Paulus, Questions, Book XV. When it is said that a father legally stipulates for his son just as he stipulates for himself, this is true so far as matters which can be acquired by the father under his right of paternal authority are concerned. Otherwise, the stipulation will be yoid if the act has reference to the son personally; as, for instance, if it provided that he should be permitted to hold property, or to enjoy a right of way. On the other hand, the son, by stipulating for his father to enjoy a right of way, acquires it for him; nay more, he acquires for his father what he himself cannot individually obtain.

Paulus, Questions, Book XV. Where anyone undertakes the care of the son of another, and promises the person who places him in his charge that he will pay a certain sum of money if he should treat him otherwise than as a son, and, after he had driven him from the house, or, at the time of his death, left him nothing by his will, I ask if the stipulation will become operative, and whether it makes any difference if the youth referred to is the son, the foster-child, or a relative of the stipulator. I ask, besides, if anyone should legally give his son in adoption, and the stipulation should have been made as above mentioned, and his adoptive father should disinherit or emancipate him, whether the stipulation will become operative? I answered that the stipulation is valid in both instances. Therefore, if anything is done in violation of the agreement, the stipulation will take effect. But in the case in which there was a lawful adoption, let us first consider whether suit can be brought if the individual disinherited or emancipated is an adopted son, for a father is accustomed to do these things with reference to his son, and hence he did not treat him otherwise than he might have done his own son. Therefore, he who was disinherited can bring an action on the ground of inofficiousness. But what shall we say if he deserved to be disinherited? It is clear that an emancipated son is not entitled to this remedy, hence the adoptive father should agree to pay a specified sum if he emancipated, or disinherited him. Still, in this case, if the stipulation became operative, it might be asked whether the disinherited son should be permitted to allege that the act was inofficious; especially if he was the natural heir of his father, and if he should lose his case, whether an action under the stipulation could be refused him. If, however, it should not be refused the stipulator, and the son should lose his case, he ought not to be denied the right to collect the money which was due. With reference to one who did not adopt him, I do not see how the following clause, “If he should treat him otherwise than as a son,” must be understood. Shall we, in this instance, require disinheritance or emancipation, acts which cannot be performed by a stranger? If he who adopted the son in accordance with law does nothing contrary to the terms of the stipulation, when he makes use of his right as a father, he speaks to no purpose when he refers to one who does not do this. Still, it may be said that the stipulation becomes operative. 1Where a son under paternal control stipulates as follows, “Will you be responsible for all the money which I shall lend to Titius?” and, after having been emancipated, he lends him money, his surety will owe nothing to the father, because the principal debtor is not liable to him.

Paulus, Questions, Book XV. A freeman who is serving me in good faith makes a stipulation with reference to my property, or his own labor, for the benefit of Stichus, who belongs to him. The better opinion is that he acquires for me, because if he was my slave he would acquire for my benefit, and it should not be said that he is, as it were, included in his own peculium. If, however, he should stipulate for Stichus, who belongs to me, with reference to my property, he will acquire for himself. 1The following case was stated by Labeo. A father, dying intestate, left a son and a daughter who were under his control. The daughter had always supposed that she would obtain nothing from her father’s estate, and, afterwards, her brother had a daughter, and, dying, left her in infancy. The guardians ordered a slave who had belonged to her grandfather to stipulate with a man who had sold the property of the grandfather’s estate for all the money which would come into his hands. I ask you to give me your opinion in writing as to whether anything was acquired for the female ward under the terms of this stipulation. Paulus: It is true that a slave who is possessed in good faith and stipulates with reference to the property of the master whom he serves acquires for his possessor. If, however, the property derived from the estate of the grandfather was owned in common, and formed part of the estate which was sold, the slave will not be held to have stipulated for the entire amount of the property belonging to the ward, and therefore he will acquire for both owners.

The Same, Questions, Book XV. If anyone should swear that he will give his services for a person who is not a freedman, and becomes his surety, he will not be liable. 1Likewise, when a son stipulates with his father, or a slave with his master, and a surety is accepted, he will not be liable; for no one can be bound to the same person for the same thing. On the other hand, when a fattier stipulates for his son, or a master for his slave, the surety will be liable. 2If you lend money belonging to another, as if it was your own, without any stipulation, Pomponius says that the surety will not be liable. But what if the money having been expended, the right to bring a personal action for recovery is established? I think that the security will be liable, for he is considered to have been accepted in order to be responsible for everything which might arise out of the payment of the money, 3A surety can be taken in an action of theft, and also for anyone who has violated the Aquilian Law. The rule is different in popular actions.

