Gaius, On Verbal Obligations, Book I. Loans of money are frequently made for the purpose of enabling them to take the place of payment.

Gaius, On Oral Obligations, Book I. If I stipulate conditionally with a principal debtor, I can bind a surety for both this condition and another, provided I unite them; for, unless both of them should be fulfilled, he will not be liable, as the principal debtor is bound by one condition alone. If, however, I separate them, the condition of the surety will become more onerous, and on this account he will not be liable; because, whether a condition will affect both of the parties bound, or only one of them, it will be considered to hold him; while the principal debtor will not be liable unless the common condition is fulfilled. Therefore, either the surety will not be liable at all, or, which is the better opinion, he will be liable if the common condition is previously fulfilled. 1When sureties are interrogated under different conditions, it is a matter of importance to ascertain which one was first complied with. If it was the one imposed upon the principal debtor, the surety will also be liable when this condition is fulfilled, just as if from the very beginning the principal debtor had been absolutely bound, and the surety had been bound under a condition. On the other hand, however, if the condition of the surety should first be complied with, he will not be liable, just as if he had been absolutely bound from the beginning, and the principal debtor was only bound conditionally. 2When the principal debtor is liable for a tract of land, and the surety is accepted for the usufruct, the question arises whether the surety is liable to a less extent, or, indeed, whether he is liable at all, as having promised something else. It does seem to us to be doubtful whether the usufruct is a part of the property, or something which exists by itself. But as the usufruct is a right attaching to the land, it would be contrary to the Civil Law for the surety not to be bound by his promise. 3A surety can be accepted by a slave, just as his master, himself, can legally accept one for the amount due to him; and there is no reason why the surety should not be interrogated by the slave himself. 4If you should stipulate with an insane person, it is certain that you cannot take a surety; for not only is the stipulation itself void, but no business at all is understood to have been transacted. If, however, I should accept a surety for an insane person, who is liable by law, the surety will also be liable. 5When it is commonly asserted that a surety cannot be received for criminal offences, it should not be understood that anyone who has been robbed cannot take a surety for the payment of the penalty for theft, as there is a good reason that penalties incurred by crimes should be paid; but rather in the sense that a person cannot bind the surety for part of the proceeds of a theft, which he desires to be given to him by someone with whom he committed the offence; or where, by the advice of another, he was induced to perpetrate a theft, he cannot take a surety from him with reference to the penalty for the crime. In these instances, the surety does not become liable, because he is not furnished in a valid transaction, and partnership in an illegal act is of no force or effect.

Gaius, On Verbal Obligations, Book I. The statement, “Which are worth more than thirty aurei,” has reference both to a sum of money, and the valuation of property.

Gaius, On Oral Obligations. If a slave, or a son under paternal control, stipulates as follows, “Do you promise to give this article or that, whichever I may wish?” neither the father nor the master, but only the son or the slave, can decide as to the selection of one of the articles. 1If a stranger personally is included in the stipulation, for instance, as follows, “Whichever one Titius may choose,” the stipulator has no right to demand either of the articles, unless Titius has selected it. 2Although a ward can legally stipulate from the moment when he can speak for himself, still, if he is under the control of his father, he will not be liable, unless with his authority; but a child who has arrived at puberty, and is under paternal control, is usually liable just as if he were the head of a household. What we have remarked with reference to a minor can also be said to apply to a son under paternal control who has not yet reached the age of puberty. 3If I stipulate as follows, “Do you promise to pay me or Titius?” and you answer that you will pay me; it is the opinion of all the authorities that you have properly replied to the interrogatory, for the reason that it is established that the right of obligation has been acquired by me alone, but only Titius should be paid. 4If the following stipulation should be made between persons who are at Rome, namely, “Do you promise to pay to-day at Carthage?” some authorities hold that such a stipulation does not always include what is impossible; because it may happen that both the stipulator and the promisor may have, some time previously, notified their agent that a stipulation would be made upon a certain day, and the promisor may have directed his steward to make payment, and the stipulator his to receive it; because, if entered into in this way, the stipulation would be valid. 5When I stipulate for myself or for Titius, it is said that I cannot stipulate for one thing for myself and another for him, as, for instance, ten aurei for myself, or a slave for Titius. If, however, what was specifically designated for Titius is given to him, although the promisor will not be released by operation of law, he still can plead an exception by way of defence. 6Different dates, however, may be fixed, for example, “Do you promise to pay me on the Kalends of January, or Titius on the Kalends of February?” and, again, a nearer date can be agreed upon with reference to Titius, as follows, “Do you stipulate to pay me on the Kalends of February, and Titius on the Kalends of January?” In this case we understand the stipulation to mean, “If you do not pay Titius on the Kalends of January, do you promise to pay me on the Kalends of February?” 7Moreover, I can stipulate for myself absolutely, or for Titius under a condition. On the other hand, if I stipulate for myself under a condition, and for Titius absolutely, the entire stipulation will be void, unless the condition relating to me personally should not be fulfilled: that is to say, the additional obligation will not be valid unless the one which has reference only to me individually takes effect. This, however, can only be determined in this way, if it becomes evident that Titius was added unconditionally; otherwise, if I should stipulate as follows, “If a ship arrives from Africa, do you promise to pay me, or Titius?” Titius is considered to have been added under the same condition. 8From this it appears that if one condition is imposed with reference to me, and another with reference to Titius, and that which has reference to me should not be fulfilled, the entire stipulation will be of no force or effect; but if my condition as well as that of Titius is complied with, payment can be made to Titius, still, if the condition should fail with reference to him, it will be considered as not having been added. 9From all these things it is evident that although another person cannot properly be added, the stipulation is none the less valid, so far as we are concerned.

