Ulpianus, Disputations, Book VII. A compromise is valid even after judgment has been rendered, if an appeal has been, or can be taken. 1Where a surety was sued, and judgment rendered against him, and afterwards the principal made a compromise with the party who obtained the judgment against the surety; the question arises, was the compromise valid? I am of the opinion that it was, and that every cause of action against both principal and surety was removed. If, however, the surety himself made the compromise after he lost his case, while the judgment was not annulled by the compromise, still, it should be considered as settled, so far as anything which was paid is concerned. 2It is so true, however, that what was paid in this case even though it does not dispose of the compromise still diminished the amount of the judgment, that it may be held, and it is, in fact, contained in a rescript in a case where a compromise was entered into without permission of the Prætor, that what had been paid should be applied to the furnishing of maintenance, and whatever, in addition, was due on account of maintenance must be provided, but what had already been paid should be credited.

Ulpianus, Disputations, Book VII. Or if he is about to depart on a long journey, or any other good reason should be advanced;

Ulpianus, Disputations, Book I. Ad Dig. 12,1,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 5.If I give you money as a present, and you accept it as a loan, Julianus says that it is not a present; but we should consider whether it is a loan. I think, however, that it is not a loan, and that the money does not, as a matter of fact, become the property of the party who receives it, as he did so with a different opinion. Hence, if he spends the money, although he is liable to a personal action for its recovery, he can, nevertheless, make use of an exception on the ground of fraud, because the money was expended in accordance with the wish of the party who gave it. 1Where I give you money as a deposit, and you accept it as a loan, it is neither a deposit nor a loan; and the same rule applies where you give money as a loan to be consumed and I accept it as a loan to be used for the purpose of ostentation; in both instances, however, if the money is expended, there will be ground for a personal action for recovery without an exception based on fraud.

The Same, Disputations, Book VII. Ad Dig. 17,1,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 101, Note 10.Where suit has been brought against a surety, and he, not being aware that the money has not been actually delivered to the debtor, makes payment on account of his suretyship; the question arises whether he can recover the amount that he has paid in an action on mandate? And if, indeed, being aware of the facts, he neglects to file an exception on the ground of fraud, or because the money was not paid, he will be held to have participated in the fraud, for gross negligence very nearly resembles fraud. Where, however, he was ignorant of the facts, no responsibility can attach to him. On the same principle, if a debtor is entitled to an exception, for instance, on the ground of an agreement, or for some other reason, and he, not knowing this, does not avail himself of this exception; it must be said that he will be entitled to an action on mandate, for the principal debtor could have warned his surety, and ought to have done so, in order to prevent him from ignorantly paying what was not due. 1It is a point susceptible of discussion, where a surety, not being aware that he has bound himself illegally, makes payment, whether he will have an action on mandate? If, indeed, he was ignorant of the facts, his ignorance will be an excuse, but if he was ignorant of the law the contrary opinion must be held. 2If the surety, not being aware that the debtor has paid, makes payment himself, I think that he will be entitled to an action of mandate; for he should be excused if he had not divined that the debtor has paid, for the latter should notify his surety as soon as he has paid, to prevent the creditor from overreaching him, and, by taking advantage of his ignorance, obtain from him the amount for which he became surety. 3Ad Dig. 17,1,29,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 101, Note 10.This also should be discussed with reference to the surety, namely: if when he paid he did not notify the principal debtor, and the latter then satisfied the obligation, which he should not have done. I think that when he could have notified him, and did not do so, if the surety brings suit on mandate he should be barred; for if he did not notify the debtor after he made payment, he is guilty of an act resembling fraud. Moreover, the principal debtor should assign his right of action to the surety, to prevent the creditor from receiving double payment. 4Even though the surety should fail to perform certain acts, he is not guilty of fraud; as, for example, where he neglects to avail himself of an exception based on agency, whether he knew, or was ignorant of his right. For, in this instance, good faith is concerned, and it is not agreeable to it, to quibble concerning nice distinctions of the law, but only to ascertain whether the party is a debtor or not. 5In all the examples above mentioned, where the creditor has received money which was not actually lent to the debtor, or has been paid a second time, an action for recovery will lie against him, unless the money was paid to him on a judgment; for, in this instance, an action for recovery will not lie on account of the authority of the judgment, but he himself, because of his duplicity, should be punished for the crime of swindling. 6If a surety who is released by lapse of time, nevertheless, pays the creditor, he will legally be entitled to an action against the principal debtor; for, although he has already been released by keeping faith, he has released the debtor. Therefore, if he is ready to defend the principal debtor against his creditor, it is perfectly just that he should recover what he paid by an action on mandate. And this opinion was also held by Julianus.

