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The death of a third person was an uncertain term, which might be as legitimately affixed to a stipulation as any other uncertain time. The reason which prevented the stipulation post mortem meam or tuam did not apply.

17. Si scriptum fuerit in instrumento, promisisse aliquem, perinde habetur, atque si interrogatione præcedente responsum sit.

17. If it is written in an instrument that a person has promised, the promise is considered to have been given in answer to a precedent interrogation.

See PAUL. Sent. v. 7. 2. Ulpian says (D. ii. 14. 7. 12) that if, at the end of the instrument of an agreement, the words usually added were found, viz. rogavit Titius, spopondit Mavius, the agreement was taken to be a stipulation unless it was expressly shown that it was in reality only a pactum.

18. Quotiens plures res una stipulatione comprehenduntur, si quidem promissor simpliciter respondeat dare spondeo,' propter omnes tenetur: si vero unam ex his vel quasdam daturum se spoponderit, obligatio in his, pro quibus spoponderit, contrahitur. Ex pluribus enim stipulationibus una vel quædam videntur esse perfectæ singulas enim res stipulari et ad singulas respondere

debemus.

18. When many things are comprehended in one stipulation, a man binds himself to all, if he answers simply "I promise to give.' But, if he promises to give one or some of the things stipulated for, he is bound only with respect to the things comprised in his answer. For, of the different stipulations contained in the question, only some are considered to have been answered, as for each object a question and an answer are required.

D. xlv. 1. 83. 4; D. xlv. 1. 4, 5.

19. Alteri stipulari, ut supra dictum est, nemo potest: inventæ sunt enim hujusmodi obligationes ad hoc, ut unusquisque sibi adquirat, quod sua interest: ceterum si alii detur, nihil interest stipulatoris. Plane si quis velit hoc facere, pœnam stipulari conveniet, ut, nisi ita factum sit, ut comprehensum esset, committatur pœnæ stipulatio etiam ei, cujus nihil interest: poenam enim cum stipulatur quis, non illud inspicitur, quid intersit ejus, sed quæ sit quantitas sita in condicione stipulationis. Ergo si quis stipuletur Titio dari, nihil agit; sed si addiderit pœnam 'nisi dederis, tot aureos dare spondes?' tunc committitur stipulatio.

19. No one, as we have already said, can stipulate for another, for this kind of obligations has been invented, that every person may acquire what it is for his own advantage to acquire; but if a thing is given to another it is no concern of the stipulator. But if any one wishes to stipulate for another, he should stipulate for a penalty payable to him, so that if the promissor does not perform his promise, the stipulation for the penalty may be valid even for a person who had no interest in the performance of the promise; for when a penalty is stipulated for, it is not the interest of the stipulator that is regarded, but the amount fixed in the condition of the stipulation. If, therefore, any one stipulates that a certain thing shall be given to Titius, this is void; but if he adds a penalty, 'Do you promise to give me so many aurei if you do not give the thing to Titius ?" this stipulation binds the promissor. D. xlv. 1. 38. 17.

20. Sed si quis stipuletur alii, cum ejus interesset, placuit stipu

20. But, if any one stipulates for another, having himself an interest in

lationem valere. Nam si is, qui pupilli tutelam administrare cœperat, cessit administratione contutori suo et stipulatus est, rem pupilli salvam fore, quoniam interest stipulatoris fieri, quod stipulatus est, cum obligatus futurus esset pupillo, si male res gesserit, tenet obligatio. Ergo et si quis procuratori suo dari stipulatus sit, stipulatio vires habebit. Et si creditori suo, quod sua interest, ne forte vel pœna committatur vel prædia distrahantur, quæ pignori data erant, valet stipulatio.

the performance of the promise, the stipulation has been decided to be valid. Thus if he who has begun to act as tutor afterwards gives up the administration to his co-tutor, and stipulates for the security of the estate of his pupil, since it is for the interest of the stipulator that the promise should be performed, as he is answerable to the pupil for maladministration, the obligation is binding. So if a person stipulates that a thing shall be given to his procurator, the stipulation is effectual. So, too, is a stipulation that a thing shall be given to a creditor of the stipulator, the stipulator having an interest in the performance of the promise; as, for instance, that he may avoid becoming liable to a penal clause, or that his immoveables, given in pledge, should not be sold.

D. xlv. 1. 38. 20. 23.

See note on paragr. 4. The tutor was liable for all his co-tutor did. (See Bk. i. Tit. 24.)

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When the time was come, the stipulation would have nothing on which to take effect.

23. Si de alia re stipulator senserit, de alia promissor, perinde nulla contrahitur obligatio, ac si ad interrogatum responsum non esset, veluti si hominem Stichum a te stipulatus quis fuerit, tu de Pamphilo senseris, quem Stichum vocari credideris.

23. If the stipulator intends one thing, and a promissor another, an obligation is no more contracted than if no answer had been made to the interrogation; for instance, if any one has stipulated that you should give Stichus, and you understood him to refer to Pamphilus, thinking that Pamphilus was called Stichus.

D. xlv. 1. 137. 1.

Stipulatio ex utriusque consensu valet. (D. xlv. 1. 83. 1.) And if the seeming consent implied in pronouncing the words of the stipulation was vitiated by a mistake under which one party spoke of one thing and the other of another, the stipulation was void; but if the mistake was only with reference to something in,

or relating to, the thing they were speaking of, i.e. if they were really speaking of the same thing, but one party was under some misapprehension respecting it, the stipulation was valid. So it was valid if fraud or violence had been used to procure it; but though in such cases it was valid, the rights it gave were worthless under the jurisdiction of the prætor, who always allowed exceptiones doli, metus, &c., by which the action brought on the stipulation was repelled.

