The Same, On the Edict, Book LXXVII. It is agreed by all authorities that where an heir is appointed under a condition, and has possession of the estate during the existence of the condition, he must give security to the substituted heir for the delivery of the estate. If the condition should not be fulfilled, the substituted heir acquiring the estate can claim the same, and if he obtains it, an action can be brought on the bond. The Prætor himself, where proper cause is shown, is frequently accustomed to order the stipulation to be made before the condition is fulfilled, and before the day arrives when the petition can be filed.

Ulpianus, On the Edict, Book LXXVII. Where a slave promises to appear in court his agreement is of no force, either with respect to himself or his sureties. 1If anyone has promised by a single stipulation to appear in court on behalf of several slaves, Labeo says that the entire penalty can be collected although only one slave does not appear; because it is a fact that all of them were not present. However, if a portion of the penalty is tendered for that one, he can make use of an exception on the ground of fraud if suit is brought on the stipulation.

The Same, On the Edict, Book LXXVII. When judgment is rendered on a holiday, it is provided by law that it shall not be valid except by the consent of the parties; and where judgment is rendered otherwise, in opposition to this rule, no one is obliged to comply with it, or make any payment; nor can any official to whom application has been made under such circumstances compel the party to obey his judgment.

Ulpianus, On the Edict, Book LXXVII. When an arbiter makes an award under compulsion by the Prætor, upon a holiday, and suit is brought for the penalty on account of the arbitration; it is established that an exception is not available, unless by some law the holiday upon which the award was pronounced is excepted.

Ulpianus, On the Edict, Book LXXVII. Servius says that a penalty for money transported by sea cannot be demanded, if the creditor was to blame for not receiving it within the specified time.

Ulpianus, On the Edict, Book LXXVII. If litigants should agree as to the amount for which judgment shall be rendered, it will not be improper for the judge to decide accordingly.

The Same, On the Edict, Book LXXVII. Whenever anyone promises to produce another in court, and does not provide a penalty (for instance, if he promises to produce his slave, or a freeman), the question arises whether the stipulation becomes operative. Celsus says, that even when it was not stated in the stipulation that a penalty should be paid, if the person was not produced, it is understood that he who makes the promise will be liable for the interest of his adversary in having him produced. What Celsus says is true, for he who promises to produce another in court promises that he will take measures to do so. 1If an agent promises to produce anyone without a penalty, it can be maintained that he made the agreement, not for his own benefit, but for that of the person whom he represents; and it can be assured with still more reason that the stipulation of the agent includes the value of the property involved.

The Same, On the Edict, Book LXXVII. If Titius should bequeath a slave his freedom, and appoint him his heir, and I had previously asked for him, and had received security on his account in case he actually belonged to Titius, it must be said that the right of action against him should be transferred, and if this is not permitted to be done, the stipulation will become operative. If, however, the slave belonged to me, the plaintiff, and he should not enter upon the estate by my order, the sureties will be liable on the ground that no defence was made. But where the slave enters upon the estate by my order, the stipulation disappears. It is clear that if the slave was mine, and I deferred the acceptance of the estate until I obtained a favorable decision in court, and then I order him to accept it, and, in the meantime, I wish to institute proceedings because the suit was not defended, the stipulation will not become operative, because an arbiter would not decide in this manner.

Ulpianus, On the Edict, Book LXXVII. When anyone stipulates for ten aurei to be paid in honey, honey can be delivered to him before proceedings are instituted under the stipulation. If, however, an action has once been begun, and the ten aurei demanded, the debt can no longer be paid in honey. 1Again, if I should stipulate for payment to be made to me or to Titius, and I afterwards bring suit, payment can no longer be made to Titius, although it could have been done before issue had been joined.

The Same, On the Edict, Book LXXVII. Where a release has been granted with reference to the clause providing for the payment of a judgment, Marcellus says that the remaining parts of the stipulation are extinguished, because they cannot be interposed except to enable the case to be decided.

