Paulus, Questions, Book III, For where anyone has interred a body with the intention of subsequently removing it to some other locality, and preferred to deposit it there for a time rather than to bury it permanently, or to provide, as it were, a last resting place for it; the place will remain profane.

Paulus, Questions, Book III. Where interment is made in different places, both of them do not become religious, for the reason that two sepulchres are not created by the burial of one person; but it seems to me that place should be religious where the principal part of the body is laid; that is to say, the head, whereof a likeness is made by means of which we are recognized. When, however, permission is obtained for remains to be removed, the place ceases to be religious.

Paulus, Questions, Book III. There was read in the court of Æmilius Papinianus, Prætorian Prefect and Jurist, an obligation of the following kind: “I, Lucius Titius, have stated in writing that I received from Publius Mævius fifteen aurei as a loan which was paid to me at his house, and Publius Mævius stipulated, and I, Lucius Titius, promised that the said fifteen aurei in current coin shall be duly paid on the next kalends. If on the day aforesaid the said sum shall not have been paid to the said Publius Mævius, or to whomsoever has a right to the same, nor any security has been given on account of it; then, for the time that has elapsed after payment was due, Publius Mævius stipulated and I, Lucius Titius promised that there should be paid by way of penalty, for every thirty days and for every hundred denarii one denarius. It was also agreed between us that I should be obliged to pay to the said Publius Mævius out of the sum aforesaid three hundred denarii of the entire sum every month, either to him or to his heir.” A question arose with reference to the obligation to pay interest, as the number of months specified for payment had elapsed? I stated that, as an agreement entered into at the same time is held to be a part of the stipulation, the result is that it is the same as if the party having stipulated for the payment of a certain sum of money every month, had later added an agreement for interest in proportion to the delay in the payments; and therefore interest on the first payment would begin to run at the end of the first month, and, likewise, after the second and third months, interest on the unpaid money would increase, but interest could not be collected on the unpaid principal until it could itself be collected. Some authorities say that the agreement which was added only relates to the payment of the principal and not to the interest as well, since the latter had been plainly provided for by the stipulation in the former clause, and that the agreement would only admit of an exception; hence, if the money was not paid at the times indicated, the interest would be due from the date of the stipulation, just as if this had been expressly stated. But where the time for collecting the principal has been deferred, the result will be that interest also will accrue from the day when the party was in default; and if, as the said authorities held, the agreement would only render an exception available (although a different opinion afterwards prevailed), still, according to law, the obligation to pay interest could not be enforced; for a party is not in default where the money cannot be collected from him, because he can plead an exception in bar to the claim. When, however, we stipulate for a certain quantity to be furnished where a condition is to be fulfilled, and it is collected in the meantime, as, for instance, where crops are concerned; the same provision may also be made with reference to interest, so that if the money is not paid by the specified day, what is due by way of interest may be paid from the day when the stipulation was entered into.

Paulus, Questions, Book III. If you should promise Titius anything for an immoral consideration, you can bar him by an exception on the ground of malicious contrivance, or in factum; nevertheless, if you give it, you cannot bring an action for its recovery; since the more recent event, that is to say the stipulation, is disposed of, having been made of no effect by reason of the exception, and the former event, that is to say the immorality, remains. And, moreover, if the position of both the giver and the receiver is immoral, that of the possessor is preferable; and hence an action for recovery will not lie, although the money was paid on account of the stipulation.

Paulus, Questions, Book III. It is evident that where you state that there are two parties bound by the same obligation, not for the payment of the same sum of money but for the performance of some other act; for instance, the delivery of Stichus or Pamphilus, and the two were delivered together—or perhaps a toga, or a thousand denarii—it cannot be said that the same rule applies with respect to an action for recovery, that is that they can bring an action for separate shares; because in the beginning they could not have discharged the obligation in that way. Therefore in this case the creditor has the right to elect to which of the parties he will make the delivery, in order that the other may be prevented from bringing suit.