24. Quod turpi ex causa promissum est, veluti si quis homicidium, vel sacrilegium se facturum promittat, non valet.

24. A promise founded on a base consideration, as if a man engages to commit homicide or sacrilege, is not binding.

D. xlv. 1. 26, 27.

A thing was said to be promissum ex turpi causa, when it was promised, being itself illegal or immoral, or was the reward, or depended on the happening, of anything illegal or immoral.

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We have already noticed in Title 16 the cases of persons who joined in making the same stipulation or who joined in making

the same promise. We now come to the cases of persons who come in as accessories to the creditor or debtor. Many of the rules of law applying to the corei stipulandi or promittendi applied to these accessories; especially those rules applied so that if payment was made to the accessory of the creditor the debtor was free as against the creditor; and if the principal debtor or any of his accessories was sued, no further action could, until Justinian permitted it, be brought by the creditor against those who were not sued, the litis contestatio operating as an extinction of the debt.

Besides the principal parties to a stipulation, the stipulator and the promissor, there might be accessory parties, called respectively adstipulatores and adpromissores. The adstipulator either received the same promise as his principal did, and could, therefore, have the same actions, and equally receive or exact payment; or he only stipulated for a part of that for which the principal stipulated, and then his rights were co-extensive with the amount of his own stipulation. In the early law, the chief use of an adstipulator was, probably, to supply the place of a procurator at a time when the law refused to allow stipulations to be made by procuration. A might make a stipulation, and know that at the time when payment would be due he would be abroad. He, therefore, joined B in the stipulation, who could receive payment or bring an action in his place, and would be bound by an actio mandati to pay over to A whatever he had received.

Before the time of Justinian no one could stipulate validly for a thing after his own death (see Tit. 19. 13); and, therefore, those who wished to make such a stipulation joined an adstipulator with them, and this adstipulator could bring an action, or receive payment, after the death of the stipulator. As, in the days of Gaius, all contracts could be made by procuration, it appears from his account of the adstipulator, which is the only one we have, that the only use of the adstipulator was to make this stipulation post mortem suam valid. (GAI. iii. 117.)

The adstipulator could not transmit his right of action even to his heirs. His rights were purely personal, because he was selected by the stipulator, to whom he stood in the relation of a mandatary, from motives of personal confidence. (GAI. iii. 114.)

The adpromissores were accessory to the promise, in order to give the stipulator greater security. They were guarantees for the fulfilment of the promise (GAI. iii. 116), and these guarantees were termed sponsores when Roman citizens, as they pledged themselves by the word spondeo, a word which citizens alone could utter, and fidepromissores when peregrini (GAI. iii. 120), because, in binding themselves, they used the expression fide mea promitto.

The sponsores and fidepromissores held a position, in many respects, the exact converse of the adstipulator. They made the same promise as their principal, or one not so extensive, for they might only choose to become guarantees to a certain extent; they could not bind themselves for more than their principal was bound

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for. They were often employed to remove any objections that might be made to the capacity of their promissor, as, for instance, that he was impubes and contracting without the consent of his tutor. Their heirs were not bound (GAI. iii. 120), and they might recover from their principal by an actio mandati what they had advanced for him. (GAI. iii. 127.)

By the lex Furia (circ. 95 B.c.) their obligation was only binding for two years from the time when it could have been enforced against them, and the amount of the liability of all was divided equally among all living at the time when the guarantee could be enforced.

These restrictions, the limitation of the intervention of sponsores and fidepromissores to verbal contracts, and their obligation dying with them, made it necessary that there should be a more unfettered mode of becoming surety for a party to a contract. This was supplied by the introduction of the fidejussores, who could bind themselves in every kind of obligation, and who transmitted their obligation to their heirs. In the time of Justinian, sponsores and fidepromissores had been long obsolete, and as, under his legislation, stipulations post mortem suam were allowed, there was no longer any occasion for the intervention of adstipulatores, and, consequently, none of the additional parties to a verbal contract, except fidejussores, are mentioned in the Institutes.

Gaius mentions other laws besides the lex Furia, bearing on the subject of the additional parties to a contract; and as the effect of some of their provisions is traceable in what we read with respect to fidejussores in this Title, it may be as well to notice them here. (1) The lex Apuleia (102 B.C.) established a kind of partnership (quandam societatem) between the different sponsores or fidepromissores; any one of them who had paid the whole debt could recover from the others what he had paid in excess of his own share by an action pro socio. (GAI. iii. 122.) (2) A law, the name of which is illegible in the manuscript of Gaius, required that the creditor should give notice beforehand for what amount he was going to exact security, and how many sponsores or fidepromissores there were to be. (3) The provisions of the lex Furia (95 B.C.) have been noticed above. (4) A lex Cornelia (81 B.C.), referring not only to sponsores and fidepromissores, but to all sureties, and therefore to fidejussores (which, perhaps, shows the date of the first introduction of fidejussores), provided that no one should bind himself for the same debtor, to the same creditor, in the same year (idem pro eodem, apud eundem, eodem anno), for more than 20,000 sesterces. (GAI. iii. 124, 125.) (5) Lastly, a lex Publilia gave sponsores an advantage over any other sureties, for they were allowed, unless reimbursed in six months, to recover from their principal what they had paid by a special action (actio depensi), and if he denied his liability, they recovered double, or they might, without judgment, proceed to personal execution, manus injectio, against him. (GAI. iii. 127.)

Intercedere was the proper term for becoming bound for the

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