Paulus, Questions, Book XV. A certain man encumbered his property, and afterwards placed an additional lien on one of the tracts of land by promising it as a dowry for his daughter, and transferred it. If the latter should be evicted by the creditor, it must be held that the husband can proceed under the promise of the dowry, just as if the father had given, by way of dowry to his daughter, a slave who was to be free under a condition, or a legacy which had been conditionally bequeathed; for the delivery of these things cannot afford a release from liability, that is to say, except where they are certain to remain intact. 1A different opinion must be given with reference to the money or property which a patron, under the Favian Law, takes for himself after the death of his freedman; for this action, as it is recent, cannot revoke a release from liability when it has once been obtained. 2A minor of twenty-five years of age, who has been deceived by his creditor, is entitled to the benefit of this rule, and can obtain restitution of whatever he has paid on account of his debt. 3Where a father pays money belonging to a castrense peculium, we must understand this to be just as if he had made payment with what belonged to another; although it can remain in the possession of him to whom it was paid, if the son should die first, and intestate. But it is considered to be acquired only when the son dies, and the event has declared to whom it belongs. This is one of the cases in which matters, which subsequently occur, show what has previously happened. 4I can make a valid stipulation for ten aurei to be paid to me or to Titius absolutely on the Kalends; or conditionally to me on the Kalends of January, or to Titius on the Kalends of February. A doubt may arise as to its validity if it is to be paid to me on the Kalends of February, and to Titius on the Kalends of January. It is better, however, to say that the stipulation is valid, for as this stipulation has reference to a fixed time, payment cannot be made to me before the Kalends of February; and therefore payment can also be made to him. 5Where anyone stipulates for himself or for Titius, and says that if you do not pay Titius, you must pay him, he is held to have stipulated conditionally. Therefore, even if the stipulation was made as follows, “Do you stipulate to pay me ten aurei, or Titius five?” and five are paid to Titius, the principal debtor will be released, so far as the stipulator is concerned. This can be admitted if it was expressly understood a penalty should, so to speak, be imposed upon the promisor, if payment was not made to Titius. But where anyone stipulates simply for himself, or for Titius, Titius is only added for the sake of payment; and therefore where five aurei have been paid to him, the other five still remain in the obligation. And, on the other hand, if I stipulate for five aurei to be paid to me, and ten to be paid to him, and five are paid to Titius, the terms of the stipulation do not permit me to be released. Moreover, if he pays ten, and does not demand that five be refunded, ten will be due to me in an action on mandate. 6I stipulate for payment to me at Rome, or to Titius at Ephesus. Let us see whether, by payment to Titius at Ephesus, the debtor will be released from liability to me. If these are different acts, as Julianus thinks, the question is not the same. For, as the debtor is released on account of payment, which is the principal thing, he will be released, even if I should stipulate that Stichus be given to me, and Pamphilus to Titius, and he delivers Pamphilus to Titius; but when I stipulate merely for an act, for instance, for the construction of a house on my ground, or on that of Titius, if he builds on the ground of Titius, will not a release take place? for no one has said that, where one act is given for another, a release takes place. The better opinion is that, in this instance, it does take place, because one act is not considered to be performed for another, but the choice of the promisor is carried out. 7When a slave, subject to an usufruct, stipulates with reference to the property of the usufructuary, or for the benefit of the owner of the property, or for that of the usufructuary himself, the stipulation is void. But if he stipulates with reference to the property of the owner, for the benefit of the latter, or for that of the usufructuary, the stipulation will be valid; for, in this instance, the usufructuary can only receive payment, but cannot acquire any obligation. 8I promised land belonging to another, and the owner built a house on this land. The question arises whether the stipulation is extinguished. I answered that if I promised the slave of another, and he should be manumitted by his master, I will be released. The statement of Celsus is not accepted; that is to say, if the same slave should again be reduced to servitude by any law whatever, he will be considered as another slave. And he does not make use of a similar argument when he says that if, after you have promised a ship, the owner of the same ship should take it apart, and afterwards rebuild it with the same materials, you will be liable for it. For, in this instance, the ship is the same which you have promised to furnish, so that the obligation seems rather to have been suspended than extinguished. This case would be similar to that of the manumitted slave, if you suppose the ship to have been taken apart with the intention of converting the materials of which it was composed to other uses, and then the owner having changed his mind, they have been put together again. For this last ship seems to be a different one, just as the slave appears to be another man. The ground, however, on which the house was built causes a distinction to arise, for it does not cease to exist; and further, it can be claimed and its appraised value be paid, for the land is a part of the house, and, indeed, the greater part of it, since even the surface belongs to it. A different opinion, however, must be given if the slave who was promised should be captured by the enemy, for under these circumstances he cannot be claimed, just as if the time for doing so had not yet arrived; but if he should return under the law of postliminium, he can then lawfully be claimed, for this obligation remains in suspense, but the land continues to exist, just as all the other materials of which the building is composed. Finally, the Law of the Twelve Tables provides that a person can recover timbers fastened to his house, but, in the meantime, it prohibits them from being removed, and directs that their appraised value should be paid.

The Same, Questions, Book XV. In all matters, and especially in those relating to the law, equity must be considered.