Paulus, Questions, Book III. Ad Dig. 12,6,60 pr.ROHGE, Bd. 22 (1878), Nr. 22, S. 99: Bedeutung eines den Debitor absolvierenden Erkenntnisses für die condictio der vorhergezahlten Schuld, wenn das absolvirende Erkenntnis auf Versehen des Gläubigers beruht.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7.Julianus denied that a debtor who actually owed money could bring an action for its recovery after issue had been joined and while the suit was still pending; because he could not bring the action if he was discharged, or if judgment was rendered against him, for, even though he were discharged, he would still remain a debtor by natural law; and he states that his case would be similar to that of a party who promised that he would pay whether a certain ship came, or did not come from Asia, since occasion for payment arises from either ground. 1Where, however, a party who owes money absolutely, promises to pay it under a certain condition, with a view to renewal; many authorities hold that, if the money is paid while the renewal is pending, an action can be brought for its recovery, because it is still uncertain under which obligation he makes payment; and they hold that the same rule applies if we suppose that two different persons promise the same money, one absolutely, and the other under some condition, with the intention of renewing the contract. The cases, however, are not similar; as in that of the absolute and conditional stipulation, it is certain that the same party will be indebted.

Ad Dig. 13,7,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. I, § 230, Note 9.Paulus, Questions, Book III. You gave the property of another in pledge, and afterwards you became the owner of the same; an equitable action on pledge is granted to the creditor. The same rule does not apply, if I become the heir of Titius who encumbered my property without my consent; for, under these circumstances, the right of recovery of the pledge is not granted the creditor; nor, by any means, is it sufficient, in order to render the equitable action on pledge applicable, that the owner should be the same party who also owes the money. But if he had agreed with respect to the pledge, so that his deceit can be established, he cannot properly resist the bringing of an equitable action against him.

Paulus, Questions, Book III. Therefore, in this instance, judgment will be rendered against him for the entire amount, and not for what he is able to pay.

Paulus, Questions, Book III. Where a legacy was left to a son under paternal control on a certain condition, his father received his own property from the heir by way of pledge. The father being dead, or the son emancipated, and the condition upon which the legacy was based having been fulfilled, the legacy becomes due to the son. The father could not legally bring an action to recover the pledge, nor could the son, who had now begun proceedings for that purpose, do so; nor could he have any right to the pledge which was acquired during the preceding time; just as has been stated in the case of a surety.

Ad Dig. 20,3,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Noten 4, 10.Paulus, Questions, Book III. Aristo wrote to Neratius Priscus that even where a contract was made with a party to whom money was loaned to be paid to another on behalf of the creditor, he would not succeed to the right of pledge, unless he expressly agreed that the same property should be encumbered to him; for the second creditor should not succeed to the rights of the first, who himself made no agreement with reference to a pledge; and, in this instance, the position of the purchaser becomes preferable. Finally, if the first creditor contracted with the debtor with reference to the sale of the pledge, and the second one neglected to secure the same privilege of sale, not through forgetfulness, but because it was understood that the pledge could not be sold; let us see if the right of the first creditor will pass to the second so as to permit him to sell the pledge. I think that this should be admitted, for it often happens that a person can claim by means of a third party something to which he is not personally entitled.

Ad Dig. 20,4,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 247, Note 2.Paulus, Questions, Book III. Claudius Felix hypothecated the same tract of land to three different persons, first to Eutychiana, then to Turbo, and finally to a third creditor. Eutychiana having been sued by the third creditor, contended for her rights in court, and having been defeated did not appeal, while Turbo, who also lost his case before another judge, appealed. The question arose whether the third creditor, who had obtained a judgment against the first, should also defeat Turbo, or if she were removed from the case, whether Turbo ought to take preference over the third creditor. It is clear that when the third creditor pays the first one out of his own money, he will be subrogated to him to the amount which he paid. There were some authorities who held that, in this instance also, the third creditor should be entitled to the preference, but this does not seem to me to be at all just. For, suppose that the first creditor had brought an action against the third, and had been defeated by means of an exception, or in some other way, could the third creditor who had defeated the first avail himself of an exception on the ground of a judgment rendered against Turbo, who had lent the money in the second place? Or, on the other hand, if, after the first decision by which the first creditor had been defeated by the third, the second creditor should obtain a judgment in his favor against the third, could he avail himself of an exception, on the ground of a decision rendered, against the first creditor? By no means, in my opinion; and therefore the third creditor is not subrogated to the first whom he defeated, for where a matter has been decided between two parties, it can neither benefit nor injure a third, but his entire right remains unimpaired to the second creditor, without any prejudice resulting to the first decree.

