Africanus, Questions, Book VII. If it is agreed upon by the parties that another Prætor than the one who had jurisdiction of the case should hear it, and before applying to him one of them should change his mind, there is no doubt that he cannot be compelled to abide by an agreement of this kind.

Africanus, Questions, Book VII. You directed my son to buy you a tract of land, and when I heard of it I myself bought the land for you. I think it should be considered with what intention I made the purchase; for if I knew it to be on account of something which was necessary to you, and also it was your will that you would be glad to have the purchase, a right of action based on business transacted arises between us; as there would be if there had been no mandate of any kind, or if you would have ordered Titius to make the purchase, and I had made it because I could attend to the matter more conveniently. If, however, I made the purchase to prevent my son from being liable to an action on mandate, it is the better opinion that I could bring an action on mandate against you in his behalf, and you would be entitled to an action de peculio against me; because, even if Titius had executed a mandate, and, to prevent his being held liable on that account, I had made the purchase, I could bring an action against Titius on the ground of business transacted, and he could bring one against you, and you one against him, on mandate. The same rule applies if you ordered my son to be surety for you, and I become surety for you myself. 1If the suggestion is made that you have ordered Titius to become your surety, and for some reason he, having been prevented from doing so, I become your surety in order to release him from his promise, I will be entitled to an action based on business transacted.

Africanus, Questions, Book VII. For, whatever a slave does in a case of this kind, he is understood to do with the consent of his owner; and this will appear more clearly if the question arises with reference to an institorian action, or where a person over twenty-five years of age directed a minor to transact some business, and the latter was deceived while doing so.

Africanus, Questions, Book VII. The reason for this is that a public duty should not be a source of loss or profit to anyone.

Africanus, Questions, Book VII. Where anyone stipulates for a certain sum every year, as long as he, or the party who makes the promise, shall remain in Italy, and one or the other happens to be absent in the service of the State; it is the duty of the Prætor to grant an equitable action. We hold that the same rule applies where the stipulation is in the following words: “If a certain man should be at Rome for the next five years”; or “If he should not be at Rome, do you agree to pay a hundred aurei?”

The Same, Questions, Book VII. The question arose, if I stipulated with you for you to give me an usufruct for the next ten years, and you neglected to give it, and five years elapsed; what would be the law? Moreover, if I stipulated with you to give me the services of Stichus for the next ten years, and five years pass, as above stated, what then? The answer was that suit could properly be brought for both the usufruct and the services of the slave for the term that you permitted to elapse without giving them.

Africanus, Questions, Book VII. But where one joint-owner, on account of a slave held in common, has judgment rendered against him in an action De peculio for the entire amount of the indebtedness, and the property belonging to said peculium is lost while in his hands; still, an equitable action in partition for a recovery of a portion of the money will lie; for otherwise it would be unjust if the whole matter should cause loss to be incurred by the party who defended the action; since there ought to be an equal risk imposed upon both owners with reference to property included in peculium. For where anyone undertakes the defence of a slave at the request of his owner, he will be repaid everything which he expended in good faith, even though the peculium should subsequently be lost. This is the case where no negligence has been committed by either party; since if an action De peculio is brought against the owner, and he is prepared to surrender to the plaintiff the property included in the peculium, it is held he should be heard if proper cause be shown, of course, if he did this without malicious or fraudulent intent.

Africanus, Questions, Book VII. If he with whom you deposit property makes a deposit of the same with another, and the latter is guilty of fraud; he with whom you deposited the property will be liable for the bad faith of him with whom it was subsequently deposited, to the extent that he must assign his rights of action to him.

Africanus, Questions, Book VII. If you should sell me your right to the succession of Lucius Titius, and you afterwards become the heir of his debtor, you will be liable to an action on sale. 1This is much more simple in the case where a party becomes the heir of his creditor, and sells his right of succession to the estate.

