Ad Quintum Mucium libri
Ex libro XV
Dig. 45,1,112Idem libro quinto decimo ad Quintum Mucium. Si quis stipulatus sit Stichum aut Pamphilum, utrum ipse vellet: quem elegerit, petet et is erit solus in obligatione. an autem mutare voluntatem possit et ad alterius petitionem transire, quaerentibus respiciendus erit sermo stipulationis, utrumne talis sit, ‘quem voluero’ an ‘quem volam’: nam si talis fuerit ‘quem voluero’, cum semel elegerit, mutare voluntatem non poterit: si vero tractum habeat sermo illius et sit talis ‘quem volam’, donec iudicium dictet, mutandi potestatem habebit. 1Si quis ita stipulatus fuerit: ‘pro centum aureis satis dabis?’ et reum dederit in istam summam: Proculus ait semper in satisdationis stipulatione venire, quod interesset stipulantis, ut alias tota sors inesset, veluti si idoneus promissor non sit, alias minus, si in aliquid idoneus esset debitor, alias nihil si tam locuples esset, ut nostra non intersit satis ab eo accipere: nisi quod plerumque idonei non tam patrimonio quam fide quoque aestimarentur.
The Same, On Quintus Mucius, Book XV. If anyone stipulates for “Stichus or Pamphilus, whichever one he pleases,” he can demand either one that he selects, and he alone will be included in the obligation. If, however, it is asked whether he can change his mind, and demand the other, the terms of the stipulation must be examined in order to ascertain whether its terms are expressed as follows: “The one whom I would have chosen,” or “The one whom I may choose.” If the first of these was employed, the stipulator cannot change his mind after he has once made his selection; but if the words admit of discussion, and are, “The one whom I may choose,” he is at liberty to change his mind until he has made his final decision. 1If anyone stipulates as follows, “Will you give me security for a hundred aurei?” and he gives a surety for this amount; Proculus says that the interest of the stipulator is always considered in the agreement for security, as sometimes this extends to the entire principal, as, for instance, where the promisor is not solvent, and sometimes to less, where the debtor is only partly solvent; and again it amounts to nothing, if the debtor is so wealthy that we have no interest in requiring security from him; but in estimating the solvency of the persons, their integrity, rather than the value of their property, should be taken into consideration.