The Same, Questions, Book XXVII. Where a person stipulates that a house shall be built for him at Capua within a certain time; it is established that when the time has elapsed, he can bring an action for damages for the amount of his interest, anywhere.

The Same, Questions, Book XXVII. Where a slave directs someone to purchase him, the mandate is void. But if the mandate was given for the purpose of manumitting the slave, and the party in question does not manumit him, the master and vendor can sue for the recovery of the purchase-money, and an action on the ground of affection can be brought, for suppose that the slave was a natural son, or a brother. It was held by persons learned in the law that, in bona fide cases, attention should be paid to the consideration of affection. Where the purchaser paid the price out of his own money, (for, otherwise he could not be released from liability to an action on sale), it is frequently asked whether he can properly bring an action on the peculium? The more correct and judicious opinion seems to be that the Prætor did not have in mind contracts of this kind made by slaves, by which they attempted to escape the bad treatment of their masters. 1If a freeman serving in good faith as a slave should direct someone to ransom him, and this is done with the money of the purchaser, it is established that the contrary action on mandate will lie; provided, however, that the rights of action which the purchaser has against the vendor are assigned, supposing that the purchaser did not manumit the free person aforesaid.

The Same, Questions, Book XXVII. Where a vendor takes security from a purchaser that he will not manumit a female slave, or subject her to prostitution, and, if any act is committed in violation of this provision she can be recovered by her master or considered free, and a penalty be demanded on the ground of a stipulation; certain authorities hold that an exception based on bad faith can be pleaded, but Sabinus thinks that this cannot be done. Reason, however, suggests that a stipulation cannot legally stand, if the condition, “That she should not be manumitted,” is left out, for it is incredible that one should have intended to have manumitted a slave, and not have had in mind an act which would accomplish it. But where it is provided that the slave shall not be subjected to prostitution, there is no reason why the penalty should not be sued for and collected, as the purchaser would have brought disgrace upon the slave and impugned the intentions of the vendor at the same time; for, leaving the stipulation out of consideration altogether, it has been established that an action on sale will lie. 1Where a purchaser either commits, or does not commit an act contrary to the provisions governing the sale, we have sometimes decided that the vendor cannot bring an action on sale to have him punished, unless the vendor had a pecuniary interest in the matter, as, for example, because he himself had promised a penalty; but it is not expedient to believe that a good citizen would hold that it was to the interest of the vendor to have his rage appeased in this way. The opinion of Sabinus, however, induces me to hold the contrary, for he thinks that an action can properly be brought, as the slave seems to have been sold for a lower price on account of the condition.

The Same, Questions, Book XXVII. The question arose whether, where a man sold his own slave, and directed that he should be manumitted within a certain time, and afterwards changed his mind, and the purchaser, nevertheless, manumitted him, he would be entitled to any action on this ground. I stated that the right of action on the ground of sale was extinguished if the slave was manumitted, or the vendor changed his mind.

The Same, Questions, Book XXVII. Where a master, after having stated the value of his slave, delivered him up to be put to torture when he was accused of theft, and he was not found guilty, and he to whom he was delivered would not return him, a civil action can be brought against him on this ground; although, under certain circumstances, a party to whom a slave has been delivered can retain him. For he can retain a slave if the owner prefers to receive the money instead, or where he has been caught committing a crime; for then the amount at which he has been appraised must be paid by his master. But the question, however, arises, by what action the money can be recovered, if the master chooses to receive the appraised value of the slave? I stated that, although what was agreed among the parties was not prescribed by the terms of a stipulation, still, if the intention of the contract was not obscure, an action præscriptis verbis could in this case be brought, and that it should not be held that a mere agreement without consideration had been made, since it could be proved that the property was given under a certain condition.

