responds to the question, and thus two Greeks, for instance, may contract an obligation in Latin. But it was only in former times that the solemn forms referred to were in use: for subsequently, by the enactment of Leo's constitution, their employment was rendered unnecessary, and nothing was afterwards required except that the parties should understand each other, and agree to the same thing, the words in which such agreement was expressed being immaterial.

The terms of a stipulation may be absolute, or performance 2 may either be postponed to some future time, or be made subject to a condition. An absolute stipulation may be exemplified by the following: 'Do you promise to give five aurei?' and here (if the promise be made) that sum may be instantly sued for. As an instance of a stipulation ‘in diem,' as it is called where a future day is fixed for payment, we may take the following: 'Do you promise to give ten aurei on the first of March ?' In such a stipulation as this, an immediate debt is created, but it cannot be sued upon until the arrival of the day fixed for payment: and even on that very day an action cannot be brought, because the debtor ought to have the whole of it allowed to him for payment; for otherwise, unless the whole day on which payment was promised is past, it cannot be certain that default has been made. If the terms of your stipulation run 'Do you promise 3 to pay me ten aurei a year so long as I live?' the obligation is deemed absolute, and the liability perpetual, for a debt cannot be owed till a certain time only; though if the promisee's heir sues for payment, he will be successfully met by the plea of contrary agreement. A stipulation is conditional, 4 when performance is made to depend on some uncertain event in the future, so that it becomes actionable only on something being done or omitted: for instance, 'Do you promise to give five aurei if Titius is made consul?' If, however, a man stipulates in the form 'Do you promise to give so and so, if I do not go up to the Capitol?' the effect is the same as if he had stipulated for payment to himself at the time of his death. The immediate effect of a conditional stipulation is not a debt, but merely the expectation that at some time there will be a debt: and this expectation devolves

on the stipulator's heir, supposing he dies himself before fulfil5 ment of the condition. It is usual in stipulations to name a place for payment; for instance, 'Do you promise to give at Carthage?' Such a stipulation as this, though in its terms absolute, implies a condition that enough time shall be allowed to the promisor to enable him to pay the money at Carthage. Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay to-day at Carthage?' the stipulation is void, because the performance of the act to be promised 6 is a physical impossibility. Conditions relating to past or present time either make the obligation void at once, or have no suspensive operation whatever. Thus, in the stipulation 'Do you promise to give so and so, if Titius has been consul, or if Maevius is alive?' the promise is void, if the condition is not satisfied; while if it is, it is binding at once: for events which in themselves are certain do not suspend the binding force of an obligation, however uncertain we ourselves may be about them.

7 The performance or non-performance of an act may be the object of a stipulation no less than the delivery of property, though where this is the case, it will be best to connect the non-performance of the act to be performed, or the performance of the act to be omitted, with a pecuniary penalty to be paid in default, lest there be a doubt as to the value of the act or omission, which will make it necessary for the plaintiff to prove to what damages he is entitled. Thus, if it be a performance which is stipulated for, some such penalty should be added as in the following: 'If so and so is not done, do you promise to pay ten aurei as a penalty?' And if the performance of some acts, and the non-performance of others, are bargained for in the same stipulation, a clause of the following kind should be added, 'If any default is made, either as contrary to what is agreed upon, or by way of nonperformance, do you promise to pay a penalty of ten qurei?'

TITLE XVI.

OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO DEBTORS.

There may be two or more parties on either side in a stipulation, that is to say, as promisors or promisees. Joint promisees are so constituted by the promisor answering, 'I promise,' after they have all first asked the question; for instance, if after two promisees have separately stipulated from him, he answers, 'I promise to give so and so to each of you.' But if he first promises to Titius, and then, on another's putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all. The usual form to constitute two or more joint promisors is as follows,—'Maevius, do you promise to give five aurei? Seius, do you promise to give the same five aurei?' and in answer they reply separately, 'I promise.' In obligations of 1 this kind each joint promisee is owed the whole sum, and the whole sum can be claimed from each joint promisor; and yet in both cases but one payment is due, so that if one joint promisee receives the debt, or one joint promisor pays it, the obligation is thereby extinguished for all, and all are thereby released from it. Of two joint promisors one may 2 be bound absolutely, while performance by the other is postponed to a future day, or made to depend on a condition; but such postponement or such condition in no way prevents the stipulator from at once suing the one who was bound absolutely.

