Paulus, On the Edict, Book XXIX. But if he promises to pay before that time, he will also be liable.

Paulus, On the Edict, Book XXIX. If, however, you promise to pay either me or Titius, I have a right to bring an action; although, after you have made the promise that you will pay me alone you pay Titius, you will, nevertheless, be liable to me.

Ad Dig. 13,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 296, Note 2.Paulus, On the Edict, Book XXIX. The same rule applies where there are two creditors under a stipulation, and a promise to pay is made to one of them, and payment is subsequently made to the other; because the party to whom the promise is made should be considered to be in the position of one who has been already paid.

The Same, On the Edict, Book XXIX. Where anyone who owes twenty aurei promises to pay ten, he will be liable.

Paulus, On the Edict, Book XXIX. And although the party through whom I make you a promise to pay may be free, this will be no obstacle, as we can acquire property through a person who is free, because in this instance the party is considered only to offer his services.

Paulus, On the Edict, Book XXIX. But where he offers to make payment on another day, and the plaintiff is unwilling to receive it, although he has no good reason for refusing, it is but just that relief should be granted the defendant, either by an exception or by a proper interpretation, so that, up to the time of trial, the act of the plaintiff will injure himself; and that the construction of the words, “Did not do,” may be that he did not perform what he promised up to the date which he mentioned, or at any time subsequently.

Paulus, On the Edict, Book XXIX. Where something is due under a condition, and the promise is made which renders it payable either absolutely or at a certain time, it will remain in abeyance under the same condition; so that if the condition is complied with the party will be liable, but if it is not, both rights of action will be extinguished. 1But where anyone owes a debt absolutely, and makes a promise for payment under a condition, Pomponius says that an equitable action can be brought against him. 2Where a father or the owner of a slave promises to make payment to the amount of what is contained in the peculium, the peculium will not be diminished for the reason that he obligated himself in this way; and even though the peculium may have been lost, he will, nevertheless, not be released from liability:

The Same, On the Edict, Book XXIX. Where a party promises to deliver Stichus, and Stichus dies after he is in default, if he promises to pay his value, he will be liable. 1If you make a promise without mentioning the time of payment, it may be said that you will not be liable, although the terms of the Edict are susceptible of a broad interpretation; otherwise, proceedings may be instituted without delay, unless you have prepared to make payment just as soon as you promised to do so, but a reasonable time should be granted, for instance, not less than ten days, before the claim can be collected. 2In this action, as in other bona fide actions, the same oath shall charge his obligation if he merely tenders security; but where he promises that he will give security and he offers a surety or a pledge, he will not be liable, because it makes no difference in what way he provides security.

Paulus, On the Edict, Book XXIX. Nor should an action on a loan for use be granted against an insane person, but an action for production should be granted against both; so that, when the property is produced, a suit may be brought for its recovery.

Paulus, On the Edict, Book XXIX. We can lend even the property of others which is in our possession, even though we know that it belongs to another:

Paulus, On the Edict, Book XXIX. In a case of loan, an agreement that the bailee shall not be responsible for bad faith is not valid. 1The counter action on loans can be instituted without the direct action, just as the others which are designated counter actions. 2Where an action on loan is brought on account of an act of the heir, judgment will be rendered against him for the entire amount, even though he may be heir only to a share. 3Just as the making of a loan for use is an act of free will or of kindness, rather than of necessity, so also it is the right of the party who confers the favor to prescribe terms and limits with reference to the same. When, however, this has been done, (that is to say, after the loan has been made), then the prescribing of terms and going back and unseasonably depriving the party of the property loaned, not only interferes with the kindness displayed, but also with the obligation created by giving and receiving the property. For the transaction is participated in by both parties, and therefore rights of action arise on both sides; so that it is apparent that what was originally an act of generosity and good will is changed into mutual obligations and civil rights of action, as happens in the case of a party who has begun to attend to the business of someone who is absent; for he cannot allow the business to be neglected with impunity, since, if he had not undertaken it, perhaps someone else would have done so, for the assumption of a mandate depends upon the will, but to execute it is a matter of necessity. Therefore, if you lend me tablets in order that my debtor may give me security, you cannot properly demand that they be returned at an improper time; for if you had refused to lend them, I would either have purchased others, or have obtained witnesses. The same rule applies where you lent me timbers with which to prop up a house, and then removed them, or even knowingly lent me some which you knew to be decayed; for we should be benefited, and not deceived when a favor is granted. In instances of this kind it must be held that the counter action can also be brought. 4Where two articles have been lent, Vivianus states that the action on loan can properly be brought for either of them, and what Pomponius states would seem to be true, if they are separate; for where a party has lent, for instance, a chariot or a litter, he cannot properly bring an action for separate portions of the same. 5I lost an article which you lent me, and I gave you its value in lieu thereof, and then the article came into your hands. Labeo says that in a contrary action you must either deliver the property to me, or restore to me what you received from me.