The Same, Questions, Book XXVII. If you make a stipulation, “For property to be given to you, and complete possession of the same to be delivered,” reason suggests that you should afterwards obtain the profits of said property which have been collected by having recourse to a general action on stipulation, on account of the last words of the clause. It should be considered whether the same rule will apply to the offspring of a female slave in a case of this kind; for, with reference to the first words of the clause, whether they relate to the fact of the property being promised, or to the effect of the delivery by the transfer of ownership, offspring is not included. But if the purchaser, with the intention of renewing the obligation, stipulated with the vendor in this way, the fact of the delivery was understood to be agreed upon, for the reason that it is not probable that the vendor promised more than he would be compelled to furnish in an action on purchase. Still, on account of the words, “And complete possession to be delivered,” it can be held that the accounting for the offspring becomes operative on account of the stipulation being general in its character; for after the female slave has been delivered, the party to the stipulation would be entitled to include any child subsequently born on his premises. 1Where a child is born to a female slave after the sale has been contracted, but before the stipulation has been entered into, or any property is acquired by the vendor through the agency of the slave, he can recover it by means of an action on purchase; but he cannot do so by means of an action based on the stipulation, for whatever is not transferred to a new obligation can be recovered under the former right.

The Same, Questions, Book XXVII. “Let my heir pay a hundred aurei to Titius without delay.” The testator then extended the time for the payment of the legacy. It is not true, as Alfenus says, that a hundred aurei should be paid immediately, for the reason that a time has been fixed for payment.

The Same, Questions, Book XXVII. A debtor became the heir of his surety, and the creditors of the latter sold his property. Although the liability of the security was extinguished, still, a separation of property will be granted on the demand of him to whom the surety was liable, whether he was the only creditor of the estate or whether there were several. For the rule of law which excludes the obligation of the security on account of the principal obligation, which is the greater, should not prejudice the rights of the creditor who has diligently provided for his own interest. 1But what if, after the separation of the property of the surety, the stipulator should be unable to collect his entire claim from the estate? Can his share be demanded along with those of the other creditors of the heir, or must he remain content with the property which he preferred to be separated? As, however, this stipulator could have shared with the creditors of the debtor in any balance which remained, if the estate of the surety had not been accepted by the creditor of the principal debtor, after the sale of the property of the surety, reason does not permit that he should be excluded in the case proposed. 2But with reference to every other creditor who has obtained a separation of property, it is more advantageous to hold that if he can not collect his entire debt from the estate, he can still recover something from the property of the heir, if the personal creditors of the heir have been satisfied, because there is no doubt that he should be admitted to share with the creditors of the heir, after those of the estate have been satisfied.

Papinianus, Questions, Book XXVII. An exception on the ground of res judicata will bar one who succeeds to the ownership of the party who lost the case.

Papinianus, Questions, Book XXVII. Obligations which are not valid themselves cannot be rendered so either by the decision of the judge, the order of the Prætor, or the power of the law.

The Same, Questions, Book XXVII. A man who is free and who is serving me in good faith as a slave makes a promise to me as stipulator; and this stipulation is almost entirely valid in every respect, even though he may promise me something which is my own property. For what else can be said to show that a freeman is not liable? And still, if I promise the same person as a stipulator, under similar circumstances, I will be liable. For how will he be entitled to an action against me which he would have acquired for my benefit, if he had stipulated with a third party? Therefore, in this respect, he should be compared to a slave in whom someone enjoys the usufruct, or to the slave of another who is serving in good faith. But when a slave promises the usufructuary, or the slave of another who is serving a bona fide purchaser in good faith, with reference to property which belongs to either of them, an action De peculia will not be granted against the master; because, in cases of this kind, such persons are considered as masters. 1“Do you promise to pay ten aurei to-day?” I said that the money could be demanded on this very day, and that the claimant could not be held to have proceeded too soon, even if the day of the stipulation had not ended, which would be the law under other circumstances. For what ought not to be demanded within a certain time cannot be paid within that time; and in the case stated the day is considered to be inserted, not for the purpose of deferring the action, but in order to show that it can be begun at once. 2“Do you promise to pay ten aurei to me, or to Titius, whichever one I may choose?” So far as payment to me is concerned, the. stipulation is certain, but with reference to payment to him it is uncertain. For suppose that it is to my interest that payment should be made to Titius, rather than to myself, as I promised a penalty if payment is not made to Titius?