Gaius, On Oral Obligations. If Titius and I stipulate for anything, and it is understood to have reference to one of us in particular, we cannot act as joint-stipulators for the entire amount; as, for example, where we stipulate for an usufruct, or that property shall be given us by way of dowry, and this was stated by Julianus. He also says that if Titius and Seius stipulate for ten aurei, or Stichus, who belongs to Titius, they should not be considered as two joint-stipulator s, as only ten aurei will be due to Titius, and Stichus, or ten aurei will be due to Seius. The result of this opinion is, that whether he pays either of the stipulators ten aurei, or delivers Stichus to Seius, he will still remain liable to the other; but it must be held that if he pays ten aurei to either of them, he will be released from liability, so far as the other is concerned.

Gaius, On Oral Obligations, Book II. It is one thing to be able to pay Titius in accordance with the terms of a stipulation, and another for this to take place by my permission. For if payment is properly made by virtue of the stipulation, the creditor can legally be paid even if I forbid it to be done; but if I permit payment to be made, this will not be legal, if, before it takes place, I notify the promisor not to pay.

Ad Dig. 3,5,38ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.Gaius, On Verbal Obligations, Book III. Where anyone pays a debt for another, even though the latter is unwilling, or ignorant of the fact, he discharges him from liability; but where money is owing to anyone, another cannot legally exact it without the consent of the former; for both natural reason and the law have established the rule that we may improve the condition of a man who is ignorant and unwilling, but we cannot make it worse.

The Same, On Oral Obligations, Book III. If only one of two joint-stipulator s institutes legal proceedings at a time, the promisor will not be released by tendering money to the other.

Gaius, On Oral Obligations, Book III. If a slave stipulates for his master, or for his usufructuary, with reference to property belonging to his master, Julianus says that he acquires the obligation for the benefit of his master, and that the usufructuary can be paid just as anyone who has been joined. 1If a slave owned in common should stipulate with reference to property belonging to one of his masters, the better opinion is that the stipulation is acquired for both of them; but he whose property was made use of in making the stipulation can properly avail himself of an action in partition, or the action on partnership, in order to recover his share. The same rule applies, if a slave acquires for one of his masters by means of his labor. 2If each one of his two masters stipulates that the same ten aurei shall be given to a slave, jointly owned by them, and but one answer was made, there will be two joint stipulators, as it is established that a master can stipulate for payment to his slave. 3Just as a slave acquires for one of his masters alone, if he stipulates for him by name, so it is decided that if he purchases property in the name of one of his masters, he will acquire it for him alone. In like manner, if he lends money to be paid to one of his masters, or transacts any other business whatever, he can expressly provide that the property shall be restored, or payment be made to one of them alone. 4The question arose whether a slave forming part of an estate can stipulate for the benefit of the future heir. Proculus says that he cannot, because at that time he was a stranger. Cassius is of the opinion that he can, as he who afterwards becomes the heir is held to have succeeded to the deceased at the time of his death. This reason is supported by the fact that the entire body of slaves is understood to represent the deceased at the time of his death, although the heir may not appear for some time. Hence it is clear that the benefit of the slave’s stipulation is acquired for the heir.

Gaius, On Oral Obligations, Book III. If a surety should bind himself under the condition that a ship will arrive from Asia, and I accept him with the understanding that the obligation will only render him liable during his lifetime, and while the condition is pending he receives a release from me, and the surety dies before the condition is fulfilled, I can immediately bring suit against the principal debtor, because even if the condition should be fulfilled, it could never establish an obligation against one who is already dead, and could not confirm the release which I had granted.

Gaius, On Oral Obligations, Book III. It cannot be doubted that a son under paternal control or a slave who is permitted to manage his own peculium has also the right to make the debts of the peculium the subject of novation, if the parties stipulate; and this is by all means the case if his condition will be improved by doing so. For if he directs a third party to stipulate, it makes a difference whether this is done with the intention of making a donation, or in order that he may transact the business of the son or the slave, and on this ground the action on mandate with reference to the peculium is acquired by them. 1There is no doubt whatever that the relative of an insane person, or the curator of a spendthrift, has the right of novation, if this is to the advantage of the said insane person or spendthrift. 2In a word, we should remember that there is nothing to prevent the novation of several obligations by one agreement, as for instance, if we stipulate as follows, “Do you promise to pay what Titius and Seius are obliged to pay me?” for although they are liable for different reasons, still both are released by the right of novation, as the liability of both is united in the person of him with whom we now stipulate.

Gaius, On Oral Obligations, Book III. A slave cannot give a release by the order of his master.