Ratam rem haberi et de ratihabitione
(Concerning Security for Ratification.)
1Papinianus, Questions, Book XXVIII. When anyone stipulates that an act will be ratified, although not the same but another person, against whom no action can be brought if ratification should take place, is sued, it has been decided that the stipulation will take effect; for instance, where a surety or another of the joint-possessors, who is a partner, is made defendant.
3The Same, Opinions, Book XII. A minor of twenty-five years of age, who was a creditor, desiring to collect his money, a man whom he had appointed his agent gave security to the debtor that payment of the obligation would be ratified. If complete restitution should be granted, it was decided that a suit for the collection of money which was not due could not be brought, and that the stipulation had not become operative. The same rule will apply, if the minor should ratify the act of a false agent. Therefore, where a mandate had been given, it should be provided, “That if he, or his heir should obtain complete restitution, or anyone to whom the property in question belongs should do so, a sum of money equal to the value of the property shall be paid.” If, however, there was no mandate, the ordinary clause referring to ratification ought to be inserted, and it would be more prudent to do this with the consent of the contracting parties. Otherwise, if there is no agreement to this effect, and the minor creditor does not give his consent, an action must be granted. 1A false agent gave security for ratification, and having lost the case, his principal appealed from the decision of the judge, and it appeared that the condition of the stipulation had failed to be fulfilled, as the unsuccessful party could have had recourse to a common remedy. If, however, the principal, not having ratified the act of his agent, should collect the money, the stipulation for ratification would take effect, so far as the money which the master had received is concerned, although the agent himself might have received nothing.
6Hermogenianus, Epitomes of Law, Book I. Where a guardian has been accused, or is liable to suspicion, his defender can be compelled to furnish security that his principal will ratify his act, if the guardian desires to defend the case.
8Venuleius, Stipulations, Book XV. An attorney instituted proceedings for the production of property, and his adversary was discharged because he did not have possession of it. Then, he having subsequently obtained possession of the same property, the principal brought an action against him to compel him to produce it. Sabinus says that the sureties will not be liable, as this is a different matter; for even if the principal should bring the action in the first place, and, after his adversary had been discharged because he did not have possession of the property, he should bring another, he would not be barred by an exception on the ground of res judicata. 1If an agent has collected money from a debtor, and given him security that his principal will ratify his act, and the latter afterwards brings suit for the same sum of money, and loses the case, the stipulation will become operative; and if the agent pays the same money to his principal without an order of court, it can be recovered by a personal action. Where, however, the debtor brings suit under the stipulation, it may be said that if the principal undertakes the defence of his agent he cannot improperly make use of an exception on the ground of bad faith against the debtor, because the obligation remains a natural one. 2If anyone should permit his status to be disputed by an agent, he should take security from him that he will not continually be molested on this account, and if the principal, or his representatives, does not ratify his act, namely, that the agent attempted to reduce the party in question to slavery; or if the latter obtained a judgment against the agent in favor of his freedom, the entire value of the property must be paid to him when his right to liberty has been established, that is to say, to the extent of his interest in not having his status placed in jeopardy, as well as for the expenses incurred by the litigation. Labeo, however, thinks that a definite sum should be included, because the estimation of freedom is capable of indefinite extent; the stipulation, however, is held to become operative from the very moment when the principal refused to ratify the act of the agent. Still, an action cannot be brought under the stipulation before a judgment has been rendered with reference to the freedom of the alleged slave, because if it should be decided that he was a slave, the stipulation becomes void, and if any action can be brought he is understood to have acquired it for his master.
9Ulpianus, On the Edict, Book IX. An agent who is appointed by a guardian must, by all means, give security; but the agent of a municipality, the head of a university or the curator of property appointed with the consent of creditors, is not personally required to give security.
10The Same, On the Edict, Book LXXX. Sometimes, by agreement, a stipulation for the ratification of an act is interposed; for instance, where an agent either sells, leases, or hires, or payment is made to him:
11Hermogenianus, Epitomes of Law, Book VI. Or he enters into a contract, or transacts any business whatsoever, in the name of a person who is absent.
12Ulpianus, On the Edict, Book LXXX. For anyone who makes a contract usually stipulates for ratification in order to be in a more secure position. 1To ratify an act is to approve and recognize what has been done by a false agent. 2Julianus says that it is important to know when the principal should ratify the payment made to his agent. Should this be done as soon as he is informed of it? The time should be understood with a certain latitude, and should not be too long or too short an interval, which can be better understood than expressed by words. What then would be the rule, if he did not ratify it immediately, but did so afterwards? This does not have the effect of interfering with the exercise of his right of action, and, because he did not ratify it in the first place, he says that he will still be entitled to his action. Therefore, if he should demand what had already been paid to his agent, he can bring suit under the stipulation, just as if he had not stated afterwards that he would ratify the payment. I think, however, that the debtor will be entitled to an action on the ground of fraud. 3Whether anyone sues, or takes advantage of a set off, the stipulation that the principal will ratify the act immediately becomes operative. For no matter in what way the latter may show his disapproval of what has been done by the agent, the stipulation will take effect.
