De pollicitationibus
(Concerning promises.)
1 Ulpianus libro singulari de officio curatoris rei publicae. Si pollicitus quis fuerit rei publicae opus se facturum vel pecuniam daturum, in usuras non convenietur: sed si moram coeperit facere, usurae accedunt, ut imperator noster cum divo patre suo rescripsit. 1Non semper autem obligari eum, qui pollicitus est, sciendum est. si quidem ob honorem promiserit decretum sibi vel decernendum vel ob aliam iustam causam, tenebitur ex pollicitatione: sin vero sine causa promiserit, non erit obligatus. et ita multis constitutionibus et veteribus et novis continetur. 2Item si sine causa promiserit, coeperit tamen facere, obligatus est qui coepit. 3Coepisse sic accipimus, si fundamenta iecit vel locum purgavit. sed et si locus illi petenti destinatus est, magis est, ut coepisse videatur. item si apparatum sive impensam in publico posuit. 4Sed si non ipse coepit, sed cum certam pecuniam promisisset ad opus rei publicae contemplatione pecuniae coepit opus facere: tenebitur quasi coepto opere. 5Denique cum columnas quidam promisisset, imperator noster cum divo patre suo ita rescripsit: ‘Qui non ex causa pecuniam rei publicae pollicentur, liberalitatem perficere non coguntur. sed si columnas Citiensibus promisisti et opus ea ratione sumptibus civitatis vel privatorum inchoatum est, deseri quod gestum est non oportet’. 6Si quis opus quod perfecit adsignavit, deinde id fortuito casu aliquid passum sit, periculum ad eum qui fecit non pertinere imperator noster rescripsit.
1 Ulpianus, On the Duties of the Chief Magistrate of a City. If anyone should promise to construct a public work, or donate money for that purpose, he cannot be sued for interest. If, however, he delays, interest will accrue, as our Emperor with his Divine Father stated in a Rescript. 1It must be noted that anyone who makes a promise is not always obliged to carry it into effect. Where, however, he promises in consideration of an honor already granted to him by a decree, or which is to be granted hereafter, or for some other good reason, he will be bound by his promise. But if he made the promise without any cause, he will not be liable, as is stated in many Constitutions both old and new. 2Likewise, when anyone makes a promise without any consideration, and begins to carry it out, he will be liable. 3We understand a person to begin to carry out his promise in the case of the construction of a building, where he lays the foundation, or clears the ground. Where, however, the land has been transferred to him for this purpose at his request, the better opinion is that he should be held to have begun the work. The same rule will apply if he has made preparations, or spent money in a public place. 4If, however, he himself did not begin the work, but promised a certain sum of money for its construction, he commences the undertaking by the payment of the money, and he will be liable just as if the work had been begun. 5Finally, when anyone promises columns for a public work, our Emperor, with his Divine Father, made the following statement in a Rescript: “Anyone who promises a sum of money to the State without any reason is not compelled to perfect his liberality. Where, however, you promised some columns to the people of Citium, and on this account, the work was begun at the expense of the city, or of private persons, what has been done cannot be abandoned.” 6Our Emperor stated in a Rescript that when anyone entrusts another to complete a work, and any damage then results to it through accident, the person who constructed it will be responsible.
2 Idem libro primo disputationum. Si quis rem aliquam voverit, voto obligatur. quae res personam voventis, non rem quae vovetur obligat. res enim, quae vovetur, soluta quidem liberat vota, ipsa vero sacra non efficitur. 1Voto autem patres familiarum obligantur puberes sui iuris: filius enim familias vel servus sine patris dominive auctoritate voto non obligantur. 2Si decimam quis bonorum vovit, decima non prius esse in bonis desinit, quam fuerit separata. et si forte qui decimam vovit decesserit ante sepositionem, heres ipsius hereditario nomine decimae obstrictus est: voti enim obligationem ad heredem transire constat.
2 The Same, Disputations, Book I. Where a person vows anything, he is bound by his vow, but the obligation attaches to him who makes the vow, and not to the property; for where anything is vowed and delivered, it releases the person, but the property does not become sacred. 1Sons who have arrived at puberty, and are their own masters, are bound by the vows of their father, for a son under paternal control or a slave cannot bind himself by a vow, without the authority of his father or his master. 2If anyone should vow the tenth of his property, the tenth will not cease to belong to his estate until it has been separated from it; and if the person who vowed the tenth should die before the separation takes place, his heir will be liable for the tenth in the name of the estate. For it is established that an obligation of this kind passes to the heir.
