TITLE XV.-OF OBLIGATIONS CREATED BY WORD OF MOUTH.

The obligations created verbis were those arising from a Stipulatio (1).

Pr. Stipulatio consists of a question, by which one of the contracting parties asks the other whether he will promise to give or to do something, and of the answer by the other party that he does so promise. The Stipulatio is not strictly a contract, but a mode of contracting, a form for giving agreements a solemnity which they would not otherwise possess. And this appears from the etymology of the word: for stipulum denotes something firm, solid, from stipes, a stem.

Pr. The actions raised by a Stipulatio were two, each of them allowed to the stipulator (promisee) (2), but varying with the nature of the stipulatio-viz., 1st. The condictio proper, or condictio certi (t. 13), when the Stipulatio is certain; 2nd. The action ex Stipulatu, or condictio incerti, when the Stipulatio is uncertain (3).

§ 7. The Stipulatio was certain when a man by it became liable to give (p. 229) a thing certain; if not a specific article, at all events one whereof the species, quality, and quantity were ascertained (quid, quale, quantumque sit); e.g., the slave Stichus, ten pieces of gold, 100 amphoræ of wine, of the best quality, and of a particular district.

The Stipulatio was uncertain whenever its subject-matter was something which a man had promised to do, or which he had promised not to do; or when the thing due was indeterminate in its quantity or quality (4).

The Stipulatio for something to be done was always uncertain, because it was impossible to compel one, who had promised to do a thing, to do it specifically, e.g., to build a house, or to paint a pic

(1) Besides this, there were two other verbal obligations; for, 1. A freedman bound himself by oath to do certain services for his patron. And, 2. A wife and her paternal ancestors bound themselves by dictio dotis to give the dos to the husband. But under Theodosius, the mere agreement to give the dos was binding, and dictio dotis ceased; obligations by oath being confined to a particular case, ipulatio is the only verbal obligation discussed by Justinian.

(2) Stipulari is properly to have a promise made to one by the person questioned; but in a wider sense, stipulantes denotes both contracting parties, that is, be who puts the question and he who answers it (uterque stipulantium, § 1).

(3) The actio ex stipulatu, which, as opposed to condictio certi, denotes an action raised by a stipulatio, the subject-matter of which is incertum, was sometimes used as a general term for any action raised by a stipulatio.

(4) E.g., the stipulatio rem pupilli salvam fore, or domum ædificari are uncertain; so also when a slave was stipulated for, but no particular one was mentioned; or when a quantity of wine was stipulated for, but no quality was mentioned. The Stipulatio for a usufruct or other servitude was considered uncertain. All such stipulations raised the condictio incerti.

ture; and because the action raised by such an obligatio could result only in a pecuniary condemnatio or damages, the amount of which (being left indefinite in the formula) had to be regulated by the judex, according to the interest which the demandant had in the execution of the promise by the defendant. This interest was indefinite, and varied with circumstances; but it lay on the demandant to prove it. Hence, in order to be relieved from the necessity of making such proof, and to prevent a stipulatio continuing uncertain (ne quantitas incerta sit, § 7), the creditor often took the precaution of fixing, by a supplemental Stipulatio, the sum which the debtor should pay, in case the obligation to do the particular thing was not performed (1). For, then, when the debtor failed to perform his promise, the creditor claimed not by the condictio incerti id quod interest, but by the condictio proper, the sum fixed by the supplemental Stipulatio.

§ 1. Before the reign of Leo, certain special words were required in order to the validity of a Stipulatio, e.g., Spondes? Spondeo: Promittis? Promitto: Dabis? Dabo: Facies? Faciam: Fidejubes? Fidejubeo: Fidepromittis? Fidepromitto. A Stipulatio not in the regular words, e.g., Polliceris? Polliceor, would not have created any obligation. Moreover, the special words might be translated into Greek, or any other language (2), provided the parties understood each other; for the question and answer might be in different languages.

According to Leo's Constitution (A.D. 469), there could be no valid Stipulatio unless the parties gave their consent by some words or other ; and there could be no verbal obligation without a Stipulatio, i.e., a direct question and answer.