Papinianus, Questions, Book XXVII. Ad Dig. 45,2,9 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 297, Note 4.If I deposit the same article, at the same time, with two persons, relying upon the good faith of both of them, for its full value: or if I loan the same article, in like manner, to two persons, they become joint-promisors; for the reason that liability is incurred not only under the terms of the stipulation, but also in other contracts, for instance, purchase, sale, hiring, lease, deposit, loan, or will; just as if, for example, a testator, after having appointed several heirs, had said, “Let Titius and Mævius pay ten aurei to Sempronius.” 1If anyone, while depositing property with two persons, provides that only one of them shall be liable for negligence, it is perfectly evident that they are not joint-promisors, as different obligations have been imposed upon them. The same opinion should not, however, be adopted where both of them promised to be liable for negligence, if afterwards, under an agreement, one of them was released from liability for negligence; because the subsequent agreement made with one of them cannot change the legal position and natural obligation which rendered them both joint-promisors in the beginning. Therefore, if they are partners, and were both guilty of negligence, the agreement made with one of them will also benefit the other. 2When I stipulate with two joint-promisors that money shall be paid to me at different places in Capua, the time having reference to each one of them must be taken into consideration. For although they have assumed what is in fact a single obligation, it is still susceptible of modification, so far as each of the promisors is concerned.

Papinianus, Questions, Book XXVII. Where a slave is jointly owned by Mævius and a peculium castrense, and the son under paternal control to whom the peculium belongs dies while in the army, and, before the appointed heir enters upon the estate, the said slave stipulates, the entire stipulation will enure to the benefit of the partner who in the meantime is the sole owner of the slave; because the estate, not yet being in existence, is not susceptible of division. For if anyone should venture to allege that the son under paternal control has an heir, the estate would not, in consequence, be considered already in existence, since the benefit of the Imperial Constitution permits a son under paternal control to dispose of his peculium by will. This privilege remains in suspense, before the will is confirmed by the acceptance of the estate. 1If the slave of Titius and Mævius should stipulate that the share of Mævius shall be given to him, the stipulation will be void; but if he stipulated that it should be given to Titius, it will be acquired by Titius. If the stipulation is formulated simply, for instance, “Do you promise to give the share which belongs to Mævius?” without adding the words “to me,” it is probably true that, as the stipulation was in no way defective, it will profit the person who is entitled to the benefit of the same. 2A slave, whose master was taken by the enemy, stipulated for something to be given to his master. Although what he simply stipulated for or received from another would belong to the heir of the captive, the rule is different with reference to the son personally, because he was not under paternal control at the time when he made the stipulation, and was not, like the slave, afterwards included among the property of the estate. Still, in the case stated, it may be asked whether, under this stipulation, he will be held to have acquired nothing for the heir, just as if a slave belonging to an estate had stipulated for the deceased, or even for his future heirs. But, in this instance, the slave will be on the same footing with the son, for if the latter should stipulate for him to be given to his father, who was a captive, the matter will remain in abeyance, and if the father should die while in the hands of the enemy, the stipulation will be considered to be of no force or effect, as the son stipulated for another, and not for himself. 3Where a slave, who is the subject of an usufruct, hires his own services, and for this reason stipulates for the payment of money every year, Julian says that, on the termination of the usufruct, the stipulation for the remainder of the time will be acquired by the owner of the property. This opinion seems to me to be supported by the very best of reasons. For, if the agreement for his services was made, for example, for five years; as it is uncertain how long the usufruct will continue to exist, then, at the beginning of each year, the money due at the time would belong to the usufructuary. Hence, the stipulation does not pass to another, but is only acquired for each person to the extent permitted by the law. For, if a slave should stipulate as follows, “Do you promise to pay me as much money as I have paid you up to that time?” it remains undetermined who will be entitled to an action under the stipulation, since if I should pay the money out of the property belonging to the usufructuary, or what was obtained by the labor of the slave, it would belong to the usufructuary; but if it was derived from some other source, it would be acquired for the benefit of the owner.