Africanus, Questions, Book VII. A father, at the time that he gave a dowry to his daughter, agreed that if she should die leaving one or more children, the dowry should be returned to him, after deducting the third part of the same; or, after his death, that it should be given to one or the other of the children who were under his control. This was afterwards expressly stipulated. After the death of the father, the woman died during marriage, leaving children. The question arose whether the children could claim two-thirds of the dowry, in accordance with the stipulation. I answered that they could, for the effect of the stipulation was that if the woman should die during marriage, her dowry should be returned to her father, and the same rule applies as where a stipulation was entered into in the following terms: “If a ship comes from Asia, do you agree to pay me a certain sum of money, or, after my death pay it to Lucius Titius?” for if the ship should arrive after the death of the stipulator, the money will be due to my heir.

Africanus, Questions, Book VII. A woman promised a certain sum of money by way of dowry, and produced parties who stipulated that a portion of it should be paid to them, in case the marriage was dissolved. The woman died before any dowry had been given, after appointing her husband her heir, and he entered upon her estate, which proved to be unprofitable. He will, nevertheless, be liable to the parties with whom the stipulation was made, as, by entering upon the estate of the woman who was his debtor he is understood to have repaid himself; and it makes no difference, so far as he is concerned, that the estate was insolvent, since he is liable to the other creditors.

Ad Dig. 41,1,40Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.Africanus, Questions, Book VII. The question was raised, if a person whom a freeman was serving in good faith as a slave should die, and leave an heir who knew that the alleged slave was free, whether the heir could acquire any property by his agency. It cannot be said that he is a bona fide possessor, since, when he begins to have possession, he is aware that the man is free; because, if anyone should devise land to him and the heir knew that it had been devised, there is no doubt that the crops from the land do not become his; and there is much more reason for the application of this principle, if the testator had possession of the land in good faith, having bought it from one who was not the owner. The same rule must be observed with reference to the labor and agency of slaves; so that, whether they are ours or belong to strangers, and whether they have been bequeathed or manumitted by will, nothing will be acquired by them for the heirs, provided the latter were not ignorant of their status; for at the same time it must be admitted that, in the case where a bona fide possessor renders the crops, which he has used and which were derived from the land, his own, the profits of his labor or his property will also be acquired for him by the slave.

Africanus, Questions, Book VII. If your slave ejects you from land, which I gave you in pledge while it was in my possession, it is held that you continue to be in possession of the same, as you still retain possession by this same slave. 1If the tenant by whom the owner holds possession should die, it has been decided for the sake of public convenience that possession is retained and continued through the agency of the tenant. It should not be held that possession is immediately interrupted by the death of the latter, for this is not the case unless the owner neglects to take possession. A different opinion must be held, if the tenant voluntarily relinquishes possession. This, however, is only true where a stranger has not, in the meantime, been in possession, but it always remains as part of the estate of the tenant. 2I purchased your slave from Titius in good faith, and possessed him after he had been delivered, and then when I ascertained that he was yours, I concealed him, to prevent you from claiming him. It is held that, on his account, I should not be considered to have possessed him clandestinely during this time. For, on the other hand, if I should knowingly purchase your slave from someone who is not his owner, and should then retain clandestine possession of him, even after I notified you, I would not, for that reason, cease to have clandestine possession of the slave. 3If I clandestinely remove my own slave from a bona fide purchaser, it has been decided that I ought not to be considered to have clandestine possession of him, because the owner does not hold him under a precarious title, nor under a lease of his own property; and there are no other methods of acquiring clandestine possession.

Africanus, Questions, Book VII. It is usually said that he who thinks that he has bought something and did not do so cannot, as a purchaser, acquire it by usucaption; but this is only true to the extent that the purchaser must have no just cause for entertaining his erroneous opinion. For if a slave or an agent who has been directed to purchase the property should persuade his principal that he has done so, and deliver the property to him, the better opinion is that usucaption will take place.