Ulpianus, On the Edict, Book LXXVII. If anyone, being about to appear before a certain judge, should stipulate for the payment of a judgment, and bring suit in another court, the stipulation will not take effect, because the sureties did not subject themselves to the decision of this judge. 1An agent, a guardian, and a curator, can stipulate for the payment of a judgment. 2We should understand an agent to be one upon whom authority has been conferred, either specially for this purpose, or generally for the administration of all the property. And he is even considered to be an agent if his acts subsequently should be ratified. 3The question arises, if a child or a relative should happen to interfere in the transaction of business, or a husband should do so in behalf of his wife, persons from whom no mandate is required, whether the stipulation will take effect. The better opinion is that it should not, unless authority was granted, or what has been done is ratified; for while they are permitted by the Edict of the Prætor to act, this does not render them agents; and therefore, if anyone of this kind should offer his services voluntarily, he must again furnish security. 4What we have said with reference to a guardian, however, must be understood to mean that if he is a person who administered a guardianship, when he was not actually a guardian, he should not be designated by that appellation. 5But even if he is a guardian, and does not transact business as one, or if he is not aware that he is a guardian, or any other cause exists, it must be said that the stipulation will not take effect. For, by the Edict of the Prætor, the power of acting as guardian is granted to him to whom the guardianship was entrusted, either by the father, by the majority of the guardians, or by those invested with competent jurisdiction. 6By the term curator, we understand the curator of an insane person of either sex, or of a male or female ward, or of any other person, for example, a minor, and, under these circumstances, I think that the stipulation will take effect. 7If we suppose that a guardian appointed for any region or province, or for the administration of property in Italy, is intended, the result will be that we can say that the stipulation will only take effect if he acted with reference to matters which pertained to his administration. 8If the defendant, after having promised to pay the judgment, should lose his mind, the question arises whether the stipulation will become operative, for the reason that his case has not been defended. The better opinion is that it will become operative, if no one appears for his defence. 9A stipulation does not take effect merely because a case is not defended, as long as anyone can appear to undertake the defence. 10Where there are several sureties, after issue has been joined with one of them with reference to the clause, “Because the case is not defended,” the principal debtor can undertake the defence.

Ulpianus, On the Edict, Book LXXVII. If, however, the surety, who is a party to the action, should have judgment rendered against him, the principal debtor will in vain undertake the defence. For even when payment of the debt has been made after the case had been decided, suit can be brought to recover what has been paid. 1If no one else appears for that purpose, one of several sureties or heirs can undertake the defence. 2For the reason that there are several claims included in a single sum, in this stipulation, if, in one of them, the stipulation should immediately take effect, this cannot occur, so far as any other is concerned. 3Now let us see what defence is required, and by whom, in order to prevent the stipulation from taking effect. And, if any one of the persons enumerated as having a right to undertake the defence should do so, it is clear that the case is properly defended, and that the stipulation will not take effect. Where, however, someone, outside of those above mentioned, comes forward to defend it, the stipulation will not, in this instance, become operative; provided he is prepared to undertake the defence in accordance with the judgment of a good citizen, that is to say, by furnishing security, as he is considered to undertake it if he gives security. If, however, he is merely ready to appear, and is not accepted, the stipulation will take effect, because the action was not defended. But where anyone accepts him, either with or without security, the result will be that it must be said that no part of the stipulation becomes operative, because he who accepts such a defender has no one to blame but himself. 4Where one of the sureties who has given bond for the payment of the judgment appears to defend the case, it has been decided that the stipulation for the payment of the judgment does not take effect, and that all other matters are in the same condition as if a stranger had undertaken the defence. 5The question arose, with reference to this stipulation, whether the sureties would be liable in an action on mandate, if they abandoned the defence. The better opinion is that they would not be liable; as they only became sureties for a definite amount, and their mandate related to this, and not to the defence of the case. 6But what if they had taken it upon themselves to defend the case, could they bring an action on mandate? Where, indeed, they were defeated, they could recover what they had paid out in satisfaction of the judgment, but they could, by no means, recover the cost of the litigation. If, however, they gained the case, they could recover the expenses of litigation, just as under a mandate, although they did not act in compliance with the mandate. 7Where, however, several sureties are ready to undertake the defence, let us see whether they should appoint a single defender, or whether it will be sufficient for each of them to undertake the defence of his own share, or substitute a defender. The better opinion is that, unless they appoint a representative, that is to say, if the plaintiff desires it, the stipulation will take effect on the ground that the case is not defended. For several heirs of a debtor are obliged to appoint an attorney for fear that, if the defence should be divided among several parties, it will subject the plaintiff to inconvenience. The case is otherwise with respect to the heirs of the plaintiff, or whom the necessity of appearing in court by a single representative is not imposed. 8It must be remembered that, for a case to be defended properly, this must be done before a court having jurisdiction.