3 Idem libro quarto disputationum. Pactum est duorum consensus atque conventio, pollicitatio vero offerentis solius promissum. et ideo illud est constitutum, ut, si ob honorem pollicitatio fuerit facta, quasi debitum exigatur. sed et coeptum opus, licet non ob honorem promissum, perficere promissor eo cogetur, et est constitutum. 1Si quis quam ex pollicitatione tradiderat rem municipibus vindicare velit, repellendus est a petitione: aequissimum est enim huiusmodi voluntates in civitates collatas paenitentia non revocari. sed et si desierint municipes possidere, dicendum erit actionem eis concedendam.
3 The Same, Disputations, Book IV. An agreement arises from the consent of two persons, in the same manner as a contract. A promise, however, only requires the consent of the individual making the offer; and therefore it has been established that if a promise is made in consideration of some honor to be conferred, it can be collected as a debt. When, however, the work has been begun, it has been decided that the promisor will be compelled to complete it, even if he did not promise it in consideration of some honor to be conferred. 1If anyone who has delivered property to a city in compliance with his promise desires to reclaim it, his request should be barred; for it is perfectly just that voluntary gifts of this kind bestowed upon cities should not be revoked by merely changing one’s mind. Where, however, a municipality has ceased to possess property obtained under such circumstances, an action should be granted to it.
4 Marcianus libro tertio institutionum. Propter incendium vel terrae motum vel aliquam ruinam, quae rei publicae contingit, si quis promiserit, tenetur.
4 Marcianus, Institutes, Book III. If anyone should make a promise on account of loss by fire, or an earthquake, or any other damage sustained by a city, he will be liable.
5 Ulpianus libro primo responsorum. Charidemo respondit ex epistula, quam muneris edendi gratia absens quis emisit, compelli eum ad editionem non posse.
5 Ulpianus, Opinions, Book I. Answered Charidemus as follows: “Anyone who, while absent, promises by letter that something shall be done for a city, will be compelled to comply with his promise.”
6 Idem libro quinto de officio proconsulis. Totiens locum habet deminutio pollicitationis in persona heredis, quotiens non est pollicitatio ob honorem facta. ceterum si ob honorem facta sit, aeris alieni loco habetur et in heredum persona non minuitur. 1Si quis pecuniam ob honorem promiserit coeperitque solvere, eum debere quasi coepto opere imperator noster Antoninus rescripsit. 2Non tantum masculos, sed etiam feminas, si quid ob honores pollicitatae sunt, debere implere sciendum est: et ita rescripto imperatoris nostri et divi patris eius continetur. 3Si cui res publica necessitatem imposuerit statuarum principi ponendarum, qui non promisit, non esse ei necesse obtemperare rescriptis imperatoris nostri et divi patris eius continetur.
6 The Same, On the Duties of Proconsul, Book V. Whenever the value of a promise is diminished on account of an heir, this can only occur where it was not made in consideration of an honor to be bestowed. Where, however, it is made in consideration of some honor, it is deemed to be a debt, and is not diminished, so far as the heir, personally, is concerned. 1If anyone promises a sum of money in consideration of the bestowal of an honor, and begins to pay it, Our Emperor Antoninus stated in a Rescript that he owed the entire amount just as if the work had been begun. 2It must be remembered that not only males, but also females, must fulfill their promises when they agree to give or do anything in consideration of honors to be conferred. This is included in the Rescript of Our Emperor and his Divine Father. 3If the City should require anyone who has not promised to do so to erect statues of the Emperor in some public place, he will not be compelled to obey, as is stated in a Rescript of Our Emperor and his Divine Father.
7 Paulus libro primo de officio proconsulis. Ob casum, quem civitas passa est, si quis promiserit se quid facturum: etsi non inchoaverit, omnimodo tenetur, ut divus Severus Dioni rescripsit.
7 Paulus, On the Duties of Proconsul, Book I. Where anyone has promised to do something for a city on account of some accident which has happened to it, the Divine Severus stated in a Rescript to Dio that even if he did not begin it, he would still be liable.
8 Ulpianus libro tertio de officio consulis. De pollicitationibus in civitatem factis iudicum cognitionem esse divi fratres Flavio Celso in haec verba rescripserunt: ‘Probe faciet Statius Rufinus, si opus proscaeni, quod se Gabinis exstructurum promisit, quod tandem adgressus fuerat, perficiat. nam etsi adversa fortuna usus in triennio a praefecto urbis relegatus esset, tamen gratiam muneris, quod sponte optulit, minuere non debet, cum et absens per amicum perficere opus istud possit. quod si detrectat, actores constituti, qui legitime pro civitate agere possint, nomine publico adire adversus eum iudices poterunt: qui cum primum potuerint, priusquam in exilium proficiscatur, cognoscent et, si opus perfici ab eo debere constituerint, oboedire eum rei publicae ob hanc causam iubebunt, aut prohibebunt distrahi fundum, quem in territorio Gabiniorum habet’.