13Paulus, On the Edict, Book LXXVI. If the stipulation that the principal will ratify the act should become operative, I can bring an action for all my interest in the matter; that is to say, for all that I have lost, and all that I could have gained. 1Where a legacy is paid to an agent without judicial authority, Pomponius says that he must give security for ratification.
14The Same, On Plautius, Book III. If anyone should promise one of the joint-debtors that the principal will ratify the payment, and that it will not again be demanded, it must be said that the stipulation will take effect if the money is demanded by a party to the same obligation.
15The Same, On Plautius, Book XIV. The words, “will not again be demanded,” Labeo understands to mean, demanded in court. If, however, the debtor is summoned to court, and security is furnished that he will appear, and suit has not yet been begun, I do not think that the stipulation relating to the further demand of the money will take effect, for the claimant does not actually demand it, but merely intends to do so. But where the money was paid without a judgment, the stipulation becomes operative; for if anyone makes use of a set-off, or a deduction against the claimant, it is properly said that he can be held to have made a demand, and that the stipulation that the money will not be demanded a second time becomes operative. For even if an heir, against whom judgment has been rendered, should not make the demand, if he does either of these things, he will be liable under the will.
16Pomponius, On Plautius, Book III. If payment of a sum of money which was not due should be made to an agent, proceedings can immediately be instituted under this stipulation against the agent, to compel ratification by the principal, so that it may be determined whether what has been improperly paid should be recovered from the principal, if he has ratified it; or whether a personal action should be brought against the agent, if the principal does not confirm the transaction. 1When an agent demands a tract of land, and gives security (as is customary) that his principal will ratify his act, and afterwards the principal sells the land, and the purchaser claims it, Julianus says that the stipulation that the transaction will be ratified becomes operative.
17Marcellus, Digest, Book XXI. Titius brought suit for ten aurei in the name of a creditor against the debtor of the latter, and the principal ratified a part of the claim. It must be said that a portion of the obligation is extinguished, just as if he had stipulated for, or collected ten aurei, and the creditor had approved not all, but a part of the transaction. Therefore, if I have stipulated for ten aurei, or Stichus, whichever I wish, and, during my absence, Titius demands five, and I ratify his act, what has been done is considered valid.
18Pomponius, On Sabinus, Book XXVI. Where an agent has furnished security that his principal or the heir of the latter will ratify his act, and one of the heirs of the principal ratifies it, but the other does not, there is no doubt that the stipulation will take effect, so far as that part of the act which was ratified is concerned, because it becomes effective for something in which the stipulator is interested. For even if the principal himself should ratify the transaction in part, the stipulation will not become operative, except in part, as it does so only with reference to that in which the plaintiff has an interest. Hence, proceedings can be instituted several times under this stipulation, according to the interest of the plaintiff: because he brings the action; because of his expense; because of the persons he represents; and because, when judgment is rendered against him, he must pay. For it may happen under a stipulation for the prevention of threatened injury that the stipulator may bring several actions; as it is provided in the bond that, “If anything falls, is divided, is excavated, or is constructed, liability will result.” Suppose, then, that damage is repeatedly caused. There is no doubt that proceedings can be instituted, for if an action can only be brought when all possible injury has been sustained, it almost inevitably follows that this cannot be done before the time prescribed by the stipulation has passed, within which security was furnished for any immediate damage which might be caused. This is not correct.
19Paulus, On Sabinus, Book XIII. Whatever may be the interest of the stipulator is included in the agreement by which an agent provides that his principal will ratify his act. The same rule applies to all the clauses having reference to fraud.
20Ulpianus, Disputations, Book II. Where rights of action are derived from the suits which an attorney brings, as well as from the stipulations that he desires to introduce, he must give security for ratification. Therefore, when an attorney introduces a stipulation for double damages, he is obliged to furnish security that it will be ratified. If, however, a stipulation against threatened injury is inserted by an agent, he must give security that his principal will ratify it.
21The Same, Opinions, Book I. It is proper that security for ratification by the principal should not be required in cases where someone sets forth in a petition presented to the Emperor that he has appointed an agent to act for him in this matter. If, however, security for the payment of the judgment is demanded of the agent, it will be necessary for him to obey the manifest rule of law.
