Ratam rem haberi et de ratihabitione
(Concerning Security for Ratification.)
1 Papinianus libro vicensimo octavo quaestionum. Cum quis de rato stipularetur: quamvis non idem, sed alius a domino conveniretur, qui conveniri non posset, si ratum habuisset, committi stipulationem placuit, veluti si cum fideiussor aut alter ex reis promittendi, qui socius est, convenitur.
1 Papinianus, 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.
2 Idem libro undecimo responsorum. In stipulatione de rato habendo non est cogitandum rei promittendi vel stipulandi compendium, sed quid interfuerit eius qui stipulatus est ratum haberi quod gestum est.
2 The Same, Opinions, Book XI. In the agreement for ratification, the property of the party promising or stipulating should not be considered, but merely the interest of the stipulator in having the transaction ratified.
3 Idem libro duodecimo responsorum. Cum minor viginti quinque annis creditor pecuniam reciperare vellet, interpositus procurator debitori de rato habendo cavit: restitutione in integrum data neque indebiti condictionem neque stipulationem committi constabat. idemque eveniret, si falsi procuratoris actum minor annis ratum habuerit. et ideo ita cavendum erit praecedente mandato: ‘si ille in integrum restitutus fuerit heresve eius aut is, ad quem ea res, qua de agitur, pertinebit, quanti ea res erit, tantam pecuniam dari’. mandato vero non interveniente vulgaribus verbis de rato habendo haec quoque prudentius inter consentientes adstruentur: alioquin si non conveniat nec creditor minus consentiat, actionem dari oportebit. 1Falsus procurator de rato habendo cavit atque ita dominus a sententia iudicis procuratore victo provocavit: stipulationis defecisse condicionem apparuit, cum ad auxilium commune superatus confugisset. quod si dominus, qui ratum non habuit, pecuniam exegerit, stipulatio de rato committetur in eam pecuniam, quam dominus accepit, quamvis nihil procurator acceperit.
3 The 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.
4 Scaevola libro tertio decimo quaestionum. Procurator quinquaginta petit: si dominus centum petat, tenebuntur fideiussores, qui de ratihabitione caverunt, in quinquaginta et quanti interfuit differri quinquaginta actionem.
4 Scævola, Questions, Book XIII. An agent brought suit for fifty aurei. If his principal should bring suit for a hundred, the sureties who bound themselves for ratification would be liable for fifty, and for the interest which the debtor had in having the action for the fifty dismissed.
5 Idem libro quinto responsorum. Respondit non tantum verbis ratum haberi posse, sed etiam actu: denique si eam litem, quam procurator inchoasset, dominus comprobans persequeretur, non esse commissam stipulationem.
5 The Same, Opinions, Book V. Ratification takes place not only by words but also by acts: hence if the principal, approving the act of his attorney, proceeds with the case which the latter began, the stipulation will not become operative.
6 Hermogenianus libro primo iuris epitomarum. Tutore suspecto postulato defensor si velit respondere, cautionem ratam rem dominum habiturum cavere compellendus est.
6 Hermogenianus, 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.
7 Paulus libro tertio sententiarum. Si is, cui ignoranti petita est bonorum possessio, decesserit, heres eius intra tempora petitionis ratam eam habere non potest.
7 Paulus, Opinions, Book III. If a person who is not aware of the fact that suit has been brought for possession of his property should die, his heir, while the proceeding is pending, cannot ratify it.
8 Venuleius libro quinto decimo stipulationum. Procurator ad exhibendum egit et adversarius absolutus est, quia non possidebat: at cum possessionem eiusdem rei nanctus esset, agit cum eo dominus ad exhibendum. Sabinus ait fideiussores non teneri, quoniam haec alia res sit: nam et si dominus egisset, mox, absoluto adversario quia non possideret, ex integro ageret, non obstaturam rei iudicatae exceptionem. 1Si procurator a debitore pecuniam exegerit et satisdederit dominum ratam rem habere, mox dominus de eadem pecunia egit et litem amiserit, committi stipulationem: et, si procurator eandem pecuniam domino sine iudice solverit, condicturum. sed cum debitor ex stipulatu agere coeperit, potest dici dominum, si defensionem procuratoris suscipiat, non inutiliter doli mali exceptione adversus debitorem uti, quia naturale debitum manet. 2Si quis a procuratore status controversiam patiatur, satis accipere debet a procuratore, ne impune saepius pro suo statu conveniretur et, si dominus venientesque ab eo personae ratum non habuerunt, quod procurator eum in servitutem petierit vel adversus procuratorem ex servitute in libertatem petitus fuerit, quanti ea res est, ei praestetur, scilicet cum de libertate eius constiterit, id est quanti interfuerit eius de statu suo rursus non periclitari et propter impendia, quae in litem fecerit. sed Labeo certam summam comprehendendam existimabat, quia aestimatio libertatis ad infinitum extenderetur. ex quo autem dominus ratum non habuerit, committi videtur stipulatio, sed non ante ex ea agi poterit, quam de libertate iudicatum fuerit, quia, si servus sit iudicatus, inutilis fit stipulatio, cum et, si qua sit actio, eam domino adquisisse intellegitur.