§ 2. A Stipulatio might be unconditional or conditional, or for a particular period (in diem).

§ 2. If unconditional, the result was that the obligation might be required to be executed immediately; so far, at least, that the creditor (Stipulator) who sued immediately would not be liable to the charge of plus-petitio (B. 4, t. 6); for a debtor was, of course, entitled to a reasonable time for the performance of his promise (t. 19, § 27).

§ 2. When the contracting parties in a Stipulatio fixed upon the period when the obligation was to be executed-thus, Decem aureos primis calendis Martiis dare spondes? The time for payment was postponed until such period had expired (3), so that the Stipulator lost his action

In

(1) Thus, si ita factum non erit tunc pœnæ nomine decem aureos dare spondes? This was called the penal clause. English law it would be called a contract with liquidated damages.

(2) Except spondes? spondeo, which was peculiar to Roman citizens, and therefore part of the civil law, whereas the other

forms were open to Peregrini (Gaius 3,. § 93).

(3) The stipulator (promisee) must not begin his action on the day fixed; for if the debtor paid the last minute of that day he would still be within the period, for he was entitled (§ 3) to the whole.

if he brought it before. Observe, however, that although the period suspended the action of the creditor, it did not affect the existence of the debt; in other words, though the debt was not demandable (dies venit) until the period had expired, still the liability arose (dies cedit) whenever the Stipulatio was made (statim quidem debetur; peti . . . non potest); and in this respect a fixed period differed essentially from a condition.

§3. When the Stipulatio indicated a particular day on which the obligation was to cease (1), the arrival of the day did not instantly determine the obligation. The modes of determining obligations were fixed by the civil law (t. 29, post), and lapse of time was not one (ad tempus deberi non potest). If a man, therefore, agreed by Stipulatio to pay every year a particular sum, until the death of his creditor, the obligation, although its term was fixed, continued after the decease of the creditor, just as if it had been an unconditional Stipulatio, and his hæredes had the action raised by the Stipulatio; but the debtor might bar it, and avoid the condemnation by the exceptio, or plea, pacti conventi, or doli mali.

§ 5. When no fixed period was expressed, but some place for payment was fixed, other than that at which the parties made the contract, e.g., when a stipulatio was made at Rome to pay at Carthage, such stipulatio was not absolute: a fixed period was implied. It was presumed that as the execution of the contract was referred to another place, the parties also referred to another time, viz., such a period of time as the distance required; otherwise, the obligation, being impossible, would be null. Hence, a promise made at Rome to pay the same day at Carthage is declared by the text to be void.

§ 4. A Stipulatio was conditional when the promise was made subject to an uncertain event, as, Do you promise to give such a sum, if Titius is appointed consul? Such Stipulatio raised no obligation, unless the case provided for happened, and when it did, then, as the text says, committitur stipulatio. Till then there was no debt: the Stipulator had a bare expectation (spes est debitum iri), transmissible (2), however, to his hæredes, and which the promissor could not take from him (3).

(1) This was a stipulatio ad diem (ad quem); it was ex die (a quo) when the day upon which it was to be executed was indicated.

(2) But (B. 2, t. 14, § 10) in a will neither the hæres institutus nor the legatee could transmit anything to their hæredes if they died before the condition happened. The reason is this: in obligations, the two parties contract for themselves and for their hæredes; whereas testamentary dispositions are supposed to be made on considerations personal to the legatee or hæres

institutus. Nothing being due before the condition is fulfilled, it follows that if a man has received anything promised on a condition which is unfulfilled, the receiver might be liable to an action in order to make him repay it; but if a person stipulated for the delivery of a thing after the lapse of a fixed period, the debtor would have no right to recover what he voluntarily paid before the lapse thereof, because he was then under an obligation to pay, though it could not be immediately enforced.

(3) The promissor must do nothing to

§ 4. According to these principles, what is the effect of this: Do you promise to give me so much, if I do not go up to the capitol? Such a contract cannot possibly raise any obligation or any action until the death of the party stipulating for it (1). For then only can it be certain that the Stipulator has not gone up to the capitol, and that the negative (2) condition has been fulfilled. In case of obligations, a man cannot offer the cautio muciana, so as to enable him to demand the execution of the contract whilst the condition is in suspense (B. 2, t. 20).