22Julianus, Digest, Book LVI. When an agent, without a judgment, collects money which is not due, and his principal does not ratify the payment, but institutes proceedings to collect the same money, the sureties will be liable; and the right to the personal action under which the agent would have been responsible if the stipulation had not been interposed will be extinguished. For whenever money is paid to an agent, and his principal does not ratify the payment, I think that the effect is that the right of personal action for recovery will be extinguished, and that the sole proceeding to which he who paid the money which was not due will be entitled, against the agent, will be the one based on the stipulation. In addition to this, the sureties must pay the expenses incurred in the suit. If, however, the principal should ratify the payment, the sureties will be released; but the same money can be recovered from the principal by means of a personal action. 1Where an agent collects money due to his principal without bringing suit, the same rule applies, with the difference that if the principal has ratified the transaction he cannot afterwards make another demand for the money. 2If an agent should collect a sum of money which was not due, by having an execution issued on the judgment, it can be said that whether the principal ratifies his act or not, the sureties will not be liable, either for the reason that there was nothing that the principal could ratify, or because the stipulator had no interest in having the ratification made; hence he who pays the agent suffers an injury. It is, however, better to hold that if the principal does not ratify the transaction the sureties will be liable. 3Where, however, an agent who had not been directed to do so institutes judicial proceedings to collect money which is due, the better opinion is that the sureties will be liable for the entire amount, if the principal does not ratify the transaction. 4Ad Dig. 46,8,22,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 18.But when the agent makes a proper demand, he should not be compelled to guarantee that the principal will not profit by the injustice of the judge; for sureties are never liable on account of any damage caused by the wrongful act of a court. In this case it is better to hold that the sureties are only liable for the costs of the suit. 5Marcellus: If the principal does not ratify the transaction, but loses the case after it has been brought, nothing but the costs should be included in the agreement for ratification. 6Julianus: If, without an order of court, legacies should be paid to the agent of a person who is already dead, the stipulation will become operative unless the heir ratifies the transaction, that is, if the legacies were due; for then there is no doubt that it is to the interest of the stipulator to have the payment ratified by the heir, so that he may not be compelled to pay the same legacies twice. 7If, in a stipulation for ratification, it was expressly stated that Lucius Titius would ratify the transaction, as it was clearly the intention that the ratification of the heir and the other parties in interest should be omitted, it is difficult to hold that the clause having reference to fraud becomes operative. When the above-mentioned persons are omitted through inadvertence, an action under the clause having reference to fraud will undoubtedly lie. 8Where an attorney brings suit with reference to an estate, and afterwards his constituent demands a tract of land forming part of said estate, the stipulation for ratification becomes operative, because, if he was a genuine attorney, an exception on the ground of res judicata would act as a bar to his constituent. The stipulation for ratification, however, generally becomes effective in cases in which, if the genuine attorney should proceed, the action, if brought by the constituent, will become of no avail, either by operation of law or through pleading an exception. 9When anyone, in the name of a father, brings an action for injury sustained, because his son was struck or beaten, he will be compelled also to include the son in the stipulation; and especially as the father may happen to die before being informed that his attorney had instituted proceedings; and thus the right of action for injury will return to the son. 10If an injury is inflicted upon a grandson, and the attorney for the grandfather, on this account, brings suit for injury sustained, not only the son, but also the grandson, must be included in the stipulation. For what will prevent both the father and the son from dying before they knew that the attorney has brought the action? In this case it would be just for the sureties not to be held liable, if the grandson should bring suit for injury sustained.
23The Same, On Minicius, Book V. An agent, when bringing an action to collect a sum of money, gave security that no more would be demanded. If, after judgment has been rendered, another person should appear, who claimed the same money in the capacity of agent, as he who made the second demand was not really an agent, and for this reason could be excluded by an exception on the ground that he had no authority, the question arises whether the sureties of the first agent are liable. Julianus is of the opinion that they are not liable. For it was provided in the stipulation that he who has the right to bring an action to demand or to collect the debt will not do so; and that all those having an interest in the matter will ratify the transaction. He, however, who is not an agent, is not understood to have any right of action, or to be entitled to make any claim whatever.
24Africanus, Questions, Book V. It is necessary for the possession of property, if acknowledged by anyone but the heir, to be ratified within the specified time, in order that it may be demanded. Therefore, it cannot be ratified after the one hundredth day has passed. 1If, however, he who made the demand should die, or become insane, let us see whether it can be ratified or not, for, generally speaking, it should be ratified; just as where, in this instance, ratification takes place at a time when the person claiming possession cannot be benefited by it. The result of this is that, even if the agent should repent of having made the demand, ratification could not occur; which is absurd. Therefore, it is better to say that neither of these causes interferes with ratification.
25The Same, Questions, Book VI. A father, in the absence of his daughter, demanded a dowry which had been given by him, and furnished security that she would ratify the transaction, but she died before doing so. It was denied that the stipulation took effect; because although it was true that she had not ratified his act, her husband, nevertheless, had no interest in having the dowry transferred to him, for the entire dowry should be returned to the father after the death of his daughter. 1An agent, having collected money from a debtor who could have been released by lapse of time, gave security that his principal would ratify his act; and then, after the debtor had been released by prescription, the principal ratified it. It was held that the debtor, after having once been released, could bring an action against the agent; and the proof of this is, that if no stipulation was interposed, a personal action for recovery could be brought against the agent; but the stipulation had been introduced instead of such an action.
No translation given.