TITLE XVII.

OF STIPULATIONS MADE BY SLAVES.

From his master's legal capacity a slave derives ability to be promisee in a stipulation. Thus, as an inheritance in most matters represents the legal 'person' of the deceased, whatever a slave belonging to it stipulates for, before the inheritance is accepted, he acquires for the inheritance, and so for the person who subsequently becomes heir. All that a slave 1

acquires by a stipulation he acquires for his master only, whether it was to that master, or himself, or his fellow slave, or no one in particular that performance was to be made under the contract; and the same principle applies to children in power, so far as they now are instruments of acquisition for their father. 2 When however what is stipulated for is permission to do some specific act, that permission cannot extend beyond the person of the promisee: for instance, if a slave stipulates for permission to cross the promisor's land, he cannot himself be denied 3 passage, though his master can. A stipulation by a slave belonging to joint owners enures to the benefit of all of them in proportion to the shares in which they own him, unless he stipulated at the bidding, or expressly in favour, of one of them only, in which case that one alone is benefited. Where a jointly owned slave stipulates for the transfer of property which cannot be acquired for one of his two masters, the contract enures to the benefit of the other only: for instance, where the stipulation is for the transfer of a thing which already belongs to one of them.

TITLE XVIII.

OF THE DIFFERENT KINDS OF STIPULATIONS.

Stipulations are either judicial, praetorian, conventional, or common by the latter being meant those which are both 1 praetorian and judicial. Judicial stipulations are those which it is simply part of the judge's duty to require; for instance, security against fraud, or for the pursuit of a runaway slave, 2 or (in default) for payment of his value. Those are praetorian, which the praetor is bound to exact simply in virtue of his magisterial functions; for instance, security against apprehended damage, or for payment of legacies by an heir. Under praetorian stipulations we must include also those directed by the aedile, for these too are based upon jurisdic3 tion. Conventional stipulations are those which arise merely from the agreement of the parties, apart from any direction of a judge or of the praetor, and which one may almost say are of as many different kinds as there are conceivable objects to 4 a contract. Common stipulations may be exemplified by

that by which a guardian gives security that his ward's property will not be squandered or misappropriated, which he is sometimes required to enter into by the praetor, and sometimes also by a judge when the matter cannot be managed in any other way; or, again, we might take the stipulation by which an agent promises that his acts shall be ratified by his principal.

TITLE XIX.

OF INVALID STIPULATIONS.

Anything, whether moveable or immoveable, which admits of private ownership, may be made the object of a stipulation; but if a man stipulates for the delivery of a thing which either 1 does not or cannot exist, such as Stichus, who is dead but whom he thought alive, or an impossible creature, like a hippocentaur, the contract will be void. Precisely the same 2 principle applies where a man stipulates for the delivery of a thing which is sacred or religious, but which he thought was a subject of human ownership, or of a thing which is public, that is to say, devoted in perpetuity to the use and enjoyment of the people at large, like a forum or theatre, or of a freeman whom he thought a slave, or of a thing which he is incapable of owning, or which is his own already. And the fact that a thing which is public may become private property, that a freeman may become a slave, that the stipulator may become capable of owning such and such a thing, or that such and such a thing may cease to belong to him, will not avail to suspend the force of the stipulation in these cases, but it is void from the outset. Conversely, a stipulation which originally was perfectly good may be avoided by the thing, which is its object, acquiring any of the characters just specified through no fault of the promisor. And a stipulation, such as 'do you promise to convey Lucius Titius when he shall be a slave?' and others like it, are also void from the beginning; for objects which by their very nature cannot be owned by man cannot either in any way be made the object of an obligation. If one man promises that another shall convey, or 3 do so and so, as, for instance, that Titius shall give five aurei, he will not be bound, though he will if he promises to get