adiectum sit: ‘si huius rei dolus malus non aberit, quanti ea res est, dari spondes?’, et ob extranei dolum promissor poena tenebitur. 2Doli autem mali clausula, sicut reliquae stipulationes, in quibus tempus nominatim adiectum non est, ad principium stipulationis refertur.
19 The Same, Stipulations, Book IX. The last clause of the stipulation for the payment of a judgment, “That there is no fraud, and will be none,” indicates a permanent fact for the future. Therefore, if he who was guilty of fraud should die, his heir will remain liable; for the words, “will be none,” have great latitude, and refer to all coming time, and if fraud should be committed at any time, for the reason that it is true that there was fraud, this clause will become operative. 1And where the following is added, “If any fraud should be committed in this matter, do you promise to pay the entire value of the property?” the promisor will be liable to the penalty, even on account of fraud committed by a stranger. 2The clause relating to fraud, however, as is the case with other stipulations in which the time is not expressly mentioned, refers to the beginning of the stipulation.
20 Scaevola libro vicensimo digestorum. Cum apud Sempronium iudicem datum reus defenderetur, stipulatione cautum est, ut, quod Sempronius iudex iudicasset, praestaretur: a cuius sententia petitor appellavit et, cum apud competentem appellationi iudicem res ageretur, defensore condemnato quaesitum est, an stipulatio commissa esset. respondit secundum ea quae proponerentur non esse iure commissam. Claudius: ideo stipulatione adicitur: ‘quive in eius locum substitutus erit’.
20 Scævola, Digest, Book XX. While a party to a suit was making a defence before Sempronius, the judge, it was provided by a stipulation that the amount decided to be due by Sempronius, the judge, should be paid. The plaintiff appealed from his decision, and the case having been taken before a competent court on appeal, and a decision rendered against the defendant, the question arose whether the stipulation would become operative. The answer was that, according to the facts stated, it would not become operative by law. Claudius: For this reason the following is added in a stipulation, “Or whoever may be substituted in his place.”
21 Idem libro singulari quaestionum publice tractatarum. Si unus ex fideiussoribus ob rem non defensam conventus sit, deinde postea res defendatur, alter fideiussorum ob rem iudicatam conveniri potest. et si reus promittendi duobus heredibus relictis decesserit, alter rem non defendat, alter defendat: is qui non defendat ob rem non defensam conveniri potest, ille qui defendat ob rem iudicatam, quoniam in unius eiusdemque persona non posse committi has duas clausulas creditur et nos dicimus semper praevalere rei iudicatae clausulam eamque solam committi.
21 The Same, Questions Publicly Discussed. Where one of several sureties is sued for not having defended a case, and it is afterwards defended, the other surety can be proceeded against to compel the execution of the judgment. If the principal promisor should die, leaving two heirs, and one does not defend the case and the other does, the former can be sued for not having done so, and the latter can be proceeded against to compel the execution of the judgment; as it is held that these two clauses cannot become operative against one and the same person. We say that the clause relating to the judgment would always take precedence over the others, and that it alone takes effect.