Ulpianus, On Sabinus, Book XLVI. The Aquilian stipulation absolutely changes and annuls all preceding obligations, and is itself annulled by a release; and this is now our practice. Therefore, even bequests which are made conditionally come under the Aquilian stipulation.

The Same, On Sabinus, Book XLVI. Where a party who could protect himself by a perpetual exception promises to give something in order to be released, when he knew that he could take advantage of this exception; he cannot bring an action for recovery.

Ulpianus, On Sabinus, Book XLVI. It is not unusual for one person to be liable to two obligations with reference to the same matter, at the same time; for when one who has a vendor bound becomes heir of another to whom the same vendor is liable, it is established that there are two concurrent rights of action united in the same person, one which he has as his own, and the other which is derived from the estate; and the appointed heir, if he wishes for his own convenience to avail himself of the two actions separately, must bring his own against the vendor before he enters on the estate, and then, after he has done so, bring the one which is derived from the latter. If he should first enter upon the estate, he can only bring one action, but he can do this in such a way as to obtain the greatest advantage from both contracts. On the other hand, if one vendor should become the heir to the other, it is clear that he must guarantee the purchaser doubly against eviction.

The Same, On Sabinus, Book XLVI. For the reason that it is held that, where several matters are set forth in one stipulation, there are several stipulations; let us see whether this applies to one calling for double damages, for example, where anyone stipulates that the slave is not in the habit of running away, and is not a wanderer, and the other things which are mentioned in the Edict of the Curule Ædiles; is there one stipulation, or several, in this instance? It is reasonable to hold that there are several. 1Ad Dig. 21,2,32,1ROHGE, Bd. 15 (1875), Nr. 93, S. 328: Berechnung des Minderwerths im Falle der exceptio quanti minoris.Hence what Julianus states in the Fifteenth Book of the Digest is correct. For he says that, where a purchaser brings an action for the depreciation in value of a slave because he was in the habit of running away, and then brings another on account of some disease with which he was afflicted; care must be taken to prevent the purchaser from obtaining a profit, and recovering damages twice for the same defect. Let us suppose that a slave was purchased for ten aurei, and that the buyer could have acquired him for at least two less, if he had only known that he was in the habit of running away; and, after recovering this sum because of said habit, he afterwards discovers that he is not sound, and that he could have purchased him for two aurei less, if he had been aware that he was diseased. He should, therefore, again recover two aurei, for if he had brought suit at the same time on both causes of action, he could have recovered four, since he could have purchased the slave who was not sound, and who was in the habit of running away, for only six aurei. In accordance to principle, he can proceed frequently under the stipulation, for he does not do so merely on account of one stipulation, but on account of several.

Ulpianus, On Sabinus, Book XLVI. Ad Dig. 45,1,29 pr.ROHGE, Bd. 14 (1875), Nr. 40, S. 103: Erwerb des Pfandbesitzes an einer Quantität vertretbarer Sachen.ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 252, Note 9; Bd. II, § 464, Note 4.We must remember that, in stipulations, there are as many agreements as. there are sums of money, and as many stipulations as there are articles involved. The result of this is that where a sum of money or an article which was not included in the preceding stipulation is mixed with another, a renewal does not take place, but two stipulations are made. And although it has been decided that there are as many stipulations as there are sums of money, and as many stipulations as there are articles; still, if anyone stipulates for a certain sum or a pile of money which is in sight, there are not as many stipulations as there are separate pieces of money, but only a single stipulation; as it is absurd that there should be a separate stipulation for every coin. It is also certain that there is only one stipulation for a legacy, although several objects may be included in one legacy, or there may be several legacies. Moreover, there is but one stipulation, where it refers to the entire body of slaves, or all the slaves in a household. In like manner, a stipulation which has reference to a team of four horses, or to a number of litter bearers, is but one. If, however, anyone stipulates for “this article and that,” there are as many stipulations as there are objects. 1If I stipulate with a thief for a slave, the question arises whether the stipulation will be valid. What causes the difficulty is, that having stipulated for a slave, I am generally held to have contracted for my own property, and a stipulation of this kind is not valid when anyone makes an agreement with reference to what is bis own. If I should stipulate as follows, “Do you promise to give what must be given under a personal action for recovery?” there is no doubt that the stipulation will be valid. If, however, I should merely stipulate for “a slave,” the stipulation will be of no force or effect. If the slave should afterwards die, without the thief being in default, Marcellus says that the latter will not be liable to a personal action, for as long as the slave lived he could have been recovered by such a proceeding. But if we suppose that he died, he is placed in such a position that the right to bring a personal action for his recovery based on the stipulation will be extinguished.