Paulus, Questions, Book III. The question arose whether the debtor would be released where the creditor could not obtain the price of the pledge from the purchaser. I think that if the creditor was in no way to blame, the debtor would still remain liable; because a sale does not necessarily release the debtor, unless the purchase-money was received. 1Moreover, Pomponius says in the Second Book of Extracts that, where pledges are given it is customary to add, namely, that when a pledge is sold and the price does not satisfy the claim, the debtor must make up the deficiency, is superfluous; because this takes effect by operation of law, and therefore should not be added.

Paulus, Questions, Book III. A debtor sold a pledge with the consent of his creditor, and afterwards it was agreed between him and the purchaser that the sale should be rescinded. The right to the pledge remained unimpaired with the creditor, for just as the former rights were restored to the debtor, so also were they restored to the creditor. For the creditor did not absolutely release his claim to the pledge, but only to the extent that the purchaser should retain the property, and not return it to the vendor. Therefore, if in the course of judicial proceedings, the vendor should be discharged, or if judgment should be rendered against him to the amount of the purchaser’s interest, because he did not deliver the property, it must be held that the right of the creditor to the pledge will remain unimpaired; for this may happen even where the property was not sold with the consent of the creditor. 1Where, also, a creditor sells a pledge, and the sale is rescinded, or the slave which was the object of it is returned as unsound, the ownership reverts to the debtor. The same rule applies in all cases in which permission is given to sell property belonging to another, for the parties do not receive their rights from the hands of the purchaser, merely because they have transferred the ownership, but the property returns to its former condition, when the sale is rescinded.

Ad Dig. 22,3,25ROHGE, Bd. 21 (1877), Nr. 84, S. 261: Folgen leichtsinnigen Leugnens.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 10-25.Paulus, Questions, Book III. Ad Dig. 22,3,25 pr.ROHGE, Bd. 23 (1878), Nr. 107, S. 319: Begründung der cond. indeb. Beweis des Irrthums und dessen Entschuldbarkeit.Where a question arises with reference to money which is not due, who must prove this? The matter should be adjusted so that if he who is said to have received the property denies that the money is not owing, and he who paid it proves its payment by competent evidence, then he who denies absolutely that he received the money, if he wishes to be heard, must be compelled to furnish proof that the money was lawfully due to him; for it would be absurd if he who, in the beginning, denied that he had received the money, and afterwards was shown to have received it, should require proof from his adversary that it was not owing to him. If, however, in the first place, the plaintiff should acknowledge that he had received the money, but should assert that it was due to him, the presumption undoubtedly will lie in favor of the party who received it, for he who pays is never so negligent as to throw away his money without hesitation, and pay it when it is not due; and especially is this the case where the party who alleges that he paid what was not due is the diligent and careful head of a household, for it is incredible that a person of this kind should be so easily deceived. Therefore he who alleges that he has paid money which was not due will be required to produce evidence that the said money was paid through the fraud of the party who received it, or on account of some just cause of ignorance, and unless he shows this he will have no right to recover it. 1Where, however, he who complains of the payment of money which was not due is a ward, a minor, or a woman, or, indeed, a man of full age but a soldier, or a cultivator of the soil and inexperienced in public business, or fond of a simple life and given to idleness; then he who receives the money must show that he actually did so, and that it was due and payable to him, and if he fails to do this he must refund it. 2This only applies where the party who paid the money contends that the entire sum was not due. Where, however, he complains of the payment of only a portion, on the ground that only a part of the money paid was not due; or that it was due in the beginning, but the debt was afterwards discharged, and he ignorantly paid it a second time; or that, being protected by an exception, he paid the money through mistake; he, himself, must, by all means, establish that he either paid more than was due, or that he paid money a second time through mistake, or that, being protected by an exception, he ignorantly paid the money; in accordance with the general rule which requires those to furnish proof who state that they have exceptions to offer, or who allege that they have paid the debt. 3In all the instances which we have suggested, permission should be granted to him upon whom rests the burden of proof to tender the oath to his adversary, with reference to the truth of the matter, before tendering him the oath pro calumnia; so that the judge may regulate his decision according to the confidence which he has in the oath of the plaintiff, the right to the defendant to tender the oath back to his adversary being reserved. 4Ad Dig. 22,3,25,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 318, Note 4; Bd. II, § 412b, Note 2.This point relates to the payment of money which is not due. Where, however, a written promise to pay is said to have been made for money which is not due, and the terms of the instrument are indefinite, then the party in whose favor the note was executed will be compelled to prove that the sum mentioned in it is due to him, unless he who made the note has explicitly stated his reasons for doing so; for then he must abide by his admission, unless he is ready to show by conclusive documentary evidence that he made the promise to pay money which he did not owe.