8 Venuleius, 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.
9 Ulpianus libro nono ad edictum. Actor a tutore datus omnimodo cavet: actor civitatis nec ipse cavet, nec magister universitatis, nec curator bonis consensu creditorum datus.
9 Ulpianus, 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.
10 Idem libro octagensimo ad edictum. Interdum ex conventione stipulatio ratam rem interponi solet, ut puta si quid procurator aut vendat aut locet aut si ei solvatur.
10 The 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:
11 Hermogenianus libro sexto iuris epitomarum. Vel paciscitur vel quodlibet aliud nomine absentis gerit:
11 Hermogenianus, 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.
12 Ulpianus libro octagensimo ad edictum. quo enim tutiore loco sit, qui contrahit de rato solet stipulari. 1Rem haberi ratam hoc est comprobare adgnoscereque quod actum est a falso procuratore. 2Iulianus ait interesse, quando dominus ratam habere deberet solutionem in procuratorem factam, an tunc demum, cum primum certior factus esset. hoc autem ἐν πλάτει accipiendum et cum quodam spatio temporis nec minimo nec maximo et quod magis intellectu percipi, quam elocutione exprimi possit. quid ergo, si, quod primo ratum non habuit, postea habebit ratum? nihilo magis proficere ad impediendam actionem suam et ob id, quod primo non habuit ratum, actionem salvam habere ait. ideoque si, quod procuratori fuerat solutum, exegerit, agi perinde ex ea stipulatione poterit, ac si ratum habere se postea non dixisset. sed ego puto exceptionem doli mali locum habituram. 3Sive quis petat sive compensatione utatur, committitur statim ratam rem dominum habiturum stipulatio: nam qualiterqualiter quis eundem actum retractet, qui a procuratore actus est, committi stipulationem oportet.
12 Ulpianus, 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.
13 Paulus libro septuagensimo sexto ad edictum. Si commissa est stipulatio ratam rem dominum habiturum, in tantum competit, in quantum mea interfuit, id est quantum mihi abest quantumque lucrari potui. 1Si sine iudice procuratori legatum solvatur, caveri debere Pomponius ait.
13 Paulus, 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.
14 Idem libro tertio ad Plautium. Si quis uni ex reis promiserit rem ratam dominum habiturum aut amplius eam non peti, dicendum est stipulationem committi, si ab eo petatur, qui eiusdem obligationis socius est.
14 The 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.
15 Idem libro quarto decimo ad Plautium. Amplius non peti verbum Labeo ita accipiebat, si iudicio petitum esset. si autem in ius eum vocaverit et satis iudicio sistendi causa acceperit, iudicium tamen coeptum non fuerit, ego puto non committi stipulationem amplius non peti: hic enim non petit, sed petere vult. si vero soluta esset pecunia, licet sine iudicio, committitur stipulatio: nam et si quis adversus petentem compensatione deductioneve usus sit, recte dictum est petisse eum videri et stipulationem committi amplius non peti. nam et heres, qui damnatus non petere, si horum quicquam fecisset, ex testamento tenetur.
15 The 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.
16 Pomponius libro tertio ex Plautio. Si indebitum procuratori solutum sit, agi statim ex hac stipulatione adversus procuratorem potest, ut ratum habeat dominus, ut possit dinosci, utrumne domino condici debeat id quod indebitum solutum sit, si is ratum habeat, an vero procuratori condicendum sit, si dominus ratum non habeat. 1Si procurator fundum petisset et cavisset, uti adsolet, ratam rem dominum habiturum, deinde dominus postea eundem fundum vendidisset eumque emptor peteret, stipulationem ratam rem haberi committi Iulianus scribit.