The Same, On Sabinus, Book XLVI. Julianus says that, generally speaking, he who becomes the heir of a person for whom he appeared as surety is released so far as the latter is concerned, and is only liable as the heir of the principal debtor. Finally, he says that if the surety becomes the heir of him for whom he made himself responsible, he will be liable as the principal debtor, but will be released as surety; still a principal debtor who succeeds a principal debtor is liable under two obligations; for it cannot be ascertained which one of them annuls the other; but, in the case of a surety and a principal debtor, this can be easily determined, because the obligation of the principal debtor is the more binding. When any difference exists between the obligations; it can be held that one is annulled by the other. Where, however, they are both of the same force, and it cannot be ascertained why one of them should be annulled rather than the other, he refers this matter to an example in which he desires to show that there is nothing new in the fact that two obligations may exist in the same person at the same time. This is his example. If one of two joint-promisors becomes the heir of the other, he will be liable to two obligations. Likewise, if one joint-stipulator becomes the heir of the other, he will benefit by two distinct obligations. It is evident that, if he instituted proceedings under one of them, he will make use of both; that is to say, because the nature of the two obligations which he had is such that, if one of them is brought into court, the other will also be disposed of.

Ulpianus, On Sabinus, Book XLVI. Novation is the transfer and transmission of a former debt into another civil or natural obligation; that is to say, when from the preceding liability a new one is created in such a way that the former is destroyed; for novation derives its name from the term “new,” and from a fresh obligation. 1It is of no importance what the character of the first obligation may be, whether it is natural, civil, or prætorian, or whether it is oral, real, or based on consent. Therefore, whatever it is, it can be verbally renewed, provided the following obligation is binding either civilly or naturally, for instance, where a ward promises without the authority of his guardian.

The Same, On Sabinus, Book XLVI. If I should stipulate as follows: “Will you be responsible for any amount which I may not be able to collect from Titius, my debtor?” a novation is not created, because the transaction is not for that purpose. 1When anyone has lent money without a stipulation and immediately makes one, there is but one contract. The same thing must be said where the stipulation was made first, and the money counted afterwards.

Ulpianus, On Sabinus, Book XLVI. If I stipulate for the delivery of Stichus to me, and when the promisor fails to deliver him, I again stipulate for him, the promisor is no longer responsible for the risk, as liability for the default has been released. 1Ad Dig. 46,2,8,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 3.Where legacies or trusts are included in the stipulation, and the intention was that it should be subjected to novation, this will take place; and if they were bequeathed absolutely, or to take effect at a certain time, novation occurs immediately. When, however, they were conditional, it will not take place at once, but when the condition is complied with; for, otherwise, where anyone stipulates for a prescribed time, he immediately creates a novation, if such was the intention, as it is certain that the date will arrive at some time or other. But where anyone stipulates under a condition, novation does not become operative immediately unless the condition is fulfilled. 2Where anyone stipulates with Seius, as follows, “Do you promise to pay whatever I stipulate for with Titius?” and I afterwards stipulate with Titius, does a novation take place so that Seius alone will liable? Celsus says that a novation does take place, provided this was the intention, that is to say that Seius should owe what Titius promised to pay. For he asserts that the condition of the first stipulation is complied with and novation occurs at the same time. This is our practice. 3Celsus also says that by the stipulation of paying the judgment, the action to enforce judgment is not subjected to novation; and this is reasonable, because in this stipulation the only thing involved is that a surety shall be provided, and that there shall be no departure from the obligation of the judgment. 4If I stipulate with a third party for the ten aurei which Titius owes me, or the ten which Seius owes me, Marcellus thinks that neither one of them is released, but that the third party can select him for whom he wishes to pay the ten aurei. 5When a husband stipulates with his wife for a dowry which was promised to her by a stranger, the dowry will not be doubled, but it has been decided that a novation will take place, if this was the intention. For what difference does it make whether she or someone else makes the promise? For if another person promises to pay what I owe, he can free me from liability, if this is done for the purpose of novation. If, however, he did not intervene in order to make a novation, both parties will, in fact, be liable; but if one of them pays, the other will be released. Still, if anyone stipulates for what is due to me, he does not deprive me of my right of action, unless he stipulates with my consent; but he who promises what I owe releases me from liability, even if I am unwilling that this shall be done.