Ulpianus, On the Edict, Book LXXVII. The question is also asked by Labeo, if anyone should alienate the mind of a person by drugs, or by any other means, whether there will be ground for the action for injury. He says that the action for injury can be brought against him. 1Where a man has not been beaten, but hands have been threateningly raised against him, and he has been repeatedly alarmed at the prospect of receiving blows, without having actually been struck, the offender will be liable to an equitable action for injury sustained. 2The Prætor says: “I will grant an action against anyone who is said to have abused another, or to have caused this to be done, in a way contrary to good morals.” 3Labeo says that vociferous abuse by several individuals constitutes an injury. 4The expression, “Vociferous abuse by several individuals,” is said to be derived from the terms “tumult,” or “assembly,” that is to say the union of several voices, for where those are united it receives this appellation, just as if someone had said an “assembly of voices.” 5But what is added by the Prætor, that is to say, “Contrary to good morals,” shows that he noted not all the united clamor, but merely that which violates good morals, and which has a tendency to render someone infamous, or detested. 6He also says that the expression, “Contrary to good morals,” should not be understood to refer to those of the person who commits the offence, but, in general, to mean in opposition to the morals of this community. 7Labeo says that the abusive clamor of many voices can not only be raised against a person who is present, but also against one who is absent. Hence, if anyone, under such circumstances, should come to your house when you are not there, a clamor of many voices may be said to have occurred. The same rule applies to your lodging, or to your shop. 8Not only is he considered to have caused a disturbance who has himself uttered cries, but also he who has instigated others to cry out, or who has sent them for that purpose. 9The words, “Abused another,” were not added without a cause, for if the clamor was raised against a person who was not designated, there could be no prosecution. 10If anyone should attempt to incite a clamor against another, but does not succeed, he will not be liable. 11From this it is apparent that every kind of abuse is not the clamor of several voices, but that alone which is uttered with vociferation. 12Whether one or several persons have uttered these expressions in a disorderly crowd, it is an united clamor. But anything which has not been spoken in a tumultuous assemblage, or in loud tones, cannot properly be designated an united clamor, but speech with a view to defamation. 13If an astrologer, or anyone who promises unlawful divination, after having been consulted should say that another was a thief, when in fact he was not, an action for injury sustained cannot be brought against him, but he can be prosecuted under the Imperial Constitutions. 14The action for injury, which is based on general clamor, is not granted either against or in favor of heirs. 15If anyone should speak to young girls who are attired in the garments of slaves, he will be considered to be guilty of a minor offence; and still less, if they are dressed as prostitutes, and not as respectable women. Therefore, if a woman is not dressed as a respectable matron, anyone who speaks to her or takes away her female attendant will not be liable to the action for injury. 16We understand an attendant to mean one who accompanies and follows anyone (as Labeo says), whether it be a freedman or a slave, a man or woman. Labeo defines an attendant to be one who is appointed to follow a person for the purpose of keeping him or her company, and is abducted either in a public or a private place. Teachers are included among attendants. 17He is considered to have abducted an attendant (as Labeo says), not where he has commenced to do so, but where he has absolutely taken the attendant away from his or her master or mistress. 18Moreover, he is not only understood to have abducted an attendant who does so by the employment of force, but also he who persuades the attendant to leave her mistress. 19Not only he who actually abducts an attendant is liable under this Edict, but also anyone who addresses or follows one of them. 20To “address” is to attack the virtue of another by flattering words. This is not raising a tumultuous clamor, but is a violation of good morals. 21He who makes use of foul language does not attack the virtue of anyone, but is liable to the action for injury. 