Ad Dig. 44,7,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 10.The Same, Questions, Book VII. A stipulation was entered into with reference to money to be employed in commerce, and as is customary, a penalty was inserted therein for the purpose of indemnifying the person who furnished the money, if it should not be paid by the specified time. The latter demanded the money, and a part of it having been paid, he neglected to demand the remainder then, but, after the lapse of some time, he did demand it. A jurist, having been consulted, gave it as his opinion that the penalty could be collected for the time during which the debtor had not been notified to pay, and that this could even be done if he had not been notified at all; and that the stipulation would become inoperative only where the debtor was responsible for payment not having been made. Otherwise, it must be said that, if he who had begun to push the claim should cease to do so because he was prevented by illness, the penalty would not attach. Hence, a doubt may arise, if the debtor, having been notified to pay, should himself be in default, whether the penalty would not attach, even though he afterwards tendered the money. This may be said to be more equitable, for if an arbiter appointed to arrange a settlement should order the money to be paid by a certain time, and he whom he ordered to pay it is not in default, it is held that the penalty will not attach; and therefore, Servius very properly held, if the day when the money was to be paid was not included in the decision of the arbiter, a reasonable time should be held to have been granted. The same rule will apply where anything has been sold under the condition that, unless the price is paid by a certain time, the transaction will be void.

The Same, Questions, Book VII. The following stipulation was entered into: “If Titius should be made Consul, do you promise to pay ten sesterces annually, from to-day?” The condition was fulfilled after three years; may it not reasonably be doubted whether proceedings could be instituted to compel payment for this time? The answer was that the stipulation was valid, and that payment should be understood to be due even for those years which had elapsed before the condition was fulfilled, as the meaning was, that if Titius should be made Consul, ten sesterces must be paid every year, and that even the time which had passed ought to be included.

Africanus, Questions, Book VII. An heir received a surety from the debtor of an estate, and then transferred the estate under the Trebellian Decree of the Senate. It is held that the obligation of the surety remains unimpaired. The same rule should be observed in this case which is applicable when an heir, against whom an emancipated son obtains prætorian possession of an estate, accepts a surety. Therefore, in both instances, the rights of action pass with the estate. 1There is nothing new in the fact that a surety is liable under two different obligations for the payment of the same sum of money; for if he was accepted from a certain day, and afterwards accepted absolutely, he will be bound by both obligations; and if a surety becomes the heir of his fellow-surety, the result will be the same. 2I lent money to your slave, you manumitted him, and then I accepted him as surety. If he gave security for the obligation which is payable to you within a year, the slave is said to be liable. If, however, it was done on account of the natural obligation, which is his own, it is better to hold that the agreement is void; for it is incomprehensible that a surety can become liable for himself. But if this slave, after manumission, should become the heir of his surety, it is held that the obligation of suretyship continues to exist, and that the natural obligation will still remain, so that if the civil obligation is extinguished, he cannot recover what has been paid. Nor can it properly be alleged in opposition to this, that when a principal debtor becomes the heir of his surety, the obligation of the surety is extinguished; for the reason that then the double civil obligation cannot exist with reference to the same person. And, on the other hand, if the surety should become the heir of the manumitted slave, the same obligation against him will continue to exist, although he is naturally liable, and no one can become surety for himself. 3If the stipulator should appoint his debtor his heir, he absolutely annuls the liability of the surety, whether the obligation of the debtor was a civil or a natural one; as no one can bind himself with reference to a third party while acting for the latter. When, however, the same stipulator appoints the surety his heir, there is no doubt that he, at once, cancels the sole obligation of the surety. The proof of this is, that if possession of the property of the debtor is delivered to the creditor, it must also be said that the surety will still remain liable. 4When you and Titius are jointly liable for the same sum of money, he who became surety for you can also answer as surety for Titius, although the same money is due to the same person; and this obligation will not be void, so far as the creditor is concerned. Indeed, in some cases, it will be productive of benefit, for instance, if he should become the heir of him for whom he previously became surety; for then, the first obligation having been extinguished through merger, the second one will continue to exist. 5When the surety becomes the heir of the stipulator, the question arises whether, as he himself has required payment, so to speak, from himself, he will be entitled to an action on mandate against the principal debtor. The answer was that, as the principal debtor remains liable, the creditor cannot be understood to have collected the money from himself, as surety. Therefore, he should bring an action under the stipulation, rather than one on mandate.