The Same, Questions, Book XXVII. If an heir, omitting a debtor who has been released by a will, brings suit against his surety, the surety can take advantage of an exception based on fraud, on account of the dishonorable act of the heir; and the same exception would also have benefited the principal debtor, if he had been sued. 1If one of two heirs of a surety, through mistake, pays the entire amount due, certain authorities hold that he is entitled to a personal action, and therefore that his fellow-surety remains liable. They believe that the obligation of the co-heir continues to exist, even if suit should not be brought; because the creditor who, thinking that he is liable, pays a part to him who has discharged the entire indebtedness, will not be entitled to a personal action to recover this part. Where, however, two sureties have been accepted, for example, for twenty aurei, and one of two heirs of the other surety pays the entire sum due to the creditor, he will, indeed, be entitled to a personal action to recover the ten aurei which he did not legally owe. But, could he recover the remaining five if the other surety was solvent, is a question which should be considered. For in the beginning, the heir or heirs of the surety should be heard, just as the surety himself should be; so that each of the sureties may be sued for his respective share. In both instances, the opinion that the payment of a sum of money which was not due should not be recovered is at once more harsh and more convenient, for a Rescript of the Divine Pius states this in the case of a surety who had paid the entire amount of the claim. 2Where a surety, who promised at Rome that he would pay a sum of money at Capua, and if the promisor should be at Capua, the question arose whether he could immediately be sued. I answered that the surety would not immediately be liable any more than if he had made the promise at Capua, when the principal debtor had not been able to reach that city, and that it makes no difference if no one “doubts that the surety would not yet be liable, for the reason that the promisor himself was not. On the other hand, if anyone should say that because the debtor is at Capua the surety is immediately liable, without taking into consideration the time to which he was tacitly entitled; the result would be that, in this case, the surety could be sued at a time when the debtor himself could not be, if he were at Rome. Therefore, it is our opinion that the obligation of suretyship includes the implied condition of necessary time to which both parties, that is to say, the promisor as well as his surety, are entitled; since if a different conclusion was arrived at, this would be understood to impose a more burdensome condition upon the surety, in violation of the rule of law.

The Same, Questions, Book XXVII. When a son under paternal control, who is a soldier, is captured and dies in the hands of the enemy, the Cornelian Law will come to the relief of the appointed heirs, and if they do not accept the estate, the father will be entitled to the peculium by virtue of his prior right. 1The following case seems to resemble the one previously stated; so that while the testamentary heirs are deliberating, whatever a slave in the meantime stipulates for, or receives from another person by delivery to himself, is of no legal effect, so far as the father is concerned, if the peculium remained in his hands, as the slave did not belong to the father at that time. But with reference to the appointed heirs, both the delivery and the stipulation are understood to remain in suspense; for the slave will be considered to have belonged to the estate after it has been accepted. The respect due to the father, however, induces us to say that in the case where the peculium remains in his hands by virtue of his former right, any acquisition obtained by the stipulation, or any property delivered to the slave, will be to his advantage. 2A legacy left to such a slave is not acquired by any of the heirs, because it is still uncertain whether it will be accepted or not. But if the will should not be executed, the legacy will be at once acquired by the father through the slave; for if it had been acquired by the peculium, as in the case of an estate, the right of the father would not at present be considered.

Papinianus, Questions, Book XXVII. The words “to do,” include everything which can be done; just as “to give,” “to pay,” “to count,” “to judge,” “to walk.”