22It is one thing to address, and another to follow a person, for he addresses a woman who attacks her virtue by speech; and he follows her who silently and constantly pursues her, for assiduous pursuit is sometimes productive of a certain degree of dishonor. 23It must, however, be remembered that everyone who follows or addresses another cannot be sued under this Edict; for he who does this in jest, or for the purpose of rendering some honorable service, will not come under the terms of this Edict, but only he who acts contrary to good morals. 24I think that a man who is betrothed should also be permitted to bring this action for injury; for any insult offered to his intended wife is considered an injury to himself. 25The Prætor says: “Nothing shall be done for the purpose of rendering a person infamous, and if anyone violates this provision, I will punish him according to the circumstances of the case.” 26Labeo says that this Edict is superfluous, because we can bring a general action for injury committed, but it appears to Labeo himself (and this is correct) that the Prætor, having examined this point, wished to call attention to it specifically; for where acts publicly performed are not expressly mentioned, they seem to have been neglected. 27Generally speaking, the Prætor forbade anything to be done which would render anyone infamous; hence, whatever a person does or says, which has a tendency to bring another into disrepute, will afford ground for an action for injury sustained. Such are almost all those things which cause disgrace; as, for instance, the use of mourning garments or clothing that is filthy, or allowing the hair or the beard to grow, or the composition of poetry, or the publication or singing of anything which may injure anyone’s modesty. 28When the Prætor says, “If anyone violates this provision, I will punish him according to the circumstances of the case,” this should be understood to mean that the punishment by the Prætor will be more severe; that is, that he will be influenced either by the personal character of him who brings the action for injury, or by that of him against whom it is brought, or by the matter itself, and the nature of the injury as alleged by the plaintiff. 29If anyone attacks the reputation of another by means of a memorial presented to the Emperor, or to anyone else, Papinianus says that the action for injury can be brought. 30He also says that he who sells the result of a decision, before any money has been paid, can be condemned for injury, after having been whipped by order of the Governor, as it is apparent that he committed an injury against the person whose judgment he offered for sale. 31Where anyone seizes the property of another, or even a single article, for the purpose of causing him damage, he will be liable to an action for injury. 32Likewise, if anyone has given notice of the sale of a pledge, and states that he is about to sell it, as having received it from me, and does this for the purpose of insulting me, Servius says that an action for injury can be brought. 33If anyone, in order to injure another should refer to him as his debtor, when he is not, he will be liable, to the action for injury. 34The Prætor says: “If anyone is said to have beaten the slave of another contrary to good morals, or to have put him to torture without the order of his master, I will grant an action against him. Likewise, where any other illegal act is said to have taken place, I will grant an action after proper cause is shown.” 35If anyone causes an injury to a slave in such a way as to inflict one upon his master, I hold that the master can bring the action for injury in his own name; but if he did not do this for the purpose of insulting the master, the Prætor should not leave the injury done to the slave himself unpunished, and, by all means, if it was effected by blows, or by torture; for it is clear that the servant suffered by it. 36If one joint-owner beats a slave held in common, it is clear that he will not be liable to this action, as he did this by the right of a master. 37If an usufructuary should do this, the owner can bring an action against him; or if the owner did it, the usufructuary can sue him. 38He adds, “Against good morals,” meaning that everyone who strikes a slave is not liable, but everyone who strikes him against good morals is liable. Where, however, anyone does so with a view to his correction or reformation, he will not be liable. 39Therefore, if a municipal magistrate should wound my slave with a whip, Labeo asks if I can bring suit against him because he beat him contrary to good morals. And he says the judge should inquire what my slave did to cause him to be whipped; as, if he impudently sneered at his office, or the insignia of his rank, he should be discharged from liability. 