§ 6. A Stipulatio is not subject to a condition proper, when made subject to an event past or present; e.g., If Titius has been consul, or if Mævius is alive, do you promise to give? For, either the fact is not true, and then the obligation which does not now exist never will: or the fact is true, and then the existence of the fact gives instant effect to the contract. It matters not whether a fact is or is not known to the parties; if the alleged fact is really a fact, that is enough to prevent the obligation being suspended.

TITLE XVI.—OF CO-STIPULATORS (JOINT PROMISEES) AND JOINT

PROMISSORS.

Pr. There may be more than two parties (rei) (3) to one Stipulatio. In other words, there may be in the same obligation several joint-stipulators or joint-promissors.

There were several joint stipulators, when the promissor was questioned by several persons whether he would undertake to give or to do the same thing, and he answered all at the same time, that he would. Suppose, for instance, that Titius and Mævius questioned Sempronius whether he would promise to give ten pieces of gold, and he answered, utrique vestrum dare spondeo. If the promissor answered successively, first one question and then another, there would be so many different obligations, and not a joint Stipulatio, for that expression applied exclusively to the concurrence of several stipulators in one obligation.

hinder the fulfilment of the condition; if he does, he will lose the benefit of such condition.

(1) (§ 4). Therefore the stipulator cannot bring the action; it must belong to his hæredes. In this respect the clause If I go up to the capitol is equivalent to when I die. But in other respects these two clauses materially differ. For as the stipulator must die at some time, cum moriar is not a condition, but a fixed period; but as he may or may not go up to the capitol, the stipulatio is subject to this

uncertain fact, and is therefore conditional. (2) A negative condition is not fulfilled until the fact involved has become impossible.

(3) Reus properly denotes the debtor to whom the question is put; but generally the name rei signifies the parties. D. 45, t. 2, l. 1. Qui stipulatur reus stipulandi dicitur; qui promittit reus promittendi habetur. Quod si duo pluresve idem stipulantur correi stipulandi dicuntur; si duo pluresve idem promittunt dicuntur corrci promittendi.

There were several joint promissors when several persons answered the stipulator after they had all (1) been questioned on the same subject (eosdem decem).

§ 1. The effect of a Stipulatio in which there were several joint stipulators or promissees, or several joint promissors, was to make each joint stipulator a creditor for the whole (solidum singulis debetur), and each joint promissor a debtor for the whole (singuli in solidum tenentur). But as the same thing was due only once, the payment made by one joint promissor discharged all the others, in like manner as the payment to one joint stipulator discharged the promissor in regard to all the other stipulators.

Hence the debtor might pay any one of the joint stipulators he pleases unless one of the stipulators has already brought an action on the contract; for then such stipulator is the person to be paid. So, after action brought against one of the joint debtors, it would seem that the rest ought not to be liable; but Justinian allowed the creditor to sue each joint debtor successively until the debt was paid.

§ 2. Again, some of the co-promissors might be bound unconditionally, and others for a fixed period, or conditionally; the persons answering the stipulator became co-promissors from the mere fact, that the same thing was promised by all of them at once; it mattered not whether some promised unconditionally and others for a fixed period, or conditionally; nor did the fixed period, or condition attached to the obligation of the one, prevent those being sued who were unconditionally liable (D. 45, t. 2, 7).

In case of a Commodatum or Depositum, or other contract created without solemn words, there might be several creditors entitled to claim the whole, or several debtors liable for the whole. In such contracts, as in a Stipulatio, the contracting parties might, if they so intended, impose on several a common obligation, and make each liable for the whole amount (D. 45, 2, 9).

(1) If, after having questioned one and received a direct answer, the stipulator questioned another and received another answer, there would be two different stipulationes, not two joint promissors in the one stipulatio. But it was of no moment whether the question was put to the promissors, and they answered together in the

plural number (spondetis? spondemus) or separately, in the singular (spondes? spondeo). Hence, it was the form of the contract, i.e., the mode in which the questions and answers followed each other, which made each of the joint promissors liable for the whole.