inde erit, ac si stipulatus esset, cum morietur dari sibi. Ex condicionali stipulatione tantum spes est debitum iri, eamque ipsam spem transmittimus, si, priusquam condicio existat, mors nobis contigerit.

to give five aurei if I do not go up to the Capitol?' is in effect the same as if the stipulation had been, that five aurei should be given to the stipulator at the time of his death. From a conditional stipulation there arises only a hope that the thing will become due; and this hope we transmit to our heirs, if we die before the condition is accomplished.

D. xlv. 1. 115. 1; D. l. 16. 54.

The heir or legatee, it may be remembered (see Bk. ii. Tit. 14. 9), who died before the condition was accomplished, did not transmit any interest in the inheritance or legacy to his heirs, whereas the stipulator did, as we learn from the text, transmit to his heirs the hope that the thing stipulated for would be one day due to him (spes debitum iri). The reason of this difference is, that the testamentary dispositions were considered to be made to the heir or legatee personally.

If the promissor attempted to defeat the condition by preventing its being fulfilled, he was treated as if he had promised pure, and the thing could be demanded from him at once.

It is here said that a promise to pay, if a person did not do a thing, was a promise to pay when he died. There was, however, this difference: the promissor was certain to die, and therefore the stipulation, with the words cum moriar, was really made in diem; whereas it was not certain whether the promissor would or would not go up to the Capitol, and, therefore, the stipulation with the words si in Capitolium non ascendero was made sub conditione.

5. Loca etiam inseri stipulationi solent, veluti 'Carthagine dare spondes?' Quæ stipulatio licet pure fieri videatur, tamen re ipsa habet tempus injectum, quo promissor utatur ad pecuniam Carthagine dandam. Et ideo si quis ita Romæ stipuletur 'Hodie Carthagine dare spondes?' inutilis erit stipulatio, cum impossibilis sit repromissio.

D. xlv. 1. 73;

6. Condiciones, quæ ad præteritum vel ad præsens tempus referuntur, aut statim infirmant obligationem aut omnino non differunt: veluti 'si Titius consul fuit, vel si Mævius vivit, dare spondes?' Nam si ea ita non sunt, nihil valet stipulatio: sin autem ita se habent, statim valet. Quæ enim per rerum naturam certa sunt, non morantur

5. It is customary to insert a particular place in a stipulation, as, for instance, 'Do you engage to give me at Carthage?' and this stipulation, although it appears to be made simply, yet necessarily implies a delay sufficient to enable the person who promises to pay the money at Carthage. And therefore, if any one at Rome stipulates thus, 'Do you engage to give to me this day at Carthage?' the stipulation is useless, because the fulfilment of the promise is impossible.

D. xiii. 4. 2. 6.

6. Conditions, which relate to time present or past, either instantly make the obligation void, or do not suspend it in any way as, for instance, 'If Titius has been consul, or if Mævius is alive, do you engage to give me?' For if the thing mentioned is not really the case, the stipulation is void; if it is the case, the stipulation is immediately valid: since things certain, if regarded

obligationem, licet apud nos incerta in themselves, although uncertain as far

sint.

as our knowledge is concerned, do not delay the formation of the obligation.

D. xlv. 1. 100; D. xii. 1. 37-39.

7. Non solum res in stipulatum deduci possunt, sed etiam facta: ut si stipulemur fieri aliquid vel non fieri. Et in hujusmodi stipulationibus optimum erit pœnam subjicere, ne quantitas stipulationis in incerto sit ac necesse sit actori probare, quid ejus intersit. Itaque si quis, ut fiat aliquid, stipuletur, ita adjici poena debet: si ita factum non erit, tum pœnæ nomine decem aureos dare spondes?' Sed si quædam fieri, quædam non fieri una eademque conceptione stipuletur, clausula erit hujusmodi adjicienda: 'si adversus ea factum erit, sive quid ita factum non erit, tunc poenæ nomine decem aureos dare spondes?'