The Same, Questions, Book III. Where I stipulate as follows, “If Titius should become Consul, do you then promise from that day to pay ten aurei every year?” If the condition is fulfilled after three years, thirty aurei can be demanded. 1Titius stipulated with Mævius for a tract of land, with the reservation of its usufruct, and also for the usufruct of the same land. There are two stipulations, and there is less in the usufruct which anyone promises by itself than there is in that which accompanies the ownership. Finally, if the promisor should give the usufruct, and the stipulator should lose it by non-user, and afterwards convey the land with the reservation of the usufruct, he will be released from liability. The same thing, however, does not happen in the case of one who promises the land without any reservation, and conveys the usufruct, and afterwards, having lost the usufruct, conveys the ownership of the land without it; for, in the first instance, he will be released by the transfer of the usufruct, but, in the second, he will be discharged from no part of the obligation, unless he conveys the land, with all the rights attaching thereto, to the stipulator. 2“I, Chrysogonus, the slave of Flavius Candidus, and his agent, have stated in writing, in the presence of my master, who has also subscribed and sealed this instrument, that, having received a thousand denarii as a loan from Julius Zosa, the agent of Julius Quintillianus, who is absent, the said Zosa, freedman and agent of the said Quintillianus has stipulated that the said money shall be paid to Quintillianus, or his heir, entitled to the same, upon the next Kalends of November; and my master, Candidus, has promised, and Julius Zosa has stipulated, that if the money is not paid on the day aforesaid, interest shall be due at the rate of eight denarii for the time during which the sum remains unpaid. Flavius Candidus, my master, has given this promise, and has signed this instrument.” I gave it as my opinion that we cannot acquire any obligation by means of any free person who is not subject to our authority, or does not serve us in good faith as a slave. It is clear that if a freeman pays a sum of money in our name, which either belongs to him, or to us, in order that it may be paid to us, he acquires for us the obligation of a loan; but what a freedman stipulates to be paid to his patron is void, so that he does not benefit a person who is absent and is intended to be made the principal creditor, even to the extent of receiving payment. It remains to be ascertained whether, after the money has been counted, the contracting party can collect the sum which was lent; for whenever we loan money, and stipulate for the same money, two obligations are not created, but only a single verbal one. It is clear that if the coins were counted first, and the stipulation followed, it cannot be said that the natural obligation was departed from. Where the stipulation follows, and interest is agreed upon without mentioning the name of the person entitled to it, this has not the same defect; but it must not be considered to the detriment of the patron to hold that the freedman has stipulated for interest for the benefit of him who is entitled to the principal; and hence the stipulation for interest will profit the freedman, but he will be compelled to surrender it to his patron; for, as a rule, in stipulations the words from which the obligation arises should be considered. Rarely does the intention appear to include a time or condition, and it never includes a person, unless this is expressly stated. 3If I stipulate for you to appear in court, and, if you do not do so, that you shall give something which is impossible for the promisor to furnish; the second stipulation is omitted, and the first one remains valid, and it will be just the same as if I had merely stipulated for you to appear in court.

Paulus, Questions, Book III. If the creditor who received a surety for money lent is deceived in the contract of pledge, he can bring the contrary action on pledge; and, in this action, his entire interest will be included. This proceeding, however, does not affect the surety, for he has become responsible, not for the pledge, but for the money loaned.

Paulus, Questions, Book III. Titius, who owed me money, the payment of which was secured by pledges, and who was, at the same time, a debtor of the Treasury, paid me what he owed me, and the Treasury afterwards, taking advantage of its right, deprived me of the money. The question arose whether the pledges should be released. Marcellus very properly thinks that if the Treasury deprived me of what I had been paid, the release of the pledges would not take place. I do not think that the distinction of those who hold that it makes a difference whether the identical money Jpaid, or a sum equal to it was recovered, should be admitted.

The Same, Questions, Book V. When more is paid than is due, and it is not possible to deduct the surplus, the entire debt is understood to be unpaid, and the former obligation will continue to exist. 1He in whose honesty we have confided owes by natural law what he owes by the Law of Nations.