The Same, Digest, Book LII. A slave who has been taken by the enemy can legally be bequeathed, for this is derived from the right of postliminium; since, just as we can appoint a slave who is in the hands of the enemy our heir, so also, we can bequeath him as a legacy.

The Same, Digest, Book LII. Whenever a certain kind of service is specified in the stipulation, as, for instance, those of a painter, or of some artisan, they cannot be demanded unless the time for their performance has elapsed, as in the contract itself, time for performance is understood to be given, although it may not be expressed in words; for example, when we make a stipulation for services to be rendered at Ephesus, sufficient time to do so is implied. Hence the following stipulation is void, “Do you promise to give me to-day a hundred pictures which you have painted?” Services, however, begin to be due from the date of the stipulation. Those which a patron requires from his freedman are not due immediately, because it is understood to be agreed among the parties that they shall not be due before the time for their performance has been indicated; that is to say, that the freedman shall perform his services according to the convenience of his patron; which cannot be said with reference to those of an artisan, or a painter.

The Same, Digest, Book LII. Where anyone makes a stipulation as follows, “Do you promise to pay ten aurei to Titius and myself?” it is probable that he stipulated for only ten aurei to be paid to Titius and himself together; just as where anyone makes a bequest to Titius and Sempronius, he is only understood to have left ten aurei to them conjointly. 1“Do you promise that you and Titius, your heir, will pay ten aurei?” It was superfluous to include Titius, for, if he is the sole heir, he will be liable in full; and if he is the heir to only a part of the estate, he will be liable to the same extent as the remaining co-heirs; and although it seems to have been agreed that suit could be brought only against Titius, and not against his co-heirs, still, this informal agreement which has been entered into will be of no benefit to his co-heirs. 2Anyone who stipulates for payment to himself or to his son clearly includes his son in the stipulation, in order that he may legally be paid. Nor does it make any difference whether he stipulates for himself and a stranger, or for himself and his son. Therefore payment can properly be made to the son, either while he is under the control of his father, or after his emancipation; nor does it matter that a party who stipulates for payment to be made to his son acquires for himself, because the stipulator, when including himself, causes it to be understood that his son is joined with him, not for the purpose of acquiring an obligation, but to render payment more easy. 3Where anyone has stipulated that payment shall be made to his son alone, who is under his control, it cannot legally be made to the latter; because his son is mentioned in the contract rather on account of the obligation than for the purpose of payment. 4Where a person stipulates as follows, “Do you promise to pay ten aurei as long as I live?” he can legally demand the ten aurei immediately, but his heir can be barred by an exception on the ground of an informal agreement; for it is clear that the stipulator did this to prevent his heir from making the claim; just as he who stipulates that money shall be paid to him “up to the time of the kalends,” can, in fact, bring suit for it after the kalends have arrived, but he will be barred by an exception based on the contract. For the heir, also, of one to whom a servitude attaching to a tract of land has been granted for his lifetime, will be entitled to the right of way, but he can be barred by an exception based on the informal agreement. 5He who stipulates as follows, “Do you promise to pay before the next kalends?” does not differ from one who stipulates for payment on the kalends. 6A person who has the ownership of property without the usufruct can legally stipulate for the usufruct to be transferred to him; for he inserts in the obligation something which he has not at the time, but which he can have subsequently. 7If I stipulate with you for the Sempronian Estate, and afterwards I stipulate with another for the same estate, without its usufruct, the first stipulation will not be renewed because you will not be released by transferring to me the land without its usufruct; but I can still properly bring suit against you to recover the usufruct of the said land. What then should be done? When you transfer the land to me, he also with whom I stipulated for the land without the usufruct will be released from liability. 8If Seius promises me, under a condition, the same slave for whom I have absolutely stipulated with Titius, and while the condition is pending, and after Titius is in default, the slave should die, I can immediately bring an action against Titius, and the condition having been fulfilled, Seius will not be liable. If, however, I should give Titius a release, Seius will be bound, if the condition should be complied with. There is, therefore, this difference, namely, after the slave dies, the property for which Seius was liable ceases to be in existence, but the release having been given, the slave whom Seius promised still remains.