7. Not only things, but acts, may be the subject of a stipulation: as when we stipulate, that something shall, or shall not, be done. And, in these stipulations, it will be best to subjoin a penalty, lest the amount included in the stipulation should be uncertain, and the plaintiff should therefore be obliged to prove how great his interest is. Therefore, if any one stipulates that something shall be done, a penalty ought to be added as thus: If the thing is not done, do you engage to give ten aurei by way of penalty?' But, if by one single question a stipulation is made, that some things shall be done, and that other things shall not be done, there ought to be added some such clause as this: "If anything is done contrary to what is agreed on, or anything agreed on is not done, then do you engage to give ten aurei by way of penalty?"

D. xlv. 1. 137. 7; D. xlvi. 5. 11.

TIT. XVI. DE DUOBUS REIS STIPULANDI ET
PROMITTENDI.

Et stipulandi et promittendi duo pluresve rei fieri possunt. Stipulandi ita, si post omnium interrogationem promissor respondeat 'spondeo.' Ut puta cum duobus separatim stipulantibus ita promissor respondeat 'utrique vestrum dare spondeo:' nam si prius Titio spoponderit, deinde alio interrogante spondeat, alia atque alia erit obligatio nec creduntur duo rei stipulandi esse. Duo pluresve rei promittendi ita fiunt, (veluti si post Titii interrogationem) Mævi, quinque aureos dare spondes? Sei, eosdem quinque aureos dare spondes?' respondeant singuli separatim 'spondeo.'

Two or more persons may be parties together in the stipulation or in the promise. In the stipulation, if, after all have asked the question, the promissor answers, 'Spondeo,' ‘Í engage;' for instance, when, two stipulators having each separately asked the question, the promissor answers, 'I engage to give to each of you.' For if he first answers Titius, and then, on another person putting the same question, he again answers him, there will be two distinct obligations, and not two co-stipulators. Two or more become co-promissors, thus, as if after Titius has put the question: 'Mævius, do you engage to give five aurei?' 'Seius, do you engage to give five aurei?' they each separately answer, 'I do engage.'

D. xlv. 3. 28. 2; D. xlv. 2. 4.

The word reus, strictly speaking, signifies the person who is liable, or subject, to a demand, but is used more generally to

signify a party to an obligation, whether active or passive: so here we have rei stipulandi, as well as rei promittendi.

It was immaterial whether the interrogation was put and answered in the plural, spondetis? spondemus; or in the singular, spondes? spondeo. (D. xlv. 2. 4.)

It was not only in contracts made verbis that there could be joint creditors and joint debtors. In a commodatum or depositum, for instance, the parties might agree that several persons should be subject to a common obligation, and each be bound for the whole. (D. xlv. 2. 9.)

1. Ex hujusmodi obligationibus et stipulantibus solidum singulis debetur et promittentes singuli in solidum tenentur. In utraque tamen obligatione una res vertitur: et vel alter debitum accipiendo vel alter solvendo omnium perimit obligationem et omnes liberat.

1. By virtue of such obligations, the whole thing stipulated for is due to each stipulator, and from each promissor. But, in each obligation, there is only one thing due, and if either of the joint parties receives the thing due, or gives the thing due, the obligation is at end for all, and all are freed from it.

D. xlv. 2. 2. 3. 1.

If we look to the thing which was the subject of the contract, we may say, however many were the joint parties, there was but one obligation, while, if we look to the persons by or to whom the promise was given, there were as many obligations as there were persons making or receiving the promise; if, therefore, the thing was given, that is, payment or performance made, the obligation was at an end, but the obligation binding on any one might be made to cease, as by the deminutio capitis of one of the co-promissors, without those binding on the others ceasing also. If, indeed, the aid of the law had been called in to enforce the obligation, the position of the parties was different. If one costipulator sued the promissor, all the other parties to the stipulation were thereby prevented from suing him; and if one co-promissor was sued, none of the others could be sued, the litis contestatio operating as an extinction of the debt; but under Justinian, when it appeared that there was a deficiency in what had been obtained from the promissor that had been sued, the others might then be sued to make up this deficiency. (C. viii. 41. 28.) The copromissor who had paid all could recover, as a partner, their shares from the others, if there was a partnership between them, and if not, he could recover by paying to the creditor the whole sum, but separating the payment, paying his share absolutely, and paying the rest as the price of having the creditor's actions transferred to him to use against the other co-promissors (beneficium cedendarum actionum); and probably, even if he had not actually made this separation, the prætor would allow him to bring an action against the other co-promissors in which he was feigned to have done it. (D. xxvii. 3. 1. 13.)