The Same, Disputations, Book VII. Where anyone sells property at a low price for the purpose of making a donation of the same, the sale will be valid; for we hold that a sale made of the entire amount of anything is not valid where this is done solely for the sake of making a donation, but when the property is sold at a lower price on account of a donation, there is no doubt that the sale will be valid. This rule applies to transactions between private individuals; but when a sale is made at a low price on account of a donation between husband and wife, it is of no force or effect.

The Same, Disputations, Book VII. Where the government expressly takes property by way of pledge, it must be said that it will be preferred to the Treasury, if the debtor afterwards becomes bound to the Treasury; because private individuals would, in an instance of this kind, be preferred.

The Same, Disputations, Book VII. It must be said, with reference to exceptions, that the defendant is required to perform the part of plaintiff, and he himself prove his exception, just as the plaintiff must prove his claim; for instance, where he pleads an exception on the ground of a contract entered into, he must show that the contract was actually made. 1Where anyone who promised to appear in court alleges as a reason for not doing so that he has been absent on public business, or that some malicious act of his adversary prevented him from appearing, or his health, or a storm hindered him, he must prove it. 2Where a party makes use of an exception on the ground that the appointment of the attorney of his adversary is not valid, because his adversary could not appoint, or be appointed an attorney, he must prove the truth of the exception which he has interposed. 3The same rule will apply where suit is brought for a sum of money which is alleged to have been paid. 4Again, where an exception is pleaded on the ground of a decision rendered; or because an oath is said to have been tendered with reference to the property for which suit now is brought, or because the matter in controversy has reference to a game of chance, the party who filed the exception must prove all these allegations.

Ad Dig. 39,5,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 7.The Same, Disputations, Book VII. A certain person, who desired to make a donation to me, delivered the property to a slave jointly owned by Titius and myself, and the slave received it as an acquisition for my fellow joint owner, or did so on behalf of both of us. The question arose, what should be done? It was decided that although the slave accepted the property with the intention of acquiring it for my fellow joint owner, or for both himself and me, he, nevertheless, acquired it for me alone. For if he delivered it to my agent, with the intention that he should acquire it for me, and he accepted it in order to obtain it for himself, this will have no effect so far as he is concerned, but he will acquire the property for me.

The Same, Disputations, Book VII. If my agent, or the guardian of a ward, delivers his own property as belonging to me, or to the ward, to another, he will not be deprived of the ownership of the same, as the alienation is void, because no one can lose his property through a mistake.

Ulpianus, Disputations, Book VII. Ad Dig. 41,2,34 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 76a, Noten 4, 5.If you place me in full possession of the Cornelian Estate, and I think that I am placed in possession of the Sempronian estate, but enter upon the Cornelian estate, I do not acquire possession unless we are only mistaken in the name, and agree with reference to the property. Since, however, we agree with reference to the property, a doubt may arise whether you do not lose possession; because Celsus and Marcellus say that we can lose and change possession merely by intention. And if possession can be acquired by intention, can it also be acquired in this instance? I do not think that a person who is mistaken can acquire it. Therefore, he who only relinquishes possession, as it were conditionally, does not lose it. 1Ad Dig. 41,2,34,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 21; Bd. I, § 155, Note 10.If, however, you deliver possession, not to me but to my agent, it should be considered whether possession will be acquired by me if I make a mistake, but my agent does not. As it is held that it can be acquired by a person who is ignorant of the facts, it can also be acquired by one who is mistaken. But if my agent is mistaken, and I am not, the better opinion is that I will acquire possession. 2My slave also acquires possession for me without my knowledge. For even a slave belonging to another, as Vitellius says, can acquire possession for me, if he takes the property in my name, whether he is possessed by me or by no one at all. This also should be admitted.

The Same, Disputations, Book VII. Property which has been taken in execution and sold can be recovered, if this was done without a judgment having been previously rendered.

Ad Dig. 44,7,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 26.The Same, Disputations, Book VII. Slaves are responsible for their crimes, and remain so even after their manumission; they are not, however, civilly liable for their contracts, still, they are bound, and they bind others in accordance with natural law. Finally, I shall be released from liability if, after a slave has been manumitted, I pay him a sum of money which he has lent me.

The Same, Disputations, Book VII. In conventional stipulations the contracting parties prescribe the form of the agreement; but prætorian stipulations are governed by the intention of the Prætor who introduced them. Finally, it is not permitted to change anything in prætorian stipulations, or to add to, or take anything from them. 1If anyone promises to deliver a vacant possession, this stipulation, does not include a bare fact, but also has reference to the condition of the property.