Paulus, On the Edict, Book XXIX. Therefore, the same diligence which a careful head of a household is accustomed to exercise in his own affairs is required of the creditor.

Paulus, On the Edict, Book XXIX. Where a guardian pledges the property of his ward without violation of the law, the pledge must be upheld; that is, if he receives the money for the benefit of the ward. The same rule applies in the case of the curator of a minor or insane person. 1It is certain that the creditor is entitled to a counter action on pledge. Hence, if the debtor gives property belonging to another, or which is pledged to a third party or to the State, he will be liable, although he is also guilty of the crime of swindling. Is this the case only where he is aware of the facts, or also where he was ignorant of them? So far as the offence is concerned, ignorance will be a sufficient excuse; but, with reference to the counter action, Marcellus states in the Sixth Book of the Digest that ignorance does not excuse him. When the creditor knowingly receives property which belongs to some one else, or is pledged to another, or which is damaged, a counter action will not lie in his favor. 2Even land subject to a perpetual lease can be pledged as well as that whose surface only is involved; because, at present, equitable actions are granted to parties in whom surface rights are vested.

Paulus, On the Edict, Book XXIX. If you and I have agreed that a claim against a debtor of mine shall be pledged to you, this agreement must be sustained by the Prætor, so that he will protect you if you bring suit for the money, and the debtor if I bring suit against him. Therefore, if the obligation was a pecuniary one, you must set off your claim against the money collected; but if it was for any specific property, whatever you receive you will retain instead of a pledge. 1If the mere ownership is pledged, an usufruct which subsequently accrues will be included to the pledge, and the same rule applies to alluvial deposits. 2Ad Dig. 13,7,18,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 226a, Note 11.If real-property which is pledged is sold, the condition of the pledge still remains, since the land passes together with what is connected with it; as, for instance, in the case of a child born of a female slave after the sale has been made. 3Ad Dig. 13,7,18,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 2.Where a party has provided that a wood shall be pledged to him, Cassius says that a ship built of this material cannot be pledged by this agreement, because the material is one thing, and the ship another, and therefore in giving the pledge it should be expressly added, “Whatever is made of or derived from this wood.” 4Where a slave pledges property belonging to his peculium, the transaction must be sustained if he had the free management of the peculium; for he can also alienate such property.

Paulus, On the Edict, Book XX. The property of a third party can be given in pledge with the consent of the owner; and if it is given without his knowledge, and he ratifies the act, the pledge will be valid. 1Where property is pledged to several persons at the same time, they all have an equal right. 2Ad Dig. 13,7,20,2ROHGE, Bd. 20 (1877), Nr. 3, S. 7: Verzug des Pfandnehmers in Rückgabe des Pfandes als Folge der Weigerung der Annahme der Pfandschuld.If the creditor is to blame for not being paid, the action on pledge can properly be brought. 3Sometimes, even if the money has been paid, the action on pledge should be refused; for example, if the creditor had bought his pledge from the debtor.

Ad Dig. 14,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Paulus, On the Edict, Book XXIX. Nor does it make any difference what share each of them has in the vessel, for the party who paid will recover from the others in the action on partnership.

Paulus, On the Edict, Book XXIX. If you have, as the master of your ship, someone who is under my control, an action will also lie in my favor against you if I enter into any contract with him. The same rule applies where he is owned in common by us. You will, however, be entitled to an action on lease against me, because you hired the services of my slave, as, even if he had contracted with another, you could proceed against me to obtain a transfer of the rights of action which I held on his account, just as you could have done against a freedman had you employed one; but if the services were gratuitous, you can bring an action on mandate. 1Moreover, if my slave has control of a ship, and I make a contract with his shipmaster, there will be nothing to prevent me from instituting proceedings against the shipmaster by an action which I can bring either under Civil or Prætorian Law; for this edict does not prevent anyone from suing the master, as no action is transferred by this edict, but one is added. 2Where one of the owners of a ship makes a contract with the master, he can bring an action against the others.

Paulus, On the Edict, Book XXIX. Where a contract is made with the steward of anyone, an action is not granted against his master, for the reason that a steward is appointed for the collection of revenue, and not for profit. If, however, I have a steward who is also appointed for the sale of merchandise, it is not unjust that I should be liable to an action similar to the institorian one.

The Same, On the Edict, Book XXIX. Where a ship or a house has been purchased, the stones of the foundation and the different planks are not understood to have been separately bought; and therefore the vendor will not be liable on the ground of eviction, as he would be in case a portion of the ship or of the house had been recovered through proof of a better title.