2. Ex duobus reis promittendi 2. Of two co-promissors, one may alius pure, alius in diem vel sub engage simply, the other with the

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A slave had no persona, that is, no capacity of acquiring civil or political rights. But his master, who had such a capacity, could make his own persona speak and act through the slave, who was thus only a channel by which the wishes of the master were expressed. (See Bk. i. Tit. 3. pr.) But although a slave could thus engage others for the benefit of his master, by a stipulation, he could not bind his master, and could not, therefore, be the promissor in a stipulation; hence, the text only speaks of the stipulations, and not of the promises, of slaves.

In plerisque persona defuncti vicem sustinet; the inheritance represented the person of the deceased in most things, but there were some things which the slave could not acquire for the inheritance, which he could acquire for a living master; a usufruct, for instance, being always attached to a person, could not be stipulated for by a slave before the inheritance was entered on. (D. xlv. 3. 29.)

1. Sive autem domino sive sibi sive conservo suo sive impersonaliter servus stipuletur, domino adquirit. Idem juris est et in liberis, qui in potestate patris sunt, ex quibus causis adquirere possunt.

1. Whether a slave stipulates for his master, or for himself, or for his fellow-slave, or without naming any person for whom he stipulates, he always acquires for his master. It is the same with children in the power of their father, in all cases in which they acquire for him.

D. xlv. 3. 15; D. xlv. 1. 45. pr. and 4.

What is said here of the children in potestate must be taken with all the limitations made necessary by the power they had to acquire a peculium for themselves. (See Bk. ii. Tit. 9.)

2. Sed cum factum in stipulatione continebitur, omnimodo persona stipulantis continetur, veluti si

2. If it is a license to do something that is stipulated for, the benefit of the stipulation is personal to the stipu

servus stipuletur, ut sibi ire agere liceat: ipse enim tantum prohiberi non debet, non etiam dominus ejus.

lator; for instance, if a slave stipulates that he shall have a right of passage for himself or beasts and vehicles, it is he himself, not his master, who is not to be hindered from passing.

D. xlv. 1. 130.

Even in this case the slave really acquires for the master. It is the master, and not the slave, who could enforce the stipulation by action. Of course this personal license to cross land is something quite different from a servitude. For a servitude eundi or agendi, stipulated for by the slave, could only be attached to the prædium of the master. (D. xlvi. 3. 17.)

3. Servus communis stipulando unicuique dominorum pro portione dominii adquirit, nisi si unius eorum jussu aut nominatim cui eorum stipulatus est: tunc enim soli ei adquiritur. Quod servus communis stipulatur, si alteri ex dominis adquiri non potest, solidum alteri adquiritur, veluti si res, quam dari stipulatus est, unius domini sit.

3. If a slave held in common by several masters stipulates, he acquires a share for each master according to the proportion which each has in him, unless he stipulates at the command or in the name of any one master, for then the thing stipulated for is acquired solely for that master. And whatever a slave held in common stipulates for, is all acquired for one of his masters, if it is not capable of being acquired for the other; as, for instance, if the thing he has stipulated to be given belongs to one of his masters.

GAI. iii. 167; D. xlv. 3. 7. 1.

TIT. XVIII. DE DIVISIONE STIPULATIONUM.

Stipulationum aliæ judiciales sunt, aliæ prætoriæ, aliæ conventionales, aliæ communes tam prætoriæ quam judiciales.

Stipulations are either judicial, or prætorian, or conventional, or common, that is, both prætorian and judicial.

D. xlv. 5.

The division of stipulations here given is based on the difference of the grounds on which they are entered into, the ground being sometimes the will of the parties, sometimes the direction of a person in authority.

1. Judiciales sunt dumtaxat, quæ a mero judicis officio proficiscuntur: veluti de dolo cautio vel de persequendo servo, qui in fuga est, restituendove pretio.

1. Judicial stipulations are those which proceed exclusively from the office of the judge, such as the giving security against fraud, or the engagement to pursue a fugitive slave, or to pay his price.

D. xlv. 1. 5; D. xxx. 69. 5.

Before the magistrate the parties were in jure, before the judex they were in judicio. (See Introd. sec. 98.) The judex sometimes ordered that the parties before him should enter into stipulations.