40“To beat” is improperly applied to one who strikes with his fist. 41By “torture,” we should understand the torment and corporeal suffering and pain employed to extract the truth. Therefore, a mere interrogation or a moderate degree of fear does not justify the application of this Edict. In the term “torment” are included all those things which relate to the application of torture. Hence when force and torment are resorted to, this is understood to be torture. 42If, however, torture should be applied by order of the master himself, and it exceeds the proper limits, Labeo says he will be liable. 43The Prætor says, “Where any other illegal act is said to have taken place, I will grant an action, after proper cause is shown.” Hence, if a slave has been severely beaten, or put to the question, judgment can be rendered against the guilty party without any further investigation. If, however, he suffered any other injury, the action will not lie, unless proper cause is shown. 44Therefore the Prætor does not promise the action for injury in the name of the slave, for every kind of cause. For if he was lightly struck, or not grossly abused, he will not grant it. If his reputation has been assailed by any act, or by any written verses, I think that the investigation of the Prætor should be extended so as to include the character of the slave. For there is a great difference between the characters of slaves, as some are frugal, orderly, and careful; others are common, or employed in menial occupations, or of indifferent reputation. And what if the slave was shackled, or of bad character, or branded with ignominy? Therefore, the Prætor must take into consideration not only the injury which was committed, but also the reputation of the slave against whom it is said to have been perpetrated, and thus he will either permit or refuse the action. 45Sometimes the injury done to the slave falls back upon his master, and sometimes it does not; for if anyone, thinking that he belonged to someone else and not to me, should beat a man who alleged that he was free, and he would not have beaten him if he had known that he was mine, Mela says that he cannot be sued for having committed an injury against me. 46If anyone should bring an action for injury on account of a slave who had been beaten, and afterwards an action for wrongful damage, Labeo says that this is not the same thing, because one of the actions has reference to damage caused by negligence, and the other to insult. 47If I have the usufruct in a slave, and you have the ownership in him, and he has been beaten or subjected to torture, I, rather than the owner, will be entitled to bring the action for injury sustained. The same rule applies, if you have beaten my slave whom I possessed in good faith, for the master has the better right to bring an action for injury. 48Again, when anyone beats a freeman who was serving me in good faith as a slave, it should be ascertained whether he struck him for the purpose of insulting me, and if he did, an action for injury will lie in my favor. Therefore, we grant an action for injury with reference to the slave of another who is serving me in good faith, whenever the injury was committed with the intention of insulting me; for we grant it to the master of the name of the slave himself. If, however, he touches and beats me, I can also bring an action for injury. The same distinction must be made with reference to the usufructuary. 49If I beat a slave belonging to several masters, it is perfectly clear that they all will be entitled to bring the action for injury sustained.

The Same, On the Edict, Book LXXVII. The following clause, “To be done according to the judgment of Lucius Titius,” refers to a person who has a right to act, and does not apply to a slave.

Ad Dig. 50,17,161ROHGE, Bd. 5 (1872), S. 111: Rechtliche Bedeutung der Clauusel in Feuerversicherungspolicen: „die Versicherung wird erst durch die gehörig geleistete Prämienzahlung giltig“.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 10.The Same, On the Edict, Book LXXVII. It was a rule adopted by the Civil Law that whenever a party in interest prevents a condition from being complied with, it is considered the same as if it had been fulfilled. This applies to grants of freedom, legacies, and the appointment of heirs; and, under this rule, stipulations also become operative, when, through the act of the promisor, the stipulator is prevented from complying with the condition.