16 Pomponius, 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.
17 Marcellus libro vicensimo primo digestorum. Cum debitore decem creditoris nomine Titius egit: partem petitionis ratam habuit dominus. dicendum est obligationis partem consumptam, quemadmodum si decem stipulatus esset aut exegisset creditorque non totum, sed partem gestae rei comprobasset. idcirco si ex stipulatu ‘decem aut Stichum, utrum ego voluero’ absente me Titius domino quinque petisset, insecuta ratihabitione recte actum videri.
17 Marcellus, 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.
18 Pomponius libro vicensimo sexto ad Sabinum. Si procurator ratam rem dominum heredemve eius habiturum caverit et unus ex heredibus domini ratum habeat, alter non habeat, sine dubio committetur stipulatio pro ea parte, pro qua ratum non habebitur, quia in id committitur, quod stipulatoris intersit. nam et si ipse dominus pro parte ratum habuerit, pro parte non habuerit, non ultra quam in partem committetur stipulatio, quia in id committitur, quod intersit agentis. et ideo saepius ex ea stipulatione agi potest, prout intersit agentis, quod litigat, quod consumit, quod advocat, quod damnatus solvit, sicut in stipulatione damni infecti accidere potest, ut is qui stipulatus sit subinde agat: cavet enim ‘si quid ibi ruet scindetur fodietur aedificabitur’. finge ergo subinde damnum dari: non erit dubium, quin agere possit: nam si toto damno computato tunc agendum est, propemodum non ante aget, quam dies stipulationis praeterierit, intra quem si damnum datum sit, stipulatione cautum erit: quod verum non est.
18 Pomponius, 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.
19 Paulus libro tertio decimo ad Sabinum. In stipulatione, qua procurator cavet ratam rem dominum habiturum, id continetur, quod intersit stipulatoris. idemque iuris est in clausulis omnibus de dolo malo.
19 Paulus, 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.
20 Ulpianus libro primo disputationum. Non solum in actionibus, quas procurator intendit, verum in stipulationibus quoque, quas interponi desiderat, si vicem repraesentant actionum, cavere eum de rato oportet. quare si duplae stipulationem procurator interponat, de rato cavere debet. sed et si damni infecti stipulatio a procuratore interponatur, de rato debet procurator cavere.
20 Ulpianus, 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.
21 Idem libro primo opinionum. Ne satisdatio ratam rem dominum habiturum exigatur in his quae nomine eius ageret, qui eum se fecisse procuratorem libello principi dato professus est, prodest. quod si iudicatum solvi satis ab eo procuratore postuletur, necesse est, ut iuri manifesto pareatur.
21 The 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.
22 Iulianus libro quinquagensimo sexto digestorum. Si sine iudice non debitam pecuniam exegerit procurator et dominus ratam solutionem non habuerit, sed eandem pecuniam petere instituerit: fideiussores tenentur et condictio, qua procurator teneretur, si stipulatio interposita non fuisset, peremitur. quotiens enim procuratori pecunia solvitur et dominus eam solutionem ratam non habet, existimo id agi, ut condictio perematur et sola actio ei, qui indebitum solvit, adversus procuratorem ex stipulatu competat. hoc amplius praestant fideiussores impensas, quae in iudicium factae fuissent. quod si dominus ratam habuisset, fideiussores quidem liberantur, sed ab ipso domino eadem pecunia per condictionem peti potest. 1Quod si procurator debitam domino pecuniam sine iudice exegisset, idem iuris est, hoc secus, quod, si dominus ratam rem habuisset, nulla eius pecuniae repetitio futura est. 2Quod si procurator per iudicem non debitam pecuniam exegisset, dici potest, sive ratum dominus habuisset sive non habuisset, fideiussores non teneri, vel quia nulla res esset, quam dominus ratam habere possit, vel quia nihil stipulatoris interest ratum haberi: adficietur ergo iniuria is, qui procuratori solvit. magis tamen est, ut, si dominus ratum non habuerit, fideiussores teneantur. 3Quod si debitam pecuniam procurator per iudicem, cui nihil mandatum fuerit, petierit, magis est, ut in solidum fideiussores teneantur, si dominus ratum non habuerit. 4Cum autem procurator recte petit, dominus perperam, non debet procurator praestare, ne iniuria iudicis dominus aliquid consequatur: numquam enim propter iniuriam iudicis fideiussores obligantur. verius tamen est hoc casu fideiussores non nisi in impensas litis teneri. 