Javolenus, Epistles, Book I. You owed me a sum of money without any condition, and by my direction you promised Attius to pay said sum of money under a condition. While this condition is pending, your obligation toward me is just the same as if you had promised me the money on the contrary condition; if, while the condition is pending, I bring suit, will this be of no effect? The answer was: I have no doubt that the money with reference to which I stipulated with you absolutely will remain as a loan to you, even if the condition relating to Attius—who, with my consent, stipulated for the payment of said money under a condition—is not fulfilled: for the legal position is the same as if no stipulation had been made by him, and, while the fulfilment of the condition is pending, I cannot bring an action for the money, because it is uncertain whether it may not be due under the stipulation, and I will be held to have brought my action too soon.

The Same, Epistles, Book I. Where a party has become surety for another for a certain quantity of wheat, without any reference to its quality; I think that he will release the principal debtor by furnishing any kind of wheat whatsoever, but he cannot recover any other kind of wheat from the principal debtor, except that of the most inferior quality, by the delivery of which he could have released himself from the claim of the stipulator. Therefore, if the principal debtor is prepared to give to the surety the same kind of wheat, by giving which to the creditor, he himself could have been released, and the surety brings an action for the same kind of wheat which he furnished, that is to say, grain of superior quality, I think that he can be barred by an exception on the ground of fraud.

The Same, Epistles, Book I. Where the same property is bequeathed to two of my slaves, and I am unwilling to accept the legacy left to one of them, the whole of it will belong to me, for the reason that I acquire through one of these slaves the share of the other, just as if the legacy had been bequeathed to my slave and one belonging to another person.

The Same, Epistles, Book I. When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally. 1So far as those who fall into the hands of the enemy are concerned, the law relating to their retention of the rights of property is a peculiar one, for they lose corporeal possession of the same, nor can they be held to possess anything when they themselves are possessed by others; therefore it follows that, when they return, a new acquisition of possession is required, even if no one had possession of their property in the meantime. 2I also ask, if I chain a freeman in order to possess him, whether I possess through him everything which he possesses. The answer is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power.

Javolenus, Epistles, Book I. If you purchase a slave with the understanding that, if some condition should be complied with, the sale will be void, and the slave is delivered to you, and fulfillment of the condition afterwards annuls the transaction, I think that the time during which the slave was in possession of the purchaser should benefit the vendor, because a sale of this kind is similar to the redhibitory clause for the return of property, which is introduced into contracts for sales; and, in a case of this kind, I have no doubt that the time that the purchaser held the property will benefit the vendor, as properly speaking, no sale took place.

Ad Dig. 42,5,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 11; Bd. III, § 559, Note 25.Javolenus, Epistles, Book I. The head of a household substituted an heir for his son, who was under the age of puberty, in case the latter should die before reaching that age. The son rejected the estate of his father, and therefore the property of the deceased was sold by the creditors. An estate subsequently came to the son, who died after having accepted it. I ask whether the Prætor should not grant an action to the creditors of the father against the said minor, although he obtained the estate afterwards, or should an action be granted to the creditors of the father against the substitute, who obtained nothing from the father’s estate which, of course, went into the hands of the creditors, and as the latter had no right to the property of the minor, it was no concern of the heirs whether his estate was entered upon or not, as the property found by the substitute in the estate of the son did not belong to his father’s creditors. This opinion perplexes me exceedingly, because it was decided by your preceptors that there was only one will. The answer was that the Prætor benefited the son, who did not accept the estate of his father, by not allowing an action to be granted against him, after the sale of his father’s property (although he subsequently obtained an estate), to compel him to pay the creditors; but the same rule should not be observed with reference to the heir who was substituted for the son, as allowance was made for the honor of the latter, by causing the property of his father to be sold, rather than his own. Therefore an action will be refused the creditors, as far as the property Which was afterwards acquired by the son is concerned, for the reason that it came to him from another than his father. But if the substitute for the son had entered upon the father’s estate, after the minor had taken some action with reference to it, then the estates of the father and the son became identical, and the heir, even if unwilling, would be liable for all debts incurred by either the father or the son; and, as, after an obligation had been contracted, he could, by no means, prevent his own property from being sold, if no defence was made; so in like manner, the indebtedness of the father and the son could not be separated, in which case the result would be that an action must be granted to the creditors against him. If, however, the substituted heir should not enter upon the estate, an action ought not to be granted to the creditors of the father with reference to the estate left by the minor, as neither the property of the latter should be sold to discharge the debts of the father, nor should the estate which the minor acquired be included in that of his father.