Africanus, Questions, Book VII. When anyone stipulates that payment shall be made to him, or to Titius, the better opinion is that it will only be properly made to Titius, when he remains in the same condition in which he was when the stipulation was entered into. If, however, he has been adopted, or sent into exile, or forbidden the use of fire and water, or has become a slave, it cannot be said that legal payment has been made, for this agreement, namely, “If he remains in the same condition,” is understood to have been tacitly included in the stipulation. 1If I order my debtor to pay Titius, and, afterwards I forbid Titius to receive the money, and my debtor not being aware of the fact, pays him, it was held that the debtor was released, if Titius did not receive the money with the intention of profiting by it; otherwise, it would remain the property of the debtor, just as if he was about to steal it, and hence he cannot be released by operation of law; still, it is but just that relief should be granted him by means of an exception, if he is ready to assign to me the right of personal action, on account of theft, to which he is entitled against Titius; as is done where a husband, being desirous of making a donation to his wife, directs his debtor to pay her. For, in this case also, because the money does not become the property of the woman, the debtor will not be released, but he can be protected against the husband by an exception, if he assigns to him the right of action which he has against his wife. In the case stated an action for theft will be in my favor, after a divorce has been granted, when it is to my interest that the money should not be appropriated. 2The action De peculia was brought against a master, and judgment having been rendered against him, he paid it. The opinion was given that the sureties received for the slave were released, for the same money can be used to satisfy several claims, because when security is given for the payment of a judgment, and judgment is rendered against the defendant, and he pays it himself, the sureties are released, not only on account of the satisfaction of the judgment but also under the stipulation. This case is quite similar to the one where the possessor of an estate, believing himself to be the heir, makes payment, and the heir is not released; for this happens because the possessor, by paying money which was not due in his own name, can recover it. 3Where he who has promised a slave delivers one who is to be free under a condition, I think that the better opinion is that we should not wait for the fulfillment of the condition, but that the creditor can bring a personal action for recovery. If, however, in the meantime, the condition should fail to be fulfilled, the promisor will be released, just as if anyone had made payment through mistake, while a condition was pending, and it should be fulfilled before he brought the personal action. But it certainly can not be said, that if Stichus should die, and the condition should fail to be fulfilled, the debtor would be released, although if it was not fulfilled during his lifetime he would be freed from liability, since, in this case, you have, at no time, absolutely made the slave mine. Otherwise, it might also be held that if you deliver me a slave in whom some other person enjoys the usufruct, and the slave should die during the continuance of the usufruct, you will be considered released by this delivery; which opinion can, by no means, be adopted, any more than if you had delivered a slave owned in common, and he should die. 4Where anyone becomes surety for a person who has returned after having been absent on public business, and he incurs no risk of being sued on this account, will the surety also be released after the expiration of a year? This opinion was not adopted by Julianus, even where no power to proceed against the surety existed. In this instance, however, in accordance with the terms of the Edict, restitution should be granted by means of an action against the surety himself, just as is done against a surety who kills the slave that had been promised. 5Where anyone who has become surety for you to Titius gives a pledge for the further security of his obligation, and you afterwards appoint him your heir, although you will not be liable by virtue of the suretyship, still, the pledge will still remain encumbered. If the same person gives another surety, and appoints you his heir, he says that it is better to hold that the obligation of the debtor for whom security was taken having been extinguished, he also who had become his surety will be released.

Africanus, Questions, Book VII. A female fugitive slave is understood, to a certain extent, to steal herself, and also by taking her child with her she commits a theft.