5Marcellus: si dominus ratam rem non habuerit, sed lite mota rem amiserit, nihil praeter impendia in stipulationem ratam rem deducitur. 6Iulianus. Si procuratori eius, qui mortuus erat, sine iudice soluta fuerint legata, stipulatio committetur, nisi heres ratum habuerit, utique si debita fuerint: tunc enim non dubie interest stipulatoris ratam solutionem ab herede haberi, ne bis eadem praestet. 7Si in stipulationem ratam rem haberi hactenus comprehensum fuerit ‘Lucium Titium ratum habiturum?’, cum id aperte ageretur, ut heredis ceterorumque personae, ad quos ea res pertinet, omitterentur, difficile est existimari doli clausulam committi. sane cum per imprudentiam hae personae omittantur, actio ex doli clausula competit. 8Si procurator iudicium de hereditate ediderit, deinde dominus fundum ex ea hereditate petierit, stipulatio ratam rem haberi committetur, quia, si verus procurator fuisset, exceptio rei iudicatae dominum summoveret. plerumque autem stipulatio ratam rem haberi his casibus committetur, quibus, si verus procurator egisset, domino aut ipso iure aut propter exceptionem actio inutilis esset. 9Qui patris nomine iniuriarum agit ob eam rem, quod filius eius verberatus pulsatusve sit, in stipulatione cogendus est filii quoque personam comprehendere, praesertim cum fieri possit, ut pater ante decedat, quam sciret procuratorem suum egisse, et ita iniuriarum actio redeat ad filium. 10Sed et si nepoti iniuria facta fuerit et procurator avi propter hanc causam iniuriarum aget, non solum filii, sed etiam nepotis persona comprehendenda erit in stipulatione: quid enim prohibet et patrem et filium, antequam scirent procuratorem egisse, decedere? quo casu iniquum est fideiussores non teneri nepote iniuriarum agente.
22 Julianus, 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. 4But 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.
23 Idem libro quinto ex Minicio. Procurator cum peteret pecuniam, satisdedit amplius non peti: post iudicium acceptum extitit, qui et ipse procuratorio nomine eandem pecuniam peteret: quaesitum est, cum is, qui postea peteret, procurator non esset et propter hoc exceptionibus procuratoriis excludi posset, num fideiussores prioris procuratoris tenerentur. Iulianus respondit: verius est non obligari fideiussores: nam in stipulatione cavetur non petiturum eum, cuius de ea re actio petitio persecutio sit, et ratum habituros omnes, ad quos ea res pertinebit: hic autem, qui procurator non est, nec actionem nec petitionem habere intellegendus est.
23 The 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.
24 Africanus libro quinto quaestionum. Bonorum possessionem ab alio adgnitam ratam haberi oportere eo tempore, quo adhuc in ea causa sit, ut peti possit: itaque post centensimum diem rata haberi non potest. 1An autem et si mortuus fuisset qui petisset vel furere coeperit, ratum haberi possit, videamus: nam si in universum perinde haberi debet, ac si tunc, cum ratum habeat, per eum bonorum possessionem petat, frustra his casibus ratum habetur. sed illud consequens futurum etiam si paeniteat illum petisse, ratum haberi non posse, quod utique sit absurdum. rectius itaque dicitur neutram eorum causam impedire ratihabitionem.
24 Africanus, 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.
25 Idem libro sexto quaestionum. Pater dotem a se datam absente filia petit et ratam rem habituram eam cavit: ea prius quam ratum haberet, mortua est. negavit committi stipulationem, quia et si verum sit ratum eam non habuisse, nihil tamen mariti intersit dotem restitui, cum patri etiam mortua filia salva esse dos debeat. 1Procurator cum ab eo aes alienum exegerat, qui tempore liberaretur, ratam rem dominum habiturum cavit: deinde post tempus liberato iam debitore dominus ratam rem habet. posse debitorem agere cum procuratore existimavit, cum iam debitor liberatus sit: argumentum rei, quod, si nulla stipulatio interposita sit, condictio locum adversus procuratorem habitura sit: in locum autem condictionis interponi stipulationem.
25 The 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.
26 ............ Si indebitum procurator petit litigatumque de eo est tamquam de debito, stipulatio interposita committitur, cum postea is, cuius nomine procurator egit, id petierit.
No translation given.