Ulpianus, Disputations, Book VII. When a creditor doubts whether the sureties are solvent, and one of them, who is selected by him to be sued, is ready to give security, so that his fellow-sureties may be sued for their shares at his risk, I hold that he should be heard; but only provided he offers security, and that all his fellow-sureties who are said to be solvent are at hand. For the purchase of the claim is not always easy when the payment of the entire debt is not free from difficulties. 1The action is divided between the sureties, where they do not deny their liability. For, if they do deny it, the benefit of division should not be granted. 2A son under paternal control can give security for his father, and his act will not be without effect. In the first place, because, when he becomes his own master, he can be held liable to the extent of his means; and, besides this, judgment can be rendered against him, even if he remains subject to his father’s authority. Let us see, however, whether his father will be liable for the reason that he is held to have acted by his order. I think that this rule is applicable to all contracts; but if he became surety for his father without the knowledge of the latter, this action will not lie; still suit can be brought against his father on the ground that the proceeding was for the benefit of his property. It is clear that, if the emancipated son has paid the debt, he should be entitled to an equitable action, and the same action can be brought by him if he remains under the control of his father, and has paid the money for the latter, out of his peculium castrense.

The Same, Disputations, Book VII. Whenever anything which is absolutely due is promised conditionally, for the purpose of creating a novation, the novation does not take place immediately, but only after the condition has been complied with. Therefore, if Stichus should happen to be the subject of the obligation, and should die while the condition is pending, the novation will occur, because the property, which was the object of the stipulation, was not in existence at the time when the condition was fulfilled. Hence Marcellus thinks that, even if Stichus was included in the conditional obligation, after he who promised him was in default, the default will be purged, and Stichus will not be included in the ensuing obligation. 1Ad Dig. 46,2,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 3.But where anyone, for the purpose of making a novation, stipulates absolutely for something which is due under a condition, he does not immediately create the novation, although an absolute stipulation seems to produce some effect, but the novation takes place when the condition is fulfilled. For a condition, once having been complied with, renders the first stipulation operative, and transfers it to the second. Therefore, if the promisor should be deported while the condition is pending, Marcellus says that novation will not take place, even if the condition is fulfilled, because there is no one who will be liable when this occurs.

The Same, Disputations, Book VII. A great difference exists between artisans with respect to their talents, character, knowledge, and education. Therefore, if anyone promises to build a ship, or a house, or to excavate a ditch, and it is specially agreed that he shall do this with his own worktnen, and the surety himself constructs the building, or makes the excavation, without the consent of the stipulator, the debtor will not be released from liability. Hence, even if the surety should add the following clause to the stipulation, “Nothing shall be done by you to interfere with my right of way,” and the surety prevents me from passing, he does not render the stipulation operative; and if he permits the servitude to be enjoyed, he does not hinder the stipulation from taking effect.

Ulpianus, Disputations, Book VII. Where a release is granted to one of several persons, who are liable, he alone will not be released, but also all of those who are liable with him; for whenever a release is granted to one of two or more persons who are liable under the same obligation, the others are also discharged, not because the release was granted to them, but because he who was freed from liability by the release was considered to have paid the debt. 1If a surety is granted for the payment of a judgment, and a release is given him, the person against whom the judgment was rendered will also be discharged from liability.

Ulpianus, Disputations, Book VII. When a stipulation is made for the payment of a judgment, and the party does not defend the case, and afterwards he suffers judgment to be taken by default, the question arises, does the clause having reference to the judgment become operative? I said that the clause in the stipulation contained two things: one relating to the defence of the case, and the other to the judgment. Therefore, as the stipulation with reference to the payment of the judgment includes everything in one clause, if a decision is rendered, or the case is not decided, the question is very properly asked whether, for one of these reasons, the stipulation will become operative with reference to the other clause. For example, if anyone should stipulate, “If a ship should arrive from Asia,” or, “If Titius should become Consul,” it is established that no matter whether the ship arrives first, or Titius first becomes Consul, the stipulation will become operative. Where, however, it takes effect on account of the first clause, it cannot do so on account of the second, even though the condition may be complied with; for it is one of the clauses, and not both of them, which renders the stipulation operative. Hence it should be considered whether the stipulation having reference to the failure to defend the case will take effect, if this is not done; or whether one must believe that it does not become operative before issue is joined. The latter opinion is the better one; hence the sureties do not appear to be liable the very moment that the action is not defended. Therefore, if a case in which a defence is necessary should be terminated either by payment, by compromise, by a release, or in any other way, it has been decided that, in consequence, the clause that has reference to the failure to defend the case ceases to have any effect. 1If I, being about to bring an action in rem, should stipulate with the surety of an attorney to pay a judgment, and I afterwards intend to bring one in personam, but before doing so, I resolve to bring another, the stipulation will not take effect; because it appears that what has been done has reference to one thing, and the stipulation entered into has reference to another.