The Same, Digest, Book LII. If I expect to have two joint-promisors, and interrogate both of them but only one answers, I think that the better opinion is that the one who answers is liable; for the interrogatory is not put to both of them under the condition that no obligation will be incurred if only one should reply. 1Where there are two joint-promisors, I entertain no doubt that the stipulator is at liberty to receive a surety from both, or only from one of them. 2Where anyone who is interrogated by two joint-stipulators answers one of them that he promises, he will be liable to him alone. 3Two joint-promisors can undoubtedly be bound in such a way that the time in which each of them gives his answer shall be taken into consideration. A reasonable interval of time, as well as an ordinary transaction (provided it is not contrary to the obligation), does not prevent two joint-promisors from becoming liable. A surety, also, who having been interrogated, answers between the two replies of the joint-promisor, is not considered to have interfered with their liability, because a long period of time has not intervened, and no act at variance with the terms of the obligation has been performed.

Julianus, Digest, Book LII. When a slave stipulates, it makes no difference whether he does so for himself, or for his master; or indeed whether he agrees to make payment, without mentioning any of the parties interested. 1If your slave, who is serving me in good faith, should have a peculium which belongs to you, and I make a loan out of it to Titius, the money will still remain yours; and if the slave should stipulate that the same money shall be paid to me, he will not perform a valid act. Hence you can recover the money by an action. 2If a slave, who is owned in common by yourself and me, lends money out of his peculium, which belongs to you alone, he will acquire an obligation for you; and if he stipulates for the same money to be paid to me, he will not release the debtor, so far as you are concerned, but both of us will be entitled to actions; I, on account of the stipulation, and you, because your money has been lent; the debtor, however, cannot bar me, except by an exception on the ground of fraud. 3What my slave stipulates to be paid to my slave is considered to be the same as if he had stipulated for my benefit. Likewise, whatever he stipulates for your slave is the same as if he had stipulated for your benefit; so that the first stipulation creates an obligation, but the second is of no force or effect whatever. 4A slave owned in common sustains the part of two slaves; therefore, if my own slave stipulates for the benefit of another slave owned jointly by myself and you, the same rule will apply in a verbal contract of this kind, as if two stipulations had been made, one for my slave individually, and the other for yours in the same manner. And we should not think that only half is acquired for my benefit, and that the other half is not acquired at all, because the position of a slave owned in common is such that where one joint-owner can acquire by his agency, and the other cannot, it is just the same as if the former alone had the power of acquisition. 5Where a slave, subject to an usufruct, stipulates for the usufructuary, or the owner; for instance, if he only stipulates for the interest of the usufructuary, the stipulation will be void, because he would have been able to acquire a right of action for both parties through the property of the usufructuary. If, however, he stipulates for something else, the proprietor can bring the action, and if the promisor pays the usufructuary, he will be released from liability. 6When a slave, jointly owned by Titius and Mævius, stipulates as follows, “Do you promise to pay Titius ten aurei, on the kalends, and if you do not pay him ten aurei on the kalends, do you promise to pay twenty to Mævius?” there appear to be two stipulations. If the ten aurei should not be paid on the kalends, either of the joint-owners can bring suit under the stipulation; but, on account of the second obligation promised by Mævius, Titius will be barred by an exception on the ground of fraud.

Julianus, Digest, Book LII. Where, however, a stipulation is made as follows, “Do you pronv ise to pay Titius ten aurei, or transfer a tract of land to Mævius?” for the reason that it is uncertain for which one of them he acquires the right of action, the stipulation is considered to be void.

The Same, Digest, Book LII. Where anyone stipulates that a tract of land shall be conveyed to him, or to Titius, even though the land should be given to Titius he will still be entitled to an action, if he is subsequently evicted; just as if he had stipulated for a slave, and the promisor had given Titius one who was to be free under a condition, and the slave should afterwards obtain his liberty. 1Where a man, who promised to give Stichus or Pamphilus, wounds Stichus, he is not released by delivering him, any more than if he had only promised Stichus, and delivered him after he had been wounded by him. Likewise, where anyone promises to give a slave, and tenders him wounded, he will not be freed from liability. And where the case is pending in court, and the defendant tenders a slave who has been wounded by him, he should have judgment rendered against him; and even if he tenders a slave who has been wounded by someone else, he will have judgment rendered against him, if he can give another slave.