8 The Same, On the Duties of Proconsul, Book III. The Divine Brothers made the following statement in a Rescript with reference to promises made to cities of which judges should take cognizance: “Statius Rufinus promised that he would finish a theatre in the City of Gabinia, which he already had begun. For although he had suffered misfortune, and had been relegated by the Urban Prefect for the term of three years; still he should not diminish the favor of the gift which he had voluntarily offered, as, even though he was absent, the work could be completed by a friend. If, however, he should fail to do so, the regular authorities who had the legal right to act in behalf of the city could bring suit against him in its name. The judges must examine the case as soon as possible, before Statius Rufinus went into exile, and if they should determine that the work ought to be completed by him, they shall order him to fulfil the promise made to the city, or forbid the land which he has in the territory of the City of Gabinia to be sold.”
9 Modestinus libro quarto differentiarum. Ex pollicitatione, quam quis ob honorem apud rem publicam fecit, ipsum quidem omnimodo in solidum teneri: heredem vero eius ob honorem quidem facta promissione in solidum, ob id vero, quod opus promissum coeptum est, si bona liberalitati solvendo non fuerint, extraneum heredem in quintam partem patrimonii defuncti, liberos in decimam teneri divi Severus et Antoninus rescripserunt. sed et ipsum donatorem pauperem factum ex promissione operis coepti quintam partem patrimonii sui debere divus Pius constituit.
9 Modestinus, Differences, Book IV. When anyone has made a promise to a city, in consideration of some honor to be conferred upon him, he will be liable under all circumstances for the entire amount, and his heir as well, on account of the promise which was made. This, indeed, applies to a work begun on account of a promise, and where the property of the party in question was not sufficient to comply with it, the Divine Severus and Antoninus stated in a Rescript that, in this instance, a foreign heir would be liable to a fifth part of the estate of the deceased, or his children to one-tenth. The Divine Pius, however, decided that where the donor was impoverished by the promise which he had made, and the work had been begun, a fifth part of his property would be liable.
10 Idem libro primo responsorum. Septicia certamen patriae suae pollicendo sub hac condicione pollicita est, uti sors apud eam remaneat et ipsa usuras semissales ad praemia certantium resolvat, in haec verba: ‘Φιλοτιμοῦμαι καὶ καθιερῶ ἀγῶνα τετραετηρικὸν ἀπὸ μυριάδων τριῶν, τὸ τοῦ κεφαλαίου αὐτὴ κατέχουσα ἀργύριον καὶ ἀσφαλιζομένη παρὰ τοῖς δεκαπρώτοις ἀξιοχρέως ἐπὶ τῷ τελεῖν με τὸν ἐξ ἔθους τριῶν μυριάδων τόκον, ἀγωνοθετοῦντος καὶ προκαθεζομένου τοῦ ἀνδρός μου, ἐπ’ αὖθις δὲ τῶν ἐξ ἐμοῦ γεννηθησομένων τέκνων. χωρήσει δὲ ὁ τόκος εἰς τὰ ἆθλα τῶν θυμελικῶν, καθὼς ἂν ἐφ’ ἑκάστου ἀθλήματος ἡ βουλὴ ὁρίσῃ’. quaero, an possunt iniuriam pati filii Septiciae, quo minus ipsi praesiderent certamini secundum verba condicionemque pollicitationis. Herennius Modestinus respondit, quo casu certaminis editio licita est, formam pollicitationi datam servandam esse.
10 The Same, Opinions, Book I. Septicia promised a certain sum of money to her native city for the celebration of public games, under the condition that the principal should remain in her hands, and that she herself should give half of the interest as reward to the contestants, in the following terms: “I give and set apart thirty thousand aurei as principal to be devoted to the games every four years, I myself retaining the said amount in my hands, and furnishing security to the decurions to pay the interest, at the ordinary rate, on said principal of thirty thousand aurei; under the condition that the games shall be presided over by my future husband and the children who may be born to me. The said interest shall be expended in prizes to be awarded to the competitors whom the judges may decide to have excelled in each contest.” I ask whether the children of Septicia would suffer any injustice if they should not preside at these contests, in accordance with the terms and the condition of the promise. Herennius Modestinus answered that in case the institution of the public games was permitted, the condition imposed by the promise must be complied with.
11 Idem libro nono pandectarum. Si quis ob honorem vel sacerdotium pecuniam promiserit et antequam honorem vel magistratum ineat, decedet, non oportere heredes eius conveniri in pecuniam, quam is ob honorem vel magistratum promiserat, principalibus constitutionibus cavetur, nisi forte ab eo vel ab ipsa re publica eo vivo opus fuerit inchoatum.
11 The Same, Pandects, Book IX. When anyone promises a sum of money in consideration of obtaining a magisterial honor or a sacerdotal office, and, before he obtains the honor or enters upon the duties of the office, he dies, his heirs should not be sued for the money which he promised in consideration of the said honor or magistracy. This was provided by the Imperial Constitutions, unless, during his lifetime, the work had been begun either by the person himself, or by the city.
12 Idem libro undecimo pandectarum. In privatis operibus invitis his qui fecerunt statuas aliis ponere non possumus, ut rescripto divi Severi continetur. 1Cum quidam, ne honoribus fungeretur, opus promisisset: honores subire cogendum quam operis instructionem divus Antoninus rescripsit.
12 The $ame, Pandects, Book XI. It is stated in a Rescript of the Divine Severus that we cannot erect statues to others upon public works constructed by private individuals, against the consent of the latter. 1The Divine Antoninus stated in a Rescript that where anyone has promised a work in order to avoid performing the duties of an office, he can be compelled to perform its duties instead of constructing the work.
13 Papirius Iustus libro secundo de constitutionibus. Imperatores Antoninus et Verus Augusti rescripserunt opera exstruere debere eos, qui pro honore polliciti sunt, non pecunias pro his inferre cogi. 1Item rescripserunt condiciones donationibus adpositas, quae in rem publicam fiunt, ita demum ratas esse, si utilitatis publicae interest: quod si damnosae sint, observari non debere. et ideo non observandum, quod defunctus certa summa legata vetuit vectigal exerceri. esse enim tolerabilia, quae vetus consuetudo comprobat.
13 Papirius Justus, On the Constitutions, Book II. The Emperors Antoninus and Verus stated in a Rescript that those who had promised to construct public works in consideration of honors to be conferred could be compelled to construct them, but not to furnish the money for that purpose. 1They also stated in a Rescript that conditions imposed upon donations to be made to a city, should only be complied with when the public welfare demanded it, and that they should not be observed if they were injurious. Therefore, where a deceased person bequeathed a certain sum of money, and, in doing so, forbade the levy of a certain tax, this condition should not be observed, for what ancient custom has established is preferable.
14 Pomponius libro sexto epistularum et variarum lectionum. Si quis sui alienive honoris causa opus facturum se in aliqua civitate promiserit, ad perficiendum tam ipse quam heres eius ex constitutione divi Traiani obligatus est. sed si quis ob honorem opus facturum se civitate aliqua promiserit atque inchoaverit et priusquam perficeret, decesserit: heres eius extraneus quidem necesse habet aut perficere id aut partem quintam patrimonii relicti sibi ab eo, qui id opus facere instituerat, si ita mallet, civitati, in qua id opus fieri coeptum est, dare: is autem, qui ex numero liberorum est, si heres exstitit, non quintae partis, sed decimae concedendae necessitate adficitur. et haec divus Antoninus constituit.
14 Pomponius, Epistles and Various Passages, Book VI. When anyone, in consideration of an honor to be conferred upon him, or upon someone else, promises that he will construct a public work in a certain city, he, as well as his heir, will be bound by a Constitution of the Divine Trajan to complete it. If anyone, in consideration of an honor to be conferred, should promise that he will construct some work, and begins it and dies before completing it, and leaves a foreign heir, the latter will either be compelled to complete the work, or, if he prefers to do so, he can set aside the fifth part of the estate which was left to him, for the purpose of furnishing it, and transfer it to the city in which the work has been begun. Where, however, the heir is one of the children, he will be required to contribute, not the fifth, but the tenth part of the estate. This was decided by the Divine Antoninus.
15 Ulpianus libro singulari de officio curatoris rei publicae. Inter liberos nepotem quoque ex filia contineri divus Pius rescripsit.
15 Ulpianus, On the Duties of the Chief Magistrate of a City. The Divine Pius stated in a Rescript that a grandson by